proceedings to originate in the jurisdiction where the defect exists, and provides that no certiorari shall be allowed to remove them. But this last proviso extends only to bridges which the county are bound to repair, and where a district or individual is charged or the duty comes in question, the 5 W. & M. c. 11, allows the removal, 2 Stra. 900. In cases of aggravated neglect or where there appears little chance of obtaining justice by preferring an indictment, the court of King's Bench will grant a criminal information against the party liable to repair, 1 Stra. 180. But the more usual course, as in the case of highways, is by indictment or the presentment of a magistrate, 2 Inst.

701.

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Indictment. When the liability to repair rests upon the Indictment. county at large, in order to expedite the proceedings, any persons who reside within it may be made defendants, and be compelled to pay the whole fine which the court may assess, and they will be forced to resort to their remedy at law, in order by a contribution to obtain remuneration from the county, Hawk. b. 1. c. 77. s. 3. The indictment must show what kind of bridge it is, which is charged as being in decay, whether for horses, carriages, or foot passengers only, 2 Ld. Raym. 1175. If the right to use the bridge be only at particular times, it must be so described, 4 Campb. 189. And where an indictment alleged that a bridge was a public carriage bridge, and also for the king's subjects passing and repassing on foot, and upon the evidence it appeared, that it had been used by passengers on horseback and on foot, and not with carriages, it was held, that the defendants could not be convicted of any part of the charge, Rex v. Inhabitants of Lancashire, per Bayley, J. Lancaster Summer Assizes, 1820. Stark. on Evid. part iv. $16. It must also state that the bridge is public, and show that it is in decay, Andr. 285. where a party is bound to repair ratione tenure, that circumstance must be set forth on the record. Thus even against a lord of the manor it will not suffice to charge a prescription without these expressions, 2 Ld. Raym. 792, 804. Where this duty is charged the indictment must show the place in which the lands are situate, 2 Hale, 181. The very terms "by reason of his tenure" should then also be inserted, and the courts will not allow the words “ owner and proprietor" to be substituted in their room, 1 M. & S. 439. But in presentments by the grand jury there is no occasion to show who ought to repair, it is sufficient if the defect be

Plea, &c.

shown, and the bridge stated to be public, Andr. 285. Where
an indictment stated that an ancient bridge situated within the
parishes of M. and P. was out of repair, and that the in-
habitants of the said parish of P. and town of M. aforesaid,
from time immemorial, by reason of the tenure of certain lands
in the parish of P. and town of M. have repaired the bridge,
it
was held
upon error, that the indictment was bad, because it
did not appear that the bridge was situate within the town, and
therefore that the inhabitants of the town were not liable unless
a special consideration were shewn, and that in this case, no
sufficient consideration was shewn, inasmuch as the inhabitants
could not hold land, and therefore could not be liable by reason
of law, 2 B. & C. 166. The rules already laid down, with
respect to indictments for suffering highways to be out of repair,
apply in general to bridges; except the difference in terms,
which arises from the prima facie liability being thrown in the
latter case on the county; and, in the former, on the parish.

Plea, &c.-It is generally laid down that it is not sufficient for the defendants to an indictment for not repairing a bridge, to plead that they are not bound to repair the whole or any part of the bridge, without shewing what other person is liable, and that if merely the general issue is pleaded, the whole burthen of repair will be thrown on the defendants, Hawk. b. 1. c. 77. s. 4. Bac. Abr. Bridges. But it seems from analogy to the case of highways, that this is to be understood only of indictments against the county, and not against any individuals or bodies corporate who are not of common right: bound to repair, because it lies on the prosecutor specially to state the grounds on which the latter are liable, and, therefore, on the principle already mentioned, they may negative these parts of the charge under the general issue, see ante, 572, 3. 2 Saund. 159, n. 10. It is also said that where the defendants plead, whether necessarily or otherwise, that others ought to repair and traverse the charge against themselves, the attorneygeneral may, in such case, take a traverse upon a traverse, by insisting that the defendants are bound to repair, and traversing the charge against the parties named in the plea; that, on this last traverse, issue must be taken, and that the attorney593] general may afterwards surmise that the defendants are liable to repair, and that the whole matter shall be tried by an indifferent jury, &c. Hawk. b. 1. c. 77. s. 5. In a plea by the inhabitants of a county, that the inhabitants of a particular

township have immemorially repaired the highway at the end of a county bridge, situate within the township, it is not necessary to allege any consideration for such prescription, 4 B. & A. 623. 1 B. & A. 348. S. P. ante. Though the county, under the plea of not guilty, can only prove that. the bridge was not a public bridge, or that it was in good condition, they may give evidence that particular individuals have been accustomed to repair, not immediately for the purpose of throwing the liability on them, but to afford ground for the jury to conclude that the bridge is not public, 2 M. & S. 262.

Certiorari. By sec. 5. of 1 Anne, stat. 1. c. 18. no present- Certiorari. ment or indictment for not repairing bridges, or highways at the ends of bridges, shall be removed by certiorari out of the county into another court. But this act does not prevent the prosecutor from removing the cause by certiorari, 6 T. R. 194. 3 B. & P. 354. S. C. The act extends only to bridges where the county is obliged to repair, 2 Stra. 900. A certiorari lies to remove an order made by the justices, concerning the repair of a bridge, pursuant to a private act of parliament, and the justices ought to return the private act upon which their order is founded, Dalt. 504.

