larly where it is not an ancient way. So, although usual, it is said to be unnecessary, to shew the termini of the way; 2 Saund. 158 c. R. v. Haddock, Andr. 145; yet, perhaps, it is safer to do 30. 1 Hawk. c. 76. s. 86, 87. But if stated, they must be stated correctly; for a variance between the indictment and evidence in this respect, would be fatal. R. v. Great Canfield, 6 Esp. 136. The indictment, however, must shew with certainty the part of the road which is out of repair, how many yards in length, how many feet in breadth, &c., 1 Hawk. c. 76. s. 88, 89; but see 2 Saund. 158 d., and that it is within the parish; See Cowp. 111. 3 T. R. 309; and if the parish be situate, part in me county and part in another, the indictment must be against the whole parish, although the road out of repair were in a part of the parish lying in one county only; R. v. Inhabitants of Clifton, 5 T. R. 498. See 4 Bur. 2507, cont.; but the venue must nevertheless be laid in the county where that part of the road out of repair was situate.

Fine. As to the levying and application of such fine, see 13 G. 3. c. 78. s. 47. 12 East, 366; and us to costs, see Id. s. 64. The indictment shall not be removed by certiorari, (except at the instance of the prosecutor, Cowp. 78.) unless the obligation to repair come in question. Id. s. 24.

General issue.

And J. S. and J. N. two of the inhabitants of the said parish of Fryern Barnet, by A. B. their attorney, for themselves and the rest of the inhabitants of the said parish, come into court here, and having heard the said indictment read, say, that they are not guilty of the said premises in the said indictment above specified and charged upon them; and of this they put themselves upon the country, &c. See ante, p. 49.

Evidence for the prosecution, under the general issue.

1. The prosecutor must prove that the road or street in question is a public highway, that is to say, a way open and common to all persons. 1 Hawk. c. 76. s. 1. See 8 T. R. 634. 11 East, 376 n. 5 Taunt. 125. 1 Camp. 260. 4 Camp. 16. And if the termini be set out in the indictment, they must be proved as laid. R. v. Great Canfield, 6 Esp. 136.

2. He must prove that the part of the road in question, out of repair, is within the parish charged by the indictment; and any local description given of the part out of repair, must be proved as laid. See ante, p. 62. But want of certainty in such description cannot be taken advantage of under the general issue. R. v. Hammersmith, 1 Stark. 357.

3. He must prove the part of the road so described, to be out of repair, as stated in the indictment. See 2 L. Raym.

4. It is not necessary, however, to prove the liability of the parish to repair; for the law presumes that, until the contrary is shewn.

5. It may be necessary to observe, that the surveyor of the parish is a competent witness for the prosecution, 13. G. 3. c. 78. s. 69, and also for the defendants. So, an inhabitant of the parish (even, it seems, the prosecutor himself, see 1 Stark. 357), is a competent witness for the prosecution, see 13 G.3. c. 78. s. 76, though not so for the defendants. 1 Barn. & Ald. 66. 15 East. 474.

Evidence for the parish, under the general issue.

Under the general issue, the parish may prove that the road in question is not a common highway, or that it is in good and sufficient repair, or that the part out of repair is not within the parish. 2 Suund. 158 b. in notis. R. v. Inhabitants of Norwich, 1 Str. 181, 182, 183. But they cannot prove the liability of particular persons, ratione tenure, or the like, to repair the road in question; that defence must be made the subject of a special plea, in all cases, R. v. St. Andrews, 1 Mod. 112. Anon. 1 Vent. 256. 1 Hawk. c. 76. s. 9. 2 Saund. 159. n 10, unless the parish have been relieved of their liability by a public statute. 3 Camp. 222. See 1 L. Raym. 725. 2 T. R. 106. 2 Barn. & Ald. 179.

Plea, that others ratione tenuræ are bound to repair.

And J. S. and J.. N., two of the inhabitants of the said parish of Fryern Barnet, by A. B. their attorney, for themselves and the rest of the inhabitants of the said parish (excepting one A. C.), come into court here, and having heard the said indictment read, say, that our lord the King ought not further to prosecute the said indictment against the inhabitants of the parish last aforesaid (excepting the said A. C. as aforesaid); because they say that as to the said part of the said highway in the said indictment described to be ruinous, miry, deep, broken, and in great decay, the said A. C., by reason of his tenure of certain lands and tenements called , lying and being in the said parish, ought to repair and amend the said part of the said highway so alleged to be ruinous, miry, deep, broken, and in decay as aforesaid, when and so often as there should be occasion, [as the said A. C., and all those who held the said lands and tenements for the time being, from time whereof the memory of man is not to the contrary, hitherto were used and accustomed, and of right ought to do, and the said A. C. still of right ought to do]: And this they the said J. §. & J. N. are ready to verify; wherefore they pray judgment, and that they and the rest of the inhabitants of the said

parish of Fryern Barnet (excepting the said A. C. as aforesaid), by the court here may be dismissed and discharged from the said premises in the said indictment above specified. See the precedents, C. C. C. 322. 391. 4 Went. 162. 171. 176. 184. 6 Went. 411. It is not necessary (although usual) to allege the prescription, as in the above precedent between the crotchets. 2 Saund. 158e. (n.9). It is usual, also, after stating the liability to repair ratione tenuræ, to add a special traverse of the liability of the parish to repair; but this is improper, and probably demurrable, as being a traverse of a conclusion of law. See 1 Saund. 23 n. 5. 2 Id. 159 a. (n. 10). See, however, R. v. Inhabitants of Ecclesfield, 1 Barn. & Ald., 348. It may be necessary here to mention, that an individual cannot be bound by prescription to repair a highway, unless it be in respect of the tenure of his land, taking of toll, or other profit. 2 Saund. 158ƒ. (n. 9). Nor can a parish get rid of its liability to repair, and throw the burthen upon an individual, by reason of any agreement between the individual and others. 3 East, 86.

