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Encroach

ment to be

taken down by the surveyor.

Highways. the surveyor who hath the care of any such road, to cause such hedge, ditch, or fence, to be taken down, or filled up, at the expense of the person or persons to whom the same shall belong; and it shall and may be lawful for any one or more justice or justices of the peace of the limit where such offence shall be committed, upon proof to him or them made upon oath, to levy as well the expenses of taking down such hedges as aforesaid, as the several and respective penalties hereby imposed, by distress and sale of the offender's goods and chattels, in such manner as distresses and sales for forfeitures are authorized and directed to be levied by virtue of this act.

Court may award costs to the prosecutor or defendant upon an indictment

LXV. And be it further enacted, that it shall and may be lawful for the court before whom any indictment or presentment shall be tried for not repairing highways, to award costs to the prosecutor to be paid by the person or persons so indicted or presented, if it shall appear to the said court or present that the defence made to such indictment or presentment was frivolous; or to award costs to the person indicted or presented, to be paid by the prosecutor, if it shall appear to the said court that such prosecution was vexatious.

ment.

Sums assessed may be levied by distress and

sale of the offender's

goods.

Surveyor may be a competent witness.

Forfeitures, writs, and charges,

may be le

vied by distress and

sale of the offender's goods.

LXVIII. And be it further enacted, that if any person shall refuse or neglect to pay the sum or sums assessed upon him, by any assessment to be made in pursuance of this act, within ten days after demand thereof made, the same shall and may be levied by the surveyor, or any other person or persons authorized, by warrant under the hand and seal of one justice of the peace, having jurisdiction therein, by distress and sale of the goods and chattels of the person so refusing or neglecting, rendering the overplus to the owner or owners thereof, the necessary charges of making such distress and sale being first deducted; and, in default of such distress, it shall be lawful for any such justice to commit the person so refusing or neglecting to the common gaol, there to remain until he shall have paid the sum so assessed, and the costs and charges occasioned by such neglect or refusal.

LXIX. And be it further enacted, that the surveyor of any parish, township, or place, shall be deemed, in all cases, a competent witness in all matters relative to the execution of this act, notwithstanding his salary may arise in part from the forfeitures and penalties hereby inflicted.

LXXIII. And be it further enacted, that all penalties and forfeitures by this act imposed for any offence against the same, and all costs and charges to be allowed and ordered by the authority of this act, (the manner of levying and recovering of which is not hereby otherwise particularly directed,) shall be levied by distress and sale of the goods and chattels of the offender, or person liable or ordered to

pay the same respectively, by warrant under the hand and Highways. seal of some justice of the peace for the limit where such offence, neglect, or default, shall happen, or such order for payment of such costs or charges shall be made, rendering the overplus of such distress (if any be) to the party or parties, after deducting the charges of making the same; which warrant such justice is hereby empowered and required to grant upon conviction of the offender, by confession, or upon the oath of one or more credible witness or witnesses, or upon order made as aforesaid; and the penalties and forfeitures, when so levied, shall be paid, the one half to the informer, and the other half to the surveyor In what of the highway where such offence, neglect, or default, manner. to be applied. shall happen; to be applied towards the repair thereof, unless otherwise directed by this act; but in case the surveyor shall be the informer, then the whole shall be employed towards the repair of such highways: and in case such distress cannot be found, and such penalties and forfeitures, or the said costs and charges, shall not be forthwith paid, it shall and may be lawful for such justice, and he is hereby authorized and required, by warrant under his hand and seal, to commit such offender or offenders, or person or persons liable to pay the same respectively, to the common gaol or house of correction of the limit where the offence shall be committed, or such order as aforesaid shall be made, for any time not exceeding three months, unless the said penalty, forfeiture, costs, and charges, shall respectively be sooner paid; and if such offender or offen- How to proders, or person or persons, liable or ordered to pay the ceed when same respectively, shall live out of the jurisdiction of the lives withjustice hereby authorized to grant such warrant, it shall in another and may be lawful for any justice of the peace of the limit jurisdiction. wherein such person shall inhabit, and every such justice is hereby required, upon request to him for that purpose made, and upon a true copy of the conviction whereby such forfeiture or penalty was incurred, and of the order for the payment of such costs and charges, produced and proved by a credible witness upon oath, by warrant under his hand and seal, to cause the penalty or forfeiture mentioned in such conviction, and the costs and charges mentioned in such order, or so much thereof as shall not have been paid, to be levied by distress and sale of the goods and chattels of such offender or offenders, or person or persons liable or ordered to pay the same respectively, as aforesaid; and, if no sufficient distress can be had, to com. mit such offender or offenders, or person or persons liable, as aforesaid, to the common gaol, or house of correction of such limit, for the time and in manner aforesaid.

the offender

FLXXVII. Provided also, and be it further enacted, that Conviction, no conviction shall be had or made by virtue of this act, how to be unless upon confession of the party accused, or upon the

made.

