UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
^UJfe-^'^
TREATI^ ^^
OV THE — "
LAW OF WAYS,
INCLUDING
HIGHWAYS,
TURNPIKE ROADS AND TOLLS,
PRIVATE RIGHTS OF WAY, BRIDGES, AND FERRIES.
" There are four kinds of Ways : 1. A Footway. 2. A Horseway,
which includes a Footway. 3. A Carriageway, which inchides both Horse-
way and Footway. 4. A Driftway." — Selwyn's N. P. I'A'.V.i *.
" The erecting of a Bridge is but laying out a way." — 3 Mod. 294.
A Feury " is a common passage, which is no more than a common high-
way."_3 Mod. 294.
* This enumeration, although written to illustrate private ways, is, nevertheless,
equally applicable to highways.
BY
HUMPHRY W. WOOLRYCH,
i'.i
OF Lincoln's inn, barrister-at-law,
(author op the " LAW OF RIGHTS OP COMMON.")
LONDOxN :
SAUNDERS AND BENNING, LAW BOOKSELLERS,
,f
\
y (sUCCESeORS TO J. BUTTERWORTH AND SON.)
'^ J^ 43, FLEET STREET.
0. ^'
' '* " ' 1829.
m
T
G, WOODFALLj ANQBL court, skinner street, LONDON.
Ci>
THIS WORK
IS RESPECTFULLY INSCRIBED
EMMOTT SKIDMORE,
FOR THIRTY SIX YEARSj
BOTH IN HIS OrnCE OF SURVEYOR, AS WELL AS BT DISIKTKRKSTED
PRIVATE EXERTIONS,
HAS CONSIDERABLY IMPROVED
THE ROADS
IN THE NEIGHBOURHOOD OF RICKMERSWORTH.
<]i^%l-
^'-■.-
PREFACE.
In the following Volume the various kinds of Ways are first
mentioned. The methods of claiming them are next considered,
together with the lawful user of them, as with so many horses,
&c. There are several obstructions upon roads which are occa-
sionally great inconveniences to passengers. These, with the
remedies, either prescribed by the legislature, or enforced by
private individuals, are next presented to the notice of the reader.
Some circumstances will be found which operate to destroy a
public highway, and others which defeat a private right of pas-
sage. A Chapter on extinguishment is devoted to the consider-
ation of these. The sixth and seventh Chapters are devoted to
the important subject of the due management and improvement
of roads, in the course of which the different liabilities to repair,
the diversion and turning of roads, together with the law of turn-
pike tolls, are discussed at length.
The law of Bridges is next introduced ; and the respective lia-
bilities to repair, together with the proper course to be pursued
when it is desirable to alter or widen Bridges, are mentioned.
The work concludes with three Chapters on Pleadings, Evi-
dence, and Costs, as they respect Indictments or Actions touch-
ing Ways.
By the word " Ways," of course both public and private
rights of that nature are understood, for, technically speaking, a
right of way is a liberty for a particular person or particular in-
dividuals to use a certain road, to the exclusion of other persons.
With reference to Acts of Parliament for the regulation of
roads, it is to be observed, that all the general statutes in force
upon that subject will be found in the ensuing work, but that
the local acts could not of necessity be included, by reason of
their infinite diversity.
This will account for the omission of the late Metropolitan
Act, which is, in effect, no more than a local act. It may be
had, like other local enactments, in a separate form, and must
be expounded according" to the same construction which governs
the general law upon the question.
The Author has purposely avoided even the setting out of
these general statutes at length, for to have done so would not
only have swelled this Treatise far beyond its present size, but,
inasmuch as every wise practitioner would consult the acts them-
selves upon the discussion of any question, it seems, moreover,
to be unnecessary.
1, Cloisters, Templk,
June 1829.
CONTENTS.
Page
A Table of the General Statutes now in force, for the regulation
of highway's and turnpike roads xxi
Index of Cases xxviii
CHAPTER I.
Of the several hinds of Ways, and of the ownership of the soil, trees,
^c, therein.
Division of ways 1
Ways threefold 2
Thoroughfare 3
Ways appendant, or in gross ib.
What is the King's highway ib.
Turnpike roads 4
Bridges 5
To whom the soil and profits of the highway belong ib.
CHAPTER II.
Hoiu ways may be claimed.
Ways, how claimed 9
Highway, how claimed ib.
Dedication of ways to the public 10
Partial dedication 13
Common ways 14
Private ways claimed ;
1 . By prescription ib.
2. By grant 15
Grant, how made ib.
What a good grant of a way, and under what words it will pass 1 7
Grant of way, when presumed 18
Private ways claimed :
3. From necessity 19
What way to be claimed ... 22
Way by custom 23
CHAPTER HI.
Of the User of Ways.
Drivers on highways , 26
Drivers on turnpike roads 27
viii Cuntenla.
Page
Children under 13 not to drive 28
Hi^hwavs, with how many horses to be used 29
Weights upon turnpike roads ib.
Table of weights 30
Additional weights ib'
Penalty on persons unloading before coming to the weighing-ma-
chine ib.
Supernumerary horses 31
Skidpans or slippers, on turnpike roads 32
Loaded carts on rail-roads ib.
Nails of wheels */••
Dogs • ib.
Cattle 33
User of private ways ib.
Way to be used at seasonable times ^. 35
Landlord may enter to use way ib.
What grantee of way may do o5
User, when ways are out of repair 36
CHAPTER IV.
Of Obstructions, or Inter riqjtions of Ways, with the Remedies.
1. What an interruption 37
No trees allowed ib.
Hedges, and boughs of trees 38
Gates 39
Stones ib.
Waggons, &'C 40
Pits ib.
Riding on footpaths 41
Driving horses ib.
Draw ing timber, stone, &c ib.
Suffering them to drag ib.
Using tipsticks, &c ib.
Slaughtering cattle ib,
l^mniers bulging out, i!tc ib.
'JVnts ib.
Blacksmiths' firc^ ib.
Bonfires ib.
Fireworks ib.
Bull-baiting, foot-ball playing, &'c ib.
Leaving waggons, &c., by the road ib.
Laying timber, &c. on the road 41
SuHlriiig filth to run along the road ib.
Mischiei' by l)igs 42
I^eaving stones, &c ib.
No windmill ib.
ImpoiMiding stray cattle ib.
ICncroachments forbidden 45
Drivers 45
Interruptions by wiliiil damage ib.
Williil mischief ib.
Cunlenlx. ix
Page
Damage to turnpike gates 46
Damaging lamps 47
Other interruptions in highway ib.
Gates 48
Wall ib.
House ib.
Twenty years' usage of a fair, or niaiket, no interruption 49
Inten-ni)tion of private ways ib.
2. What road to be used ib.
Highways 50
Private ways ib.
Towing paths 51
Way of necessity ib,
3. Remedies ib.
Indictment 52
Abatement ib. 56
Action 53
Against a freeholder 56
Quod pcrmittat 57
Action on the case ib.
Award 58
Covenant ib.
Injunction ib.
Mandamus ib.
No prescription against a prescription 59
CHAPTER V.
Of the Extinguishment, Suspension, and Revival of Ways.
Extinguishment of ways by virtue of acts of parliament 60
Notices 62
Turnpike law as to extinguishment 65
Extinguishment by virtue of enclosure acts 67
Extinguishment by unity of possession 70
Extinguishment of a way in gross 75
Private way not merged in public ib.
Way not extinct by the alteration of estate 74
Ways not devested by non-user for a time ib.
Suspension of ways ^ ib.
Revival of ways ib.
CHAPTER VI.
Of the Repair of Ways.
I. Repair of highways 76
1. Who to repair highways ih.
The parish ib.
Exceptions to liability of parish 78
Liability by reason of enclosure 80
Occupier 82
X Contents.
Page
Dikes and ditches 82
Roads in two parishes 84
counties 85
By-laws 86
II. Repair of what highways, of fences adjoining to them, &c. ... ib.
III. Highways, how repaired . . 87
1 . Proceedings to compel repair ih.
Certiorari 89
Costs 90
Fines 91
Contribution 92
Letting lands 93
Repair of turnpike roads ib.
Statute duty on highways 95
One wain and two men, if lands, &:c., be not worth more than
£50 annually ib.
1. Occupier of ^€'50, over and above the £50 last mentioned :
2. Occupier of £50 in any other parish :
3. Occupier of £50 not keeping a team, to find
1. Three horses, or,
2. Four oxen and one horse, or
3. Two oxen, and two horses :
Two able men with the above 96
Such as keep carts, to perform statute duty, or pay ib.
Three able men, if team be not wanting 97
Time, eight hours ib.
Penalties on owner for the neglect of his servants ib.
Notice by surveyor ib.
Penalties on defaulters ib.
Statute duty composition 98
Surveyor may require it ib.
Rate of composition 99
Person keeping carriages, &c 100
Ploughs, but no carriages ib.
Defaulters in payment of composition money ib.
Persons not occupying ^30 per annum, how relieved loi
Notice of time for compounding ib.
How new inhabitants may compound ib.
Equality of composition ib.
Surveyor to pay turnpike treasurer a proportion of the compo-
sition money 102
Penalty on surveyor //;,
Justices may direct duty to be performed in kind ib^
Teams belonging to occujMers under £30 annual value, excepted ib.
Labourer to do duty in kind ib.
If part of teams, itc., only be required, to be determined by lot ib.
Order of justices suspends the power of compounding while it
lasts 103
Time when no duty to be performed ib.
Statute duty composition insufficient ib.
Notice ib.
Further aflsessment 104
Statute duty on turnpike roads ih.
List of porbons liable 105
Contents, xi
Notice 105
Adjudication of justices i^.
Penalty on defaulters i^.
Penalty on surveyors not delivering lists 106
If no higluvay surveyor, other person to deliver lists ib.
Composition U),
Surveyor how reimbursed ih.
Statute duty dispensed with ib.
Materials for repair, how to be got 107
Stones from quarries ib.
Gravel, Sand, Sec ib.
No prejudice to river, house, &c ib.
Damage ib.
No stones from sea beach ib.
Surveyor may go on enclosed grounds ib.
Not being a garden, &c ib.
Damages , 108
Burnt clay ib.
Consent of owners, when necessary , ib.
Surveyor buying materials how to be reimbursed ib.
Contracting for carrying away materials ib.
Materials in other parishes when to be dug 109
Surveyor to fence off pits, holes, &c n,.
Penalties on surveyor for neglect n,.
Damaging mills, &c 110
Materials from turnpike roads if,.
Purchase of lands for materials 1 1 1
Penalty for taking materials away i n,.
Lands for repositories for materials 112
Surveyor not to be concerned in contract for materials ib.
Compensation money iiow levied j^.
Canal Companies may lower their rates for the carriage of mate-
rials 113
Persons claiming to be privileged from duty ii,.
Exemptions from paving rates /^_
Repair of private ways 114
CHAPTER VII.
Of the Improvemenl^ and Management of Highways and Turnpike-
Roads.
Section I. Of the Improvement of Ways. — Section II. Of the Ma-
nagement of them.
SECTION I.
Of the Improvement of Ways.
1. Widening, diverting, turning, highways 116
Highways not to be more than thirty feet wide ib.
No house, &c. to be touched ib.
Xll
Contenls.
Page
Satisfaction to owners 116
What to be done in case of the refusal of owners to treat il>'
Land taken to be a public highway 1 1 7
Costs of these proceedings '^•
Footway diverted 1 1 ^
Turning highways with consent of owner ib.
Consent of agent insufficient 119
Widening, diverting, &c. of turnpike roads 1 20
Road ruinous '^•
Buying lands for improvement of roads 121
What to be done if the parties disagree ib.
Expenses of jury and witnesses 122
Proviso for absence of owner ib-
Trustees to fence roads 123
What to be done with the money assessed as a recompense for
lands purchased, damages, &c ib-
Compensation money above ^200 due to particular parties, indi-
viduals, &c. .' 124
Sum under j^soo, but above £20 125
Sum under t'20 H-
Person in possession entitled primdfacie 126
Trustees to pay conveyance in certain cases ib.
Land not wanted, to be sold ib.
Sales to be at the expense of trustees 127
Direction posts and stones ib.
Mile stones, &c. on turnpike roads 128
Penalty for defacing mile stones, &c ib.
Consent to turnpike bill by affidavit ib.
SECTION IL
0/ the Management of Highways and Turnjnke Roads.
1 . By justices of the peace 1 30
Justices of cities ib.
Special sessions ib.
Justices to settle damages ib.
Justices may be trustees of turnpike roads 131
Justices to administer oaths v* ^^•
2. Trustees or commissioners of turnpike roads ib.
Their qualifications ib.
Quakers ib.
Property 132
Trustees losing qualification not to act ib.
Trustees interested, or keeping a victualling house, not to act. . . . 133
Exceptions ib.
Trustees not to hold places of profit, or be concerned in con-
tracts, &c ib.
Penalty • ib.
('ontracts void ib.
Excc|)tions 154
Trustees having shares in canal companies which convey mate-
rials excepted ib.
Appointment of new trustees 135
Cuntenlt. xi4i
Page
Meetings of trustees 135
Meetings on emergencies ] 36
General annual meeting ib.
Default of attendance ib.
Orders, &:c. to be kept in a book 137
Books of account ib.
Penalty on clerk 138
Accounts, when to be audited H;.
Penalty on officers jl,.
A statement of revenue to be transmitted to the clerk of the
peace il,.
Penalty on clerk i^.
Officers of the road generally, to accoimt when required 159
Proceedings upon neglect ib.
Officers are to be appointed by trustees 140
Treasurer and clerk to be separate persons, &c 141
Surveyor and clerk not to be the same person ib.
Salary ib.
Security ib.
3. Surveyors of highways and turnpike roads 142
Appointment of the surveyor of highways ib.
His qualification 143
Penalty on persons refusing to serve 144
What to be done if there be no list ib.
Penalties for disobeying the directions of the Act ib.
Salary, how raised 145
Assistant surveyor ib.
Bond by surveyor, when taken ib.
Death, Sec. of surveyor , 14(5
Printed abstracts of act to be given to surveyors ib.
Duty of surveyor 147
Duty of assistant surveyor 148
Surveyor of the turnpike ib.
Accounts of surveyor , 149
Monies, tools, books, &c ib.
Surveyor to deliver a duplicate of books, &c., to the succeed-
ing surveyor ib.
Penalty in case of default 1 50
On death of surveyor, his executors to account ib.
Fees to clerks of justices . . ib.
4. Treasurer and clerks of turnpike trusts 151
5. Collector of tolls ib.
Death, &:c. of collector jb.
Refusal to give up possession of toll-house 152
Collector absconding {b^
Collector to put up his name ib.
Offences by collectors, how punished i/,^
When not punishable by indictment 153
Tolls, how to be collected ^'/a
Payment of, how to be enforced by collectors ib.
Collector to have carriages weighed ib.
Trustees may have carriages weighed 1 54
Toll-keepers not to gain a settlement 155
xiv Contents.
Page
II. OF TOLLS.
Notice of meeting to let tolls 155
Tolls to be put up at the last year's produce 1 56
Mode of bidding • - ib.
Private tender, if not sold by auction ib.
Tolls at future auction to be put up at any sum ib.
Penalty on farmer, &c ib.
Trustees may bid ib.
Tolls not to be let for more than three years ib.
Trustees may appoint some one to bid 157
Tolls may be let in lots, and then each lot may be put up at any
sum ib.
Table of tolls ib.
Lessees may appoint persons to receive ib.
Contractors, when they may be relieved from their contract 158
Tolls payable, in respect of what carriages ib.
Carriages affixed to others ib.
Extra half tolls, &c 159
Exceptions ^ ib.
Exception in favour of particular wheels 160
Wheels may be measured 161
Penalty on persons resisting the measurement ib.
Exceptions to the rules as to the breadth of wheels, &c ib.
Reduction of tolls < ib.
Trustees may subsequently advance the tolls 162
Consent of creditors to reduction ib.
Reduction or advance to be in proportion ib.
Additional tolls for overweight 1 63
Additional tolls for watering roads ib.
Tolls generally, not rateable 164
Penalties for evading toll ib.
Disputes concerning tolls to be settled by a justice ib.
Of Exemptions from Toll.
His Majesty's horses, &c 165
Materials for roads and bridges ib.
No toll from surveyor ib.
Manure ib.
Agricultural produce 166
Horses employed in husbandry ib.
Going to or returning from church ih.
Rector, &c. attending duty ib.
Vagrants and prisoners ib.
Mails ib.
Horses of officers, &c. on duty 167
Baggage, sick officers, &'c , ib.
Ordnance or public stores ib.
Yeomanry horses, &c ib.
County elections ib.
Horses returning from pasture ib.
Proper parochial ciuircli, &c ib.
Contents. xv
Page
Horses crossing turnpike road, kc 168
Empty carnages 1 69
Baskets, &c ib.
Post horses, &c ih.
Exemptions from tolls for overweight 1 75
Penalty on persons claiming exemptions without being entitled. . 174
Mortgages of Tolls.
Trustees may borrow money ih.
Copies of mortgages ib.
Assignment of mortgages 175
Mortgages renewed 176
Recovery of subscriptions ib.
Mortgagees to account ib.
Ejectment by one mortgagee ib.
But he must pay the other mortgagees 177
Trustees may pay off creditors ib.
Mortgagee keeping possession unlawfully, to incur a forfeiture . . ib.
Trustees not personally liable ib.
Of toll-houses 178
Erecting, puUing down gates, Sec ib.
Justices when to remove gates ib.
Lamps at toll-gates 179
Toll-houses vested in trustees ih.
To be sold if useless ib.
Lessees may occupy toll-houses ib.
Trustees when to take possession of toll-houses from lessees 180
Other tolls for passing over ways ib.
Penalties under 13 Geo. IIL c." 78 181
Penalties, &c. under 13 Geo. IIL, how recovered, when no spe-
cific mode is otherwise pointed out 182
What to be done, when the offender is out of the jurisdiction
of the justice ib.
Six days allowed before distress ib.
Action or information for penalties 183
Notice ib.
Credible witness ib.
Oath ib.
Satisfaction for special damage ib.
Tender of amends ib.
Penalties, &c. under turnpike acts 184
Justice may summon, &c ib.
Prosecutor how to proceed 185
Penalties under former acts ib.
Appeal under highway act ib.
turnpike acts 186
Costs 187
Certiorari ib.
Forms of proceedings 188
Actions against trustees ib.
Actions asainst the whole body of trustees 191
xvi Conlenls.
Page
Notice of action against turnpike officers 192
Limitation of actions 193
Within three calendar months ib.
Mortgagee 194
Actions by officers ib.
Prosecutions and actions by trustees, &c ib.
foil collector ib.
CHAPTER VIII.
Of Bridges and Ferries,
Sect. I. Of Bridges.— Sect. II. Of Ferries.
SECTION I.
Of Bridges.
1 . What a public bridge ^ 195
2. Who to build it, and how built 196
Changing the situation of bridge . 197
Right of property in bridge ib.
3. Other incidents 198
Tolls of bridge not rateable ib.
No alehouses on bridges ib.
Damaging bridges, &e ib.
4. Of the repair of bridges, &c 199
Who to repair public bridges ib.
The county ib.
Inhabitants 200
Who inhabitants within the stat. of 22 Hen. VIII ib.
City or body corporate 201
What bridges ib.
New bridges 202
Exceptions to the general rule, that counties, cities, &c. must
repair bridges 203
Division of lands will not relieve from the obligation 205
W^hat repairs are to be done 206
Bridges need not be widened at common law ib.
They may be under 43 Geo. Ill ib.
.Justices may contract for the repair of bridges 210
Persons appointed to sec that bridges are repaired 211
Repair of private bridges 213
Remedies for compelling the repair of bridges 214
Presentment ib.
No certiorari 215
Fine «*•
Penalties 216
(jcneral issue ib.
Remedies in case of the non-repair of private bridges ib.
Contents. xvii
SECTION II.
0/ Ferries.
Page
Right of ffrrvman ^17
Custom for inhabitants to be exempted from tlie tolls of a ferry. . 218
Ferry not rateable '^•
Way-leave, when rateable 219
CHAPTER IX.
0/ Indictments and Pleading!; generally on the Subjeet of Ways.
Indictments for non-repair of highways. Nuisances therein, &c. 220
Asaiast a parish ib.
What way 224
Length and breadth 225
Road, when in two parishes, to be repaired ad medium Jilum vice 226
Must be laid within the parish it>.
Contra paccm ^l>-
Indictment against a township, t^vrc 227
Indictment auainst a person ratione tenurce 229
No indictn)ent against trustees of the road 230
Plea in abatement 231
Pleas to indictments for non-repair ib.
Not guilty by parish il^-
Pleas by individuals 233
Indictments for obstructions, &c 234
Indictments for not performing statute duty 235
Pleas to the above i'>.
Indictments for non-repair of bridges ib.
Such an indictment may be against a parish _ 238
Covenant for non-payn"ient oV expenses for rebuilding a bridge. . 239
Pleas to indictments for non-repair of bridges ib.
Declarations for disturbance of ways 240
Termini 241
What kind of way 245
Parish or vill Ob.
Appendancy 246
Action for disturbing a private bridge 247
Other declarations ib.
Covenant 248
Use of a way ib.
Assise and quod pcrmittat ib.
Joinder in action ib.
Of pleas 249
Termiin, how set out therein 250
Private ways, how claimed 252
By prescription ib.
Who entitled 255
Quantity of way ib.
Termini of private ways ih.
Plea of right of wav by copyholder 256
b
xviii Contents.
Page
Way, how pleaded by a particular tenant 257
V/ay by grant ib.
Way of necessity ib.
Some issue to be tendered 259
Denial of way ib.
Confession and avoidance 260
De injuria, ^-c 261
Duplicity 262
CHAPTER X.
Of Evidence.
Who good witnesses 265
In general, not inhabitants of a parish 264
Nor inhaoitants of a hundred 265
Toll or nuisance ib.
Prosecutor of indictment may be 266
So may the inhabitants of the county, upon a question as to the
repair of a bridge ib.
Inhabitants when made good witnesses by statute 267
Surveyor of highways ib.
Trustees of turnpike roads ib.
Collectors ib.
Actions against trustees ib.
Penalty on witnesses not attending summonses under turnpike act 268
Books of proceedings by turnpike trustees, evidence ib.
Evidence against a parish upon indictments for non-repair of
their ways 269
Reputation 271
Aw ard 272
Defence by parish ib.
Evidence upon an indictment against a lesser district than a parish 273
Evidence upon an indictment against a particular individual 274
Defences against the indictment ratione icnurce 275
By reason of inolosurc 276
Evidence upon indictments for obstructions of highways ib.
Evidence upon indictments for the non-repair of bridges 277
Defences thereto ib.
Special pleas thereto 278
Rnlione lenurcE 279
Corporation 280
Authority of clerk of commissioners ib.
Eviilence to support special pleas of public rights of way ib.
FJvidcnce in actions for disturbing rights of way 2S2
Evidence in actions for disturbing ferries 283
Ejectment ib.
Evidence to prove a right of way by prescription 284
For a freeholder ib.
Hearsay ib.
Termini 286
Evidence of a rif;ht of way for a copyholder 287
Evidence of custom 288
Contents. xix
Page
Evidence of way for a tenant 228
Evidence to sustain a right of way by grant ib.
Evidence to sustain a claim of a riglit of way from necessity .... 290
Evidence in answer to these claims of rights of way 29 1
CHAPTER XI.
Of the Trial, Judgment, Costs, 8fc.
Venire on indictment against parish 292
Against a county for the non-repair of a bridge it).
Private rights of way 29.'5
New trials on indictments ib.
New trials in civil actions 29fi
Judgment ib.
Fines ib.
Certificate of repair good evidence 297
Conviction ib.
Costs 298
In civil actions respecting rights of way ib.
Judge's certificate 501
Staying proceedings till payment of costs in a former action ;';.
Inhabitants presented for non-repair ib.
ADDENDA.
Owner's name painted on waggon, &c., under 13 Geo. III. c. 78.
s. 60 303
Mandamus ib.
No costs where inhabitants submit to a fine ib.
Revenue of turnpike trusts 304
Forms and Precedents 305
General Index 3G9
b2
*
A TABLS
OF THB
GENERAL STATUTES
NOW IN FORCE,
FOR THE
REGULATION OF HIGHWAYS AND TURNPIKE ROADS.
Page
H. 3. 9. c. 15. (Bridges) . . . .196
Ed. 1. 13. (St. of Winton) c. 5. 297, n.
Ed. 3. 2. c. 6. (to keep the sta-
tute of Winton) . . . 297, n.
H. 8. 22. c. 5. (Bridges.)
s. 1 200
S. 2 & 3 ib.
S-4 211
S. 5 214
S. 8 211
S. 9 78
W. & M. 5. & 6. c. 1 1. s. 6. (Cer-
tiorari) 215
8&;9. c. 16. (Ad Quod
Damnum) 4, n.
Ann. 1 St. 1. c. 18. (Bridges.)
8. 4 216
s. 5 215
6. 7 216
S. 8 207
S. 9 216
S. 13 266
Geo. 2. 12. C..29. (Bridges).
S.' 1 213
5. 14 210
c. 35. (Bridges.)
6. 1 196
Geo. s. 13. c. 78. (The High-
way Act.) . . .119
p.ig«
Geo. 3. 13. C. 78. S. 1, . . 143, 144
s. 2 145
s. 3 146
S. 4 148
5. 5 146
6. 6 37
S. 7 .38
S. 8 83
s. 9 39
s. 10 40
s. 11 ib.
s. 12 147
s. 13 38
s. 14 83
s. 15 116
S. 16 38, 117
s. 17. . . . 60, 61. 65.
B. 18 117
s. 19. (repealed for the
most part by 55
G. 3. C. 68. S. 1.)
61. 82, n.
s. 20. . . . . 61, n.
8. 21 118
s. 22 61
S. 23 88
8. 24 89
8.25 88
8. 26 128
Table of General Stalutcs.
Geo. 5. 13. c. 78.S. 27.
S. 28. . .
s. 29. .
s, 50. . .
s. 31, .
s. 32. .
s. 55. .
Page
. . 107. 184.
. . . 107
. . 108. 184.
106. 108. id. n.
. . . .110
. . . 109
. . . .110
s. 34. (repealed by 34
G. 5. c. 74. s. 1.)
s. 35. (Ditto.)
g. 36 96
S. 37 97
s. 58. (repealed by 34
G. 3. c. 74. s. 1.)
s, S9. (Ditto.)
s. 40 101
s. 41 lb.
s. 42 100
S. 43 105
S. 44 102
S. 45. . . . 105, 104.
s. 46. . 104. 106. 108, n.
S. 47 92
S. 48. . . . 149, 150
s. 50. . . 109. 112
s. 51 148
S. 52 93
s. 53 46
S. 54 130
S. 55 146
S. 56 29
9. 57 31
s. 58 ib.
S. 59. . . 29. 31, 32.
s. 60. . . 27. Add. 303
5. 61. . . . 26, 27. 45.
s. 62 65. 130
s. 63 198
6, 64 44
S. 65 89
8. 66 ib.
s. 67 103, n.
8. 68. ... 104. 117.
8. 69 267
B. 70 188
8. 71 147
R. 72 182
8. 73 44, 182
fi. 74.
«. 7.5.
». 76.
«. 77.
9. 78.
. 182
183
. . ib.
183. 263
. . 187
Page
Geo. 3. 13. C. 78. S. 79. . . . 187
s. 80 ib.
s. 81. ... 186, 187
s. 82 193
s. 83. (Time of com-
mencement of the
act.)
s. 84 150, n.
s. 85 ib.
s. 86 146
s. 87 129, n.
s. 88 ib.
\ Geo. 5. 15. c. 64. (To regulate re-
pair when the
highway is in
two parishes.)
s. 1 85
s. 2 ib.
s. 5 ib.
s. 4 ib.
s. 5 ib.
s. 6 ib.
s. 7 ib.
s. 8 84, n.
c. 74. (Statute duty on high-
ways.) .... 99, 100
s. 1. (repeals 13 G.
3. c. 78. s. 34, o5.
and 38.
s. 2, . . . 96. 97. 100.
s. 3. (repealed by 44
G. 3. c. 52. s. 1.)
s. 4. . . 96, 100, 101
s. 5 101, n.
s. 6. . . . 102, 105.
s. 7 119
43. c. 59. (Bridges.)
s. 1. . . 208
s. 2, . . . 207
s. 3 208
s. 4. . . . 199
S. 5 197
s. 6. . . . ib. n.
s. I.ib.n. 199,n.207.
44. c. 52. (Statute duty
composition)
R. 1. . . 99, ib. n.
s. 2. . . 99, n. 100
52. Clio. (Bridges.)
s. 1 212
s. 2 ib.
t. 3 ib.
8. 4 ib.
Table of General Statutes.
Page
Geo. 3. 52. c. 110. S. 5. . . . 210
54. c. 90. (Bridges.)
s. 1.
s. 2.
c. 109. (Statute duty
composition
and assess-
ment.)
s. 1. . . 104. 108.
8. 2 104
S. 3. ii. 106, 108. 144
s. 4. . . . 99
s. 5. . . 99. 100
s. 6. . . . 100
s. 7 98
s. 8. . . . 130 n.
s. 9. (not to alter
former acts.)
c. 170. s. 5. (Settle-
ment of"
toll-gate
keepers.)
55. c. 68. (Appeal against
stopping up
highways) 68. 82, n.
Schedule, &c. ... 62, n.
s. 1. (repealed
by 13 G. 3.
c. 78. s. 19.)
S. 2. . 61, 62. 118
s. 3. . . 61, 6S
5. 4, . . 63
s. 5. . 63, n.
s. 6. . . 99, n.
c. 143. (Bridges.) 211
s. 1. , , 209
s. 2, . . ib.
s. 3. . . 210
s. 4. . . ib.
B. 5. . .211
c 95. (General return
of turnpike-
trust revenues.)
Addend, p. 304
Geo. 4. 3. c. 126. (General turn-
pike act of 1822). 124. 129. n.
6. 1. (Repealing
several sta-
tutes.)
s. 2. (Not to re-
vive repeal-
ed acts.)
8. 3. . ' . 185
5, 4. (Act to ex-
tend to all
local acts.)
Geo. 4.3. c. 126. s. 5. (Repealed
by 4 G. 4.
C. 95.)
s. 6. (Repealed
by id. s. 3.1
S. 7. . . 159
s. 8. (Repealed
by 4 G. 4.
c.95. S. 4.)
F. 9. . . 161
s, 10. (Repealed
by 4 G. 4.
C.95.S. 18.)
5. 11. . . 161
s. 12. . .30
s. 13. . . ib.
s. 14. . . ib.
s. 15. . . 163
s. 16. . . 173
s. 17. . . 158
s. 18, , . ib.
6. 19, (Repealed
by 4 G, 4.
c.95. s. 12.)
s. 20. . . 31
s. 21. . . 142
S. 22. . , 154
s. 23. . , ib.
S. 24. . . 148
S. 25. , . 142
S, 26. . . 168
S. 27. . . 169
s. 28. . . ib.
s. 29, . . ib.
s. 30. . ,170
S, 31. . . 159
s. 32, (Repealed
as to one
provision
only by 4
G, 4. c.
95. S. 25.) 167
5. 33. . .166
6. 34. (Repealed
by 4 G. 4.
c. 95. s.
22.)
8. 35. . .1 73
S. 36. . . 174
S. 37. . .157
S. 38. . .Tl
S. 59. . .153
Table of General Statutes.
Geo. 4.
PSfTO
P«g«
S.c.
126, f. 40. . .165
Geo. 4. Z. c. 126. s. 71. . . 141
e. 41. . . 164
s. 72, . 137. 268
s. 42. (Repealed
8. 73. . 137, 138
by 4 G. 4.
6, 74. , .189
c. 95. s.
S. 75. . . 133, n.
11.)
S, 76. . 141, 151
S, 43. . .162
8. 77. (Repealed
s, 44. . . ib.
by 4 G. 4.
8. 45. (Repealed
c. 95. s.
by 9 G. 4.
46.)
c.'77.s. 3.)
s. 78. . . 138
8. 46. . . 179
s. 79. . . ih.
S. 47. . . 176
s. 80. . . 139
s. 48. . .177
S. 81. . . 175
8.49. . . ib.
s. 82. (Repealed
8. 50. (Repealed
by 9 G. 4.
by 4 G. 4.
c. 77, s. 6.
C. 95. s.
s. 83. (Repealed
48.)
byid. s. 8.)
S. 51. . 155. 164
S. 84. . 121, 132
s, 52. (In part
S. 85. . . 122
repealed
S. 86. . 66. 124
by 4 G. 4.
8. 87. . , 122
c. 95. s.
8. 88. . 66, 120
27.) . 154
S. 89. . 66. 127
8. 55. (Repealed
s. 90.to95.inclu-
by 4 G. 4.
sive. (Re-
c. 95. s.
pealed by
29.)
7 & 8 G.
8. 54. . . 152
4. c. 24. S.
8. 5.5. . . 156
8.)
8. 56. (Repealed
8. 96. (Repealed
by 4 G. 4.
by 4 G. 4.
c. 95. s.
c. 95. 8.
51.)
64.)
8. 57. . . 156
s. 97. . Ill, 112.
8. 58. . . 158
s. 98. . .111
8. 59. . . 267
s. 99. . . I10,n.
S. 60. . . 179
8. 100. . .111
8. 61. . . 131
S. 101, . ib.
8. 62. . . 132
8. 102. . .112
8. 63. . . ib.
s. 103. . lis
8. 64. 131, 132, 133
s. 104. (Repeal-
8. 65. . 133, 134.
ed by 4
i. 66. . . 135
G. 4. c.
8. 67. (Repealed
95. s, 79.)
by 4 G. 4.
9. 105. . . 106
c. 95. 9.
8. 106. . 94
38.)
s. 107. . . 213
$. C8. (Repealed
8. 108. . ib.
by 4 G. 4.
s. 109. . . 107
C.95.S.40.)
8. 110. . .77
B. 09. . . 136
8. HI. . 120. 122
t. 70. . . ib.
8. 112. . . 94
Table of General Statutes.
Page
Pago
Geo. 4. 8. c.
1526. s. 113. . 83
6. 114. . . 40
G. 4, c.
95. 6. 86.)
6. 115. . 84
Geo. 4.
3, C. 126,8. 146 , 151
6. 116. . . 39
B. 147. . , 193
s. 117. . ib. j
s. 148. . 188
s. 118. . . 45 1
s. 149, . 129, n.
S. 119. . 128 i
s. 150. . 129, n.
«rl20. . . 163 ■
s. 151. . . 128
S. 121. . 42.47
s, 152. , 129
s. 122. (Repeal-
s. 15.5. . . ib.
ed by 4
Geo. 4.
4, c. 16
. 8. 1. (Provisions
G. 4. c.
as to tolls
95. s.
on lime.) 166, n.
74.)
s. 2. . . ib.
S. 123. . . 43
s. 3. (Act might be
S. 124. 44, n. 61, n.
altered during
S. 125. . 39
the session.)
S. 126. . . 32
C. 35
(Meetings of trus-
8. 127. . 42
tees of turnpike
G. 1-28. (Repeal-
roads.) , . 137
ed by 7
C. 95
. (General turnpike
& 8 G, 4.
act of 1823.) 129, n.
c.27.the
s. 1. (Repealing 3
general
G. 4. c, 126,
felonies
s. 5.)
repealing
8, 2. . . 52
act.)
B. 3. (Repealing 3
9. 129. (Repeal-
G. 4. C. 126.
ed by 4
s. 6.)
G. 4. c.
8, 4. (Repealing 5
95.S. 14.)
G. 4. C.126,
B. 150 . . 28
s. 8.)
s. 131. . ib.
s. 5. . . . 160
s. 1S2. . 27. 45.
s. 6, . . ib.
s. 133. . 194
8. 7. . . . ib.
s. 134. . - 268
s. 8. . . 158
8. is 5. (Repeal-
I
8, 9. . . . ib.
ed by 4
s. 10, . . 174
G. 4. c.
s. 11. (Repealing 3
95.S.70.)
G. 4. c. 126.
8. 136. 140
s. 42.)
s. 137. . . 267
s. 12. (Repealing 3
s. 138. . 268
G, 4. c. 126.
8. 139. . . 155
j
6. 19,) 158, n.
S. 140. . 140
s. 13. . . 158
S. 141. 40, 122. 184
s. 14. (Repealing 3
8. 142, (Repeal-
G, 4. c. 126.
ed by 4
s. 129,)
G. 4. c.
s. 15. . . 27, n.
95.S. 85.)
S. 16. . . 32
9. 143. 185
S, 17. . . 173
s. 144. . . 183, n.
s. 18. (Repealing 3
8. 145. (Repeal-
G. 4. c. 126.
ed by 4
«. 10.)
XXVI
Table of General Stalnles.
Page
Geo. 4. 4,C. 95. S. 19. . , 161
S. 20. . . 162
S. 21. . . 173
s. 22. (Repealing 3
G. 4. c. 126.
S. 34.)
s. 23. . 165, n.
s. 24. . . 165
s. 25.(Repealingin
part 3 G. 4.
c. 126.S. 32.)
165. n.
8.26. . . 167, n.
s. 27.(Repealingin
part 3 G. 4.
c 126. s. 52.)
s. 28. . . 157
s. 29. (Repealing 3
G. 4, c. 126.
S. 53.)
s. SO. . 152, 153
S. 31. . 155. 164
S. 32. . . 131
S. 33. . . 132
S, 34. . .131
S. 35. . , 152
s. 36. . . ib.
S. 37. . . 135
s. 38. (Repealing 3
G. 4. c. 126.
S. 67.)
s. 39. . 135, n. 136
s. 40. (Repealing 3
G. 4. c. 126.
9. 68.)
S. 41. . . 136
S, 42. . . 137
S. 43. . . 141
5. 44. . . ib.
s. 45. . . 112
s. 46. (Repealing 3
G. 4. c. 126.
s. 77.)
6. 47. . 139, 140
s. 48. (Repealing 3
G. 4. c. 126.
s. 50.)
8. 49. . . 152
R. 50. . . 1 53
8. 51. (Rcpculing3
t;.4. c. 126.
S. 56.)
8. 52. . . 157
f. 53, . . ib.
Page
Geo. 4. 4. c. 95. s. 54. . . 157
s. 55. . . 127
s, 56. . . 112
s. 57. . .179
S. 58. . . ib.
S. 59. . . 180
S. 60. . . 177
s. 61. . . ib.
s. 62. (Repealed by
9 G. 4. c. 77.
s. 1.)
S. 63. . . 127
s. 64. (Repealing 3
G. 4. c. 126.
s. 96.)
s. 65. . . 123
s. 66. . . ib.
s. 67. . . 83
s. 68. . . 94
s. 69. . . 130
s. 70. (Repealing 3
G. 4. c. 126.
s. 135.)
s. 71. . . 112
S. 72. . 40. 45, 46
s. 73. . . 29
s. 74. (Repealing 3
G, 4. c. 126.
S. 122.)
S. 75. . . 33. 43
s. 76. . . 33
S. 77. . . 106
5. 78. . . 93
8. 79. (Repealing 3
G. 4. c. 126.
s, 104.)
8. 80. . . 105, 106
s, 81. . . 106
s. 82. . . ib.
s. 83. . . 185
s. 84. . . 267
». 85. (Repealing 3
G. 4. c. 126.
S. 142.)
s. 86. (Repealing 3
G. 4. c. 126.
S. 145.)
s. 87. . 66. 186
8. 88. . . 140, n,
8. 89. . . 30
6. 90. . .129, n.
8. 91. . . ib.
f. 92. . . . ib.
t. 93. . . ib.
Tdb/f uf General Staliilcs.
Page
Geo. 4. 4. c. 95. s. 94, (Act might
be altered
during the
session.)
Geo. 4. 5. c. C9. (Justices of the
peace to act as
trustees ot"
turnpike roads.) 131
Geo. 4. 7 & 8. c. 24. (Turnpike
acts amend-
ment act.)
s. 1. . 134
S. 2. . . 189
5. 3. 177.189
s. 4. . 141
s. 5. (Repeal-
ed by 9
G. 4. c.
77. s. 4.)
s. 6. . 47. 179
6. 7. . 123
6. 8. (Repeal-
ing 3 G.
4.C.126.
s. 90. to
95.)
S. 9. . . 125
s. 10. . ib.
S. 11. . . ib.
s. 12. . 126
s. 13. . . ib.
s. 14. . U>.
8. 15. 110, n.
s. 16. . 42
S. 17. . . 213
S. 18. . 66
Geo. 4. 7& 8. C.24. s. 19.
s. 20.
Page
. 124
129, n.
140, n.
C.30. S. 14. . . 47
Geo. 4. 9. c. 77. (Turnpike acts
amendment act.)
s. 1. (Repealing 3
G. 4. c. 95.
c. 30. s. 62.)
s. 2. . 137. 269
8. 3. (Repealing 3
G. 4. c. 126.
s. 45.)
s. 4. (Repealing 7
& 8 G. 4. c.
24. s. 5.)
s. 5. . . 178
s. 6. (Repealing 3
G. 4. c. 126.
s. 82.)
s. 7. . .176
s. 8. (Repealing 3
G. 4. c. 126.
s. 83.)
s. 9. . . 120
s. 10. . .175
s. 11. . . ib.
s. 12. . .176
s. 13. . . ib.
s. 14. . . 140
S. 15. . . 141
S. 16. . .153
S. 17. . . 174
S. 18. . . 185
S. 19. . . 140, n.
s. 20. . 129, n.
AN
INDEX OF CASES.
Absob v. French 50
Agmondesham v. Cornwallis .... 234
Alban V. Brounsall 24J. 245
Aldred's case 59
Allen V. Ormond, 2. 55. 73. 224. 269.
281. 290.
Allen V. Waldegrave 239
Alyns V. Sparks 242
Anonymous —
[Acts of ownership by lord of
waste] 5
[Right of way to take wreck] . . 21
[Original liability of parish to
repair] 76. 78
[Lime under old Act not ex-
empt from toll] 165, n.
[Pleading a cart-way] 245
[Evidence] ." 272
[Evidence] repair of bridges ... 281
[Trial] 292,295
[Mandamus] Addenda 303
[Information] 297, n.
Armitage ex parte 4, n.
Aspindall v. Brown 221
Asser V. Finch 299
Aston's case 58
Austin's case 276, n.
Aycrl 222, n.
B.
Baker v. Brcrcman 240, n. 248
Ball V. Herbert 24
Ballard v. Dyson 9, 86
Page
Banning's case 242. 245
Bazing v. Skelton 1 92
Beale v. Moor 299
Beaudely v. Brook 16
Bendlows v. Kemp 54
Bertie v. Beaumont 254
Blake v. Clattie 245
Blissett V. Hart 240
Blockley v. Slater 240
Blundell V. Catterall 24
Bolt V. Stennett 221
Bosworth V. Limbrick 35
Boulton V. Crowther 120, n. 190
Boyfield v. Porter 108. 184
Bragg V. Banning 245
Brecknock and Abergavenny
Navigation v. Pritchard .... 216
Brent v. Whitchcock 113
Brett v. Whitchot, S. C ib.
Bridges and Nicholl's case 237
British Cast Plate Manufacturers
V. Meredith 191
Browne's case 48
Browning v. Wright 248
Buckby v. Coles 20. 72
Bullard v. Harrison 51. 258
Bush v. Steinman 55
Buszard v. Capel 59
Butterfield v. Forrester 55
C.
Campbell v. Wilson 19. 289
Cantrel v. Church 58
Cantrell v. Stephens 255
Cardiff Bridge case 215
Index of Cases.
Page
Chamberlin v. Songhurst 163, n.
Chambers v. Eaves 1 73, n.
V. Johns 234
V. Williams 171, 172
Cheeseman v. Hardham 244
Chichester V. Lethbridge, 14, 15. 25.
255
Churchman V. Tunstal 217
Clark V. Cogge 20
Clerk V. Wood 285
Clerke v. Cheney 243
Climson v. Pool 49
Cobb V. Selby 55
Coble V. Allen 241
Cockerill v. Allanson 299
Cornelius v. Taylor 256
Cortis V. Kent Water-works
Company 114
Creach v. Wilmot 74, n.
Crisp V, Price, Bart 248
Crispe v. Belwood 181, n.
D,
Dacre, Lord, his case 229, n.
Davison v. Gill 64. 120. 291
Dawney v. Dee 246
Day V. Hanks 299
De Beauvoir v. Welch 67
Dell V. Babthorpe 70
De Ponthieu v, Pennyfeather 63 n. 64
Dewey v. White 275
Dike and Dunston's case 56
Doe, d. Banks, v. Booth 221, n.
By water, v. Brandling 17
Jackson, v. Wilkinson .... 5
' Pring V. Pearsey 6
Dorney v, Cashford 240
Dougan V. BoUand 151, n.
Dovaston v. Payne 33
Duncombe's case 4. 50. 81
Dutton V. Taylor 20, 21. 71
Eckersall v. Briggs 114
Eddington v. Borman 113
Edwards v. Wilson 1 18, n.
Egerly's case 225
Emson v. Williamson 74
Everett v. Cooch 1 91
Page
Fairtitle, d. Mytton, v. Gilbert . . 178
Falmouth, Lord, v. George. .Add. 304
Fawcctt V. Fowlis 98. 298
Fearnloy v. Morley 171
Fentimau v. Smith 241
Fineux v. Hovenden 54
Flower v. Adam 55
Foster's case 82
Fountain v Cook 286
Fowler v. Sanders 39 n. 54
Freeman v. Line 247
Frost V. BoUand l5l, n. 189, n.
G.
Gamford v. Nightingale 56
Gerrard v. Cook 56
Godley v. Frith 15. 246
Gogle's case 293
Goodtitle, d. Chester, v. Alker, 5, 6. 53
Gray v. Shilling 1 70
Greasly v. Codling 54
Gresham, Lady, her case 227
Griffiths V. Davies 299
Grose v. West , 3
U.
Hall
Smith 191
-■ [Costs] 301
Halsey's case 222. 225
Hamer v. Raymond 246
Hammond v. Brewer 222
Harber v. Rand 67
[Costs] 299
Harding v. Wilson 18
Harper v. Charlesworth 13. 68
Harris v. Baker 190
v. Curnow 58
Harrison v. Brough 167
V. James 169, n.
• — — V. Parker. 198
V. Rooke 243
Hart V. Basset 54
Hawke v. Bacon 74, n.
Hawkins v. Wallis 249
Headlam v. Headley 6
Hebborne's case 52, 234
Heigate v. Williams 70
Hendy v. Stephenson .......... 258
XXX
Index uf Caxes.
Henn's case 50. 8 1
Heshonl V. Wills 180
Heynsworth v. Bird 289
Hickinbotliani v. Perkins 169
Hicks V. Webbe 261
Higgins V. Jennings 299
Hodder v. Hohnan 34
Holbach v. Warren 240, n.
Holford V. Copeland 1 13
Holmes v. Goring 23. 72. 291
V. Higgins 211, n.
Holms V. Selfer 18. 262
Hopkins v. Barnes 300
Horn V. Taylor 22
V. Widlake 22. 252
Hoskin's case 82, 229
Houghton's case 91, n.
Houghton V. Butler 262
Howell V. King 34
Howton V. Frearson 20
Hubert v. Groves 54
Hulkley's case 222, n.
Humphreys v. Mears 190
I. & J.
Jackson v. Curvven, 171, 172. cf. id., n.
V. Shillito . . 243, 244, n. 286
V. Stacey '. 35. 287
James v.'Hayward 48
Jarvis v. Dean 13
Ibbotson V. Browne 299
Johnson v. Morris 260
Jones V. Bird 191
V. Hammond 240, n.
V. Hamond ib.
V. Owen Add. 503
Jordan and Ayliffe's case 70
Jorden v. A twood 71
Iveson V. Moore 54
K.
Kecnc's case 224
Keymer V. Summers 19
King V. Gough 166, n.
Kooystra v. Lucas 18
Lade v.Sheiihcrd.
Pa^e
Langford Bridge case 199. 239
Large v. Pitt 20
Laughton v. Ward, 54. 246. 255. 289
Leader v. Moxton 191
Lee V. Boothby 43, n.
Lethbridge v. Winter 12
Lewis V. Hammond 168
Leyton's case 91, n. 227
Livett V, Wilson 19. 289
Lloyd, Assignee of Warwick, v.
Heathcote 298
Loaring v. Stone 1 72, 1 73
Lodie V. Arnold 52. 252
Loddon Bridge case 205
Logan V. Burton . 68
Lowen V. Kaye 57. 44
Lucy's case 229
M.
Madox's case 224
Major V. Oxenham 1 68
Marlborough, Duchess of, v. Grey 281
Martin v. Vallance 260. 299
Mast V. Goodson 249
Matthews v. West London
Water Works 191
Mayor V. Knowler 114
Maynell v. Saltmarsh 54
Meriel v. Wymonsold 149, n.
Mersey and Irwell Navigation
Proprietors V. Douglas 246
Miles V. Rose 24
Moneypenny v. Hartland .... 21 1, n.
Morris v. Edgington 1 8. 58
Muston v. Yateman 259
N.
Newman v. Fletcher 1 78, n.
Newmarch v. Brandling I G
Norris v. Poatc 171
O.
Oldfield's case 20. 22
Osmond v. Widdicombe 165, n.
Othir V. Calvert 301
Index of Cases.
Page
Packer v. Welsted 20
Page V. Howard 61
Pain V. Partridge 54
V. Patrick 217
Parke v. Stewsam 242
Pashley v. Poole 301
Payne v. Partridge 196. 218
Peacock v. Harris 194
Pecliin V. Pawley 148
Peers v. Lucy 75
Peliiam, Lord, v. Haigne 181
V. Pickersgill .... ib.
Pelham v. Wiatt 7
Peter V.Kendal.... 2 17, 218. 240. 283
Phillips V. Davies 223, 224
V. Harper 168, n.
Pierse v. Lord Fauconbcrg 24
Pigott V. Thompson 188, n.
Pollard V. Casey '. 246
V. Scott 265
Pomfret v. Ricrof t 21
Postan V. Stanway 300
Proud V. Hollis 35. 257
R.
Raymond's case 224
Reed v. Jackson 282
Regina v. Brown 234
V. Buccleugh, Duchess, 77. 205
V. Bucknall 204, 205
[Evidence] . . 279
V. Cluworth Inhabitants, 91.
297
V. Sainthill 236, 237
• V. Kime 95. 235
V. St. Peter's Justices in
York 200. 213
• V, Stratford Inhabitants. . 87
V. Watson 206
V. Watts 49. 82. 274
V.Wilts Inhabitants, 197.215
[Trial] 292
Reignolds v. Edwards 22
Rex V. Adams 169, n.
All Saints St. Mary's
Inhabitants 225
Atwell 297, n.
Bagshaw 121, n.
Baldwin 145
Balnie 118
Page
Hex V. Barr 13
_ Bell 219
. -Blower 251
Bodenham 88, n.
Boston Corporation 180
Boyall 235
— Bridekirk Inhabitants .... 235
Bridgewater and Taun-
ton Canal Company 89, n.
Brookes 221. 225
• Bubwith Inhabitants .... 155
Buckeridge 77. 264
Buckingham, Marquis of, 225.
237
— Buckinghamshire Justices 160.
216
Inhabitants 201
Burbon Inhabitants. . 293, 294
Biu-gess 188, id. n. 224
• Bury & Stratton Roads'
Trustees 163
Cambridgeshire Justices 154, n.
Casson 1 20, n. 1 88
Chedderton Inhabitants. . 90
Cheshunt Inhabitants, Add.
303
■ Chigwell Inhabitants .... 293
Clace Inhabitants 188
Clifton Inhabitants .... 86. 90
Commerell and another. . 90
Corrock 229
Cottingham Inhabitants. . 115
Cotton 272
Crewe 119
Cripplegate 86
Cross 48
Cumberland Inhabitants 215
Dayrell 115
Dean Inclosure Com-
missioners 69
Denbigh Inhabitants 155
Denbighshire Justices . ... 145
■ Devon Justices 187
Inhabitants [Bridge]
196
[New Bridge] 202. 205
[Widening Bridge] 206
[Bridge — Pleading] 237
Dixon 77
Dorset Justices 207
Eardisland 270
East Lidford 225
Ecclesfield Inhabitants, 79,228
Elvet Inhabitants 1 55
XXXll
Index of Cases.
Page
Rex V. Essex Justices 64. 69
Inhabitants 213. 240
Eyre 198
' Fanshaw 229. 238
Farewell 88, n.
Finmore 90, n.
Flecknow Inhabitants .... 81
Freer 96, n.
Friar 297, n.
— Fylingdales Inhabitants . . 88
Gamlingay Inhabs. . . 222, 223
Glamorganshire Inhabitants,
202
• Glaston Inhabitants 221
■ Great Broiighton .... 78. 22?
Great Canfield 223. 269
. ' Haddock 221
Hamlyn 174
. Hammersmith . .231. 266. 270
Hammond 221
— Hamvvorth Inhabitants .. 215
• Harrow Inhabitants 222
• Hartford Inhabitants .... 226
' Hartshorn 151, n.
Haslingfield Inhabitants. . 272
Hatfierd Inhabitants, 3. n. 79.
224. 274
Hertfordshire Justices ... 64
Hillarsden 81
Hopper 261
— ■ Hornsey Inhabitants. . 89. 232
Houldgrave 208, n.
Hudson 10
Incledon 53. 91
Jolliffe 219
Jones 47
IretonInhabitants232.272.275
Islington Inhabitants. . 108, n.
■ Justices of 65
Kent Justices 65. 119
Inhabitants 202, 203. 277
— Kenyon 61. 120
— Kerrison 203, 204. 230
— Kcttlcworth 90
— Kingsmoor Inhabitants, 80. 228
— Kingston 149 n. 186, n.
-Kirk 119
— Knight 223
— Lacy 113
— Lancashire Justices 93
1 niiabitants [Bridge]
201
[Pleading] 237
[Evidence] 27 7
Page
Rex V. Leicester Justices 99, n.
Leominster Inhabitants 93. 233
Limehouse Inhabitants . . 223
Lincoln Inhabitants 206
Lincombe 91
Lindsey Inhabitants 203
Linkfield 227
Liverpool, Mayor of. . 76. 228
Llandilo district Com-
missioners 87
Lloyd 12
London Gas Light Com-
pany 113
Loughton Inhabitants. .. . 91
■ Lynn and Debney 224
Lyon 87. 224
Machynlleth and Pen-
negoes Inhabitants [Bridges] 204.
216.230. 236-
Manchester Water Works
Company 114
■ Mann 293
Manning 11 1
Marton Inhabitants 227
Mawbey, Bart 297
Middlesex Inhabitants
[Bridges].. 215
[Pleading] 239
[Staying
Judgment] 295
Mile End Inhabitants. . . . 297
Mitchell 186, n.
Morton Inhabitants 94
Moseley, Bart 114
Nele 221
Netherthong Inhabitants 77
- Newington Inhabitants . . 114
New Windsor Inhabitants
302
Nicholson 198.218
Northamptonshire Inha-
bitants 196.203.273
North Ritling Justices .... 151
Norwich Inhabitants 232. 237.
292
Nottiniihamshire Inha-
bitants 204.239
Old Malton 91.216
— Oxforilshire Inhabitants
[Bridge] 202. 206
[Evidence] 279
[Staying Judgment] 296
— Pappinean 235
— Pembrokeshire Justices ... 67,
Index of' Cases.
xxxui
Page
Rex V. Penderryn Inhabitants, 88, n. 228
— Pennegoes and Ilachyn-
lleth Inhabitants 187
Pettiward 142, n.
Cambridge,
Pilling Inhabitants 265
— > Ragley Parish 91, n. 296
Randall 222, n. 297, n,
Rawlins 221
Rawlinson 147, n.
Reynell 293
Richards 115
Russell 47
St. Alban's Justices 187
St. Andrew, Holborn, 78. 232
St. Benedict Inhabitants 12. 86.
269
St. George, Hanover Sq.
Inhabitants 77
St, Giles,
Inhabitants . .
St. John, Margate, In-
habitants 90
St. Pancras Inhabitants 84. 226
[Evidence] 270
Salop Inhabitants 201
Sarnion 48
Severn and Wye Railway
Company 58
— Sheffield 76
— Shelderton Inhabitants . . 226
— Sheppard 65
— Shoreditch Inhabitants . . 264
— Silverton Parish 295, 294
— Skinner 81. 275
— Smith [market not a nui-
sance] 49
[Length and breadth
of way] 225
[Evidence] 276
— Somersetshire Justices . , 64
150. 188
Inhabitants 204
— Southampton Inhabitants, 296
Spiller 229. 236. 238
— Springall 223
— StaiFordshirc Justices .... 63
Staughton 229
— Stead 53
— Steyning Inhabitants. . 87. 297
Stoughton 234
— Stratford-upon-Avon
[Corporation] 238
[Evidence] . . 280
— Stroud Inhabitants 299
Page
Rex V. Suffolk Justices 65, n.
Surrey Justices G5, n.
• • Surrey Inhabitants
[Enlarging Bridge] 201
[Repairing Bridge] 205
[Pleading] 2f59
[Evidence] 279
Taunton, St. Mary, In-
habitants 90, 9 1
Terrel 232. 272
Thompson 221
Tippett 69
• Townsend 69
Townshend and another 93
Uj)per Papworth Inha-
bitants 95
Walbourne 297
Wandsworth Inhabitants
[Witnesses] .... 265
[New Trial] 293. 295
Waterer 297, n.
Warde and Lyme 235
• Warwick, Mayor and Bur-
gesses 227
West Riding Justices
[Continuance of Nuisances] 53
[Notice of Appeal] 64
[Appeal under Inclosure Act] 68
[Surveyors' Accounts]. . 186, n.
West Riding Inhabitants, 78. 80
[Bridges] 201,202
[Bridges — Pleading] 238
[Bridges — Evidence] 278
Weston-under-Penyard
Inhabitants 86
Wheaton Aston 233
[Evidence] 264
White and Ward 235
Williamson 91
Wiltshire Justices 89, n.
Wing 187
Winnfield 88, n.
Winter 230
Worcestershire Justices 62. 63
Yarenton Inhabitants 92
Yarton Inhabitants 80
Rich v. Barker 205
Rider v. Smith 240, 241, n. 252
Ridge V. Garlick