*

Replication.

And hereupon N. W. (the clerk of the peace or clerk of the arraigns) who prosecutes for our said lord the King in this behalf, says, that by reason of any thing in the said plea above pleaded in bar alleged, our said lord the King ought not to be precluded from prosecuting the said indictment against the said inhabitants of the said parish of Fryern Baruet: because he says that the said A. C. ought not to repair or amend the said part of the said highway so alleged to be ruinous, miry, deep, broken, and in decay as aforesaid, by reason of his said tenure, in manner and form, as in and by the said plea is above supposed and alleged and this he the said N. W. prays may be enquired of by the country. And the said J. S. and J. N., for themselves and the rest of the inhabitants of the parish of Fryern Barnet aforesaid, do the like. Therefore let a jury, &c. &c.

Evidence.

:

In order to support this plea, the defendants must prove that A. C. is the occupier of the lands and tenements mentioned in the plea; for it is the occupier who is liable, whether he be owner or not. R. v. Watts, 1 Salk. 357. R. v. Bucknell, 7 Mod. 55. Prove also, either that these lands were formerly granted, to be holden by the service of repairing this part of the highway in question; or that A. C., or those who occupied the lands before him, were always used and accustomed to repair it, from which circumstance such a grant will be presumed. Where the occupier of land is bound, ratione tenure, to repair

a highway, and the land is afterwards divided among several occupiers, each occupier is liable for the repair of the whole, and he may have his remedy over against the others for con. tribution. R. v. Buccleugh, 1 Salk. 358. 2 Saund. 159 n. 9.

The record of an acquittal upon a former indictment against the parish with respect to the same piece of highway, is no evidence for the defendants; for it might have proceeded upon other grounds than the nonliability of the parish to repair. R. v. St. Pancras, Peake, 219. So, the record of a former conviction, although conclusive against the parish upon the plea of not guilty, Id., unless fraud or want of notice can be shewn, 2 Saund. 159 a. (n. 10), yet it is not, it should seem, evidence against them, when they plead specially that an individual or corporation, &c. are bound to repair. But the record of a judgment after verdict against the parish, upon such a plea, would, it should seem, be conclusive evidence against the parish, upon their pleading the same plea to any subsequent indictment. See 3 Camp. 444.

Plea that a particular division of the parish is bound to repair.

And J. S. and J. N., two of the inhabitants of a certain district or township called A. in the said parish of Fryern Barnet, by A. B. their attorney, for themselves and the rest of the inhabitants of the said district or township, come into court here, and having heard the said indictment read, say, that our lord the King ought not further to prosecute the said indictment, so far as respects the inhabitants of the district or township aforesaid; because they say that the said parish of Fryern Barnet is, and from time whereof the memory of man is not to the contrary, hitherto has been divided into three districts or townships called A., B., and C.; and that the inhabitants respectively of the several districts or townships of A. and C. have from time whereof the memory of man is not to the contrary, hitherto been used and accustomed to repair and amend the several and respective highways situate and lying in their said respective districts or townships, independently of each other; and that so much of the said highway in the said indictment mentioned as leads from lies within the said district or township of A., and so much of the said highway as leads from lies within the said district or township of B., and so much of the said highway as leads from lies within the said district or township of C; (see R. v. Inhabitants of Bridekirk, 11 East, 304 ;) and that the said part of the said highway in the said indictment described to be ruinous, miry, deep, broken, and in great decay, lies in that part of the said parish of Fryern Barnet, called the district or township of C.; and by reason of the premises aforesaid, the inhabitants of the said

to

to

to

district or township of C. ought to repair and amend the part of the said highway last aforesaid, independently of the inhabitants of the said district or township of A. in the said parish: and this they the said J. S. and J. N. are ready to verify; wherefore, for themselves and the rest of the inhabitants of the said district or township of A., they pray judgment, and that they and the rest of the said inhabitants of the said district or township, by the court here may be dismissed and discharged from the said premises in the said indictment above specified. See 2 Saund. 160 n. 10. The inhabitants of B. should in this case plead a similar plea, and the inhabitants of C. should (I think) plead the general issue. It is necessary that the prescription should be pleaded; for if judgment were given against the parish, whether after verdict on the general issue, or by default, it would be conclusive evidence afterwards that the whole parish is bound to repair, R. v. St. Pancras, Peake, 219, unless fraud could be shewn, Id., or unless the defence in the former case were managed by the district in which the road lay, and the other districts had no notice of the prosecution, in which case the court would give leave to the other districts to plead the prescription to the subsequent indictment. R. v. Townsend, Doug. 421. 2 Saund. 159 a. (n. 10). and see 2 Camp. 494. See the precedents, C. C. C. 392. 6 Went. 394. 410. 411. and see particularly the case of R. v. Inhabitants of Ecclesfield, 1 Barn. & Ald. 348.

Replication.

Commencement, as ante, p. 370, to the and then thus:] that the inhabitants respectively of the several districts or townships of A. and C. have not, from time whereof the memory of man is not to the contrary, hitherto been used or accustomed to repair and amend the several and respective highways situate and lying in their said respective districts or townships, independently of cach other: and this he the said N. W. prays may be enquired of by the country. &c. see ante, p. 370. Ör the prosecutor may traverse the fact of the part of the road out of repair being within the district of C.

Evidence.

Prove that the districts of A. and C. have been accustomed, as far as aged witnesses can recollect, each to repair the highways within its own district. That the way is out of repair, is impliedly admitted by the plea; and that the part in question lies within the district of C., is impliedly admitted by the above replication. As to the effect of a record of a former conviction or acquittal of the parish, in evidence, see unte, p.

371.