Highways. oath of one or more credible witness or witnesses, or upon the view of a justice of peace, in the cases before mentioned; Inhabitant and that any inhabitant of any parish, township, or place, of a parish in which any offence shall be committed contrary to this act, shall be deemed a competent witness, notwithstanding his or her being an inhabitant of such parish, township, or place.

a good wit

ness.

LXXXI. [Proceedings not to be quashed for want of form, nor removable by certiorari.]

LXXXII. [Limitation of action, three months-general issue-treble costs.]

THE SCHEDULE (STATING THE FORMS) TO WHICH THIS ACT

REFERS.
No. XI.

To remove

nuisances

Notice from the Surveyor to remove Nuisances and Obstructions, and to cut Hedges, &c.

To C. D. of

In pursuance of the directions given by the act passed in the thirteenth year of the reign of his Majesty King George the Third, “For the and obstruc- Amendment and Preservation of the Highways," I, A. B., Surveyor of the Highways for the (parish, etc.) of

tious.

To cut and prune hedges, and to

do hereby give you notice, forthwith to remove the (dung, timber, stone, etc.) placed by you in a certain part of the king's highway, lying between

in the (parish, etc.) of

and

to the

obstruction and annoyance of the said highway; or (forthwith to cut, prune, and plash the hedges, and cut or prune the trees, and to open, cleanse, and scour the several ditches and watercourses, belonging to cut or prune yon) in or near the highway, lying between trees, and and in the (parish, etc.) of

to open and in or near the highway, lying between
scour ditch- and
es and wa-
tercourses.

to the intent that the water may be drained from the said highway, and that the sun and wind may not be excluded from such highway, to the prejudice thereof.

Dated this

day of

18

A. B.

When it is only to be widened, leave out

the words in Italic, and insert, 'But may be conve

No. XVI.

a Highway.

Order of two Justices for [widening] or [diverting and turning]

Middlesex.-We,

two of his

Majesty's Justices of the Peace for the said county, acting within the (hundred, etc.) of

county, having, upon view, found that a certain part of the highway between

(parish, etc.) of

and

within the said

in the in the yards, or

said (hundred), for the length of
thereabouts, and particularly described in the plan hereunto annexed, is
for the greatest part thereof narrow, and cannot be conveniently en-
larged and made commodious for travellers, without diverting and
turning the same; and having viewed a course proposed for the said
new highway, through the lands and grounds of
of the length of
yards, or thereabouts, and of the breadth of
feet, or thereabouts, particularly described in the plan hereunto annexed,
which we think will be more commodious to the public; we do hereby
order, that the said highway be diverted and turned through the
lands aforesaid; and that the Surveyor of the Highways for the (parish,

and

etc.) of

where the said old highway lies, Highways. do forthwith proceed to treat and make agreement with the said and

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for

For

thereto

the recompense to be made for the said ground, and for the making niently ensuch ditches and fences as shall be necessary, in such manner, with such larged and approbation, and by pursuing such measures and directions in all re- widened, by spects, as are warranted and prescribed by the statute, made in the adding thirteenth year of the reign of his Majesty King George the Third, the Amendment and Preservation of the Highways." And in case such from,' or agreement shall be made as aforesaid, we do order an equal assessment, not exceeding the rate of sixpence in the pound, to be made, levied, and and encollected upon all and every the occupiers of lands, tenements, woods, larged.' tithes, and hereditaments, in the said (parish, etc.) of

and that the money arising thereupon be paid

and applied in making such recompense and satisfaction as aforesaid, pursuant to the directions of the said act.

'widened

A. B.

E C. D.

No. XXXII.

'Presentment by a Justice of Peace.

Middlesex.-At the General Quarter Sessions of the Peace of our Lord the King, held for the said county, at in the said county, on (Tuesday) the day of

the reign of

in the

year of

before

Esquires, and others their companions, Justices of our said Lord the King, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed; A. B. Esquire, one of the Justices of our said Lord the King, assigned for the purposes aforesaid, by virtue of an act made in the thirteenth year of the reign of his Majesty King George the Third, " For the Amendment and Preservation of the Highways," (upon his own view,) or, upon information This to be upon oath, to him given by C. D., surveyor of the highways for the inserted (parish, etc.) of in the said county, doth present, when it is that from the time whereof the memory of man is not to the contrary, upon the there was, and yet is, a certain common and ancient king's highway, information leading from the town of in the said of the sur

(county, etc.) towards and unto

within the same (county,) used for all the King's subjects, with their korses, coaches, carts, and carriages, to go, return, and pass, at their will; and that a certain part of the same king's common highway, commonly called

being in the (parish, etc.) of

(county,) containing in length breadth

day of

situate, lying, and
in the same
yards, and in

feet, on the

in the

year of the and continually afterwards,

reign of
until the present day, was, and yet is, very ruinous, deep, broken, and
in great decay, for want of due reparation and amendment, so that the
subjects of the king, through the same way, with their horses, coaches,
carts, and carriages, could not, during the time aforesaid, nor yet can,
go, return, or pass, as they ought and were wont to do, to the great
damage and common nuisance of all the king's subjects through the same
highway going, returning or passing, and against the peace of our said
Lord the King; and that the inhabitants of the (parish, etc.) of
aforesaid, in the (county) aforesaid,
the said common highway (so in decay) ought to repair and amend,
when and so often as it shall be necessary.

In testimony whereof, the said A. B. to these presents hath set his

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veyor.

Note.-A presentment under this statute, charging part of a parish only with the repairs of a road, which is against common right, must shew expressly how the inhabitants of that part are liable. The form of the presentment in the schedule applies only to whole parishes: R. v. Penderryn, 2 T. R. 510. It must be observed, also, that the clause giving the magistrates authority to present (see section 24), is confined, in the terms of it, to offences committed contrary to the provision and intent of the act; and, therefore, whatever the offence may be, it is only presentable by a magistrate as an offence against the act. Therefore, as the form of presentment in the schedule is confined to cases of mere repair, a present ment for a nuisance by obstruction, must allege the offence to be done against the form of the statute: R v. Winter, 13 East, 257. For precedents of indictments for nuisances by obstruction, see Cro. Circ. Comp. 303, et seq. It has been held, that an indictment for laying soil in the highway, need not set out the length and breadth of the nuisance: Sayer, 98. If a way has been generally used by all ordinary carriages, that is sufficient to constitute it a highway; and, therefore, in an indictment for obstructing a way so circumstanced, it may be laid as a common highway for carts, carriages, &c. although it has always been arched over, and the archway be not sufficiently high to permit road waggons and other carriages of unusual dimensions, to pass under it. R. v. Lynn, 1 C. & P. 527. In every indictment against a parish for not repairing a highway, there

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and that it is situated in the parish. It is not necessary to state, that "from time whereof, &c, or from time immemorial," there was and is a common and ancient king's highway; it is sufficient to state, in a compendious manner, that it is a highway: Aspinal v. Brown, 3 T. R. 265. But the indictment must show, that the way is common to all the king's people; and, therefore, if it only charge a nuisance to a horseway, without adding that it is a highway, it is had : Cro. Eliz. 63. Though it is usual, it is said not to be necessary, to state the termini of the highway, 1 Russ. 329, R. v. Stoughton, 2 Saund. 158, b. note 7; but, if stated, they must be proved. nerally, every material variance from the description of the road will be fatal: thus, an averment that the highway leads from A to C., is not satisfied by evidence of a road leading from A. to B., and communicating with C. by means of a cross-road: R. v. Great Canfield, 6 Esp. 136. And where the highway is described as leading between A. and B., or from A. unto B., both those parishes are necessarily excluded; and an indictment will be bad if it fail to state, that the highway is in the parish indicted, although the part out of repair be expressly stated to be in the parish indicted, and be represented as part of the road before described: R. v. Gamlingay, 3 T. R. 513 In a late case, however, Lord Tenterden is reported to have said, that to and from have frequently an inclusive meaning, and that he was by no means satisfied with the general rule laid down in R. v. Gamlingay, that they ought to be construed exclusively: R. v. Knight, 1 Man. & R. 219. It is said to be necessary to allege, in the presentment or indictment, to what part of the highway the nui

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