Trial. No inhabitant of the county where the nuisance Trial. arises ought to sit as a juror on the trial, though, both at common law and by statute, he may be examined as a witness, 6 Mod. 307. 1 Anne, st. 1. c. 18. s. 13. And, when an impartial trial cannot be expected in the proper county, from the interest of the magistrates in the cause, the indictment may be tried in the county adjoining, 6 Mod. 307. 2 Burr, 859, 860. Hawk. b. 1. c. 77. s. 6. Ante, vol. i. 201. And where the bridge lies within the county of a city or town corporate, and the point in dispute is, whether the inhabitants of the city or the county at large ought to repair, on a suggestion of these facts on the record, and that consequently no impartial investigation can take place in either of those jurisdictions, the venire will be awarded into the county adjacent to the larger division, 1 Stra.

177.

Evidence. The preceding notes as to when an indictment Evidence. will lie for the non repair of a bridge, shew for the most part the requisite evidence, ante, 589, &c. We have also already

Judgment.

seen what may be given in evidence under the plea of the general issue, ante, 592, 3. Where upon an indictment against a county, the defendants pleaded that J. S. was liable ratione tenure, and it appeared that J. S. had purchased part of an estate, the owner of which, both before and after the purchase, had repaired the bridge, it was held that this was not sufficient evidence to support the plea, 16 East, 223. Where the indictment charged a corporation with a prescriptive obligation to repair a bridge, and a charter of a corporation granted by Edw. 6, was given in evidence, from the terms of which it appeared to be doubtful whether the corporation had before existed immemorially, and whether lands had not been given for the repair of the bridge, 14 East, 348, but parol evidence was given that the corporation had in fact repaired the bridge, as far back as living memory could go, it was held that the parol evidence and the charter might be taken in aid of each other, and that the preponderance of evidence was, that this was a corporation by prescription, although words of incorporation were used in the incorporating part of the charter only, and that the corporation were still bound to repair by prescription, and not by tenure, ib. By the 1 Ann. st. 1. c. 18. s. 13, upon the trials of informations and indictments for the non repair of bridges, the inhabitants of the town, corporation, county, &c. where the bridge is, are competent witnesses. Previous to this statute, such witnesses were in some instances held to be competent, on the ground of necessity, 2 Show. 47. 2 East, 561.

Judgment. The mode and nature of the judgment in case of bridges is similar to that in the instance of highways, as the object of the prosecution is like that to remove the present nuisance; and, in many cases, to settle on whom the future liability rests. By 1 Ann. sess. 1. c. 18. s. 4, the fine set on the parties convicted, is not to be returned in the Exchequer, but is to be applied to the repair of the bridge indicted, see ante, vol. i. 810. The court of quarter sessions cannot impose more than one fine, 4 B. & A. 469.

The sessions are not authorized to order the payment by the bridge-master to the clerk of the peace, of a per centage on all money raised for the repair of bridges in a particular district, in lieu of all his fees for indictments, presentments, &c. for bridges within it, although such per centage

was claimed as an ancient fee, and had been paid without dispute for a long period of time, 1 B. & A. 312.

Destroying, &c. bridges. By the 1 Geo. 4. c. 116. s. 2, Destroying, &c. such parts of all former acts relating to bridges as enact, that bridges. if any person or persons shall wilfully and maliciously blow up, pull down, or destroy any bridge, or any part thereof, or attempt so to do, or unlawfully and without authority receive or take away any works thereto belonging, or in any wise direct or procure the same to be done, such offender or offenders being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as a felon without benefit of the clergy, shall, from and after this act (viz. 25th July, 1820,) be, and the same are hereby repealed, see post, 665.

INDICTMENTS, &c. FOR NOT REPAIRING BRIDGES.
Essex.

That on, &c. there was and from thence hitherto Against a county for suffering a hath been and still is (b), a certain common and public bridge, public bridge to commonly called D. bridge, otherwise D. beam, situate and decay (a). being in the parish of H. in the county of Essex, in the common king's highway leading from the town of R. in the county aforesaid, towards and unto the city of L. (or to the town of

-, in the same county), being a common highway for all the liege subjects of our said lord the king (c) on foot, and with their horses, coaches (d), carts, and other carriages (e), to go, return, pass, repass, ride, and labour (ƒ) [upon and over every year, at all times of the year, at their free will and pleasure; and that the same, during all the time aforesaid, of right ough to have been used, and still of right ought to be used by all the said liege subjects for the purposes in that behalf aforesaid,] and that the said common and public bridge, on the said, &c.

(a) See other precedents, Cro. C. C. 8th ed. 313. Stark. 701. Williams, J. Bridges, and general note ante, 589 to 593.

(b) Most of the old precedents state that the bridge was immemorially public, but this is injudicious, see ante, 570.

(c) Sometimes," and his predecessors," are here inserted; but if the bridge was not immemorially public, those

words should be omitted.

(d) Ante, 576, note (f), as to "coaches;" and ante, 592.

(e) Ante, 592, if not for "carts," &c. omit them.

(f) The following allegation within the brackets is usually omitted in the modern indictments. If the right be qualified, the same must be described accordingly. 4 Campb. 189; ante, 592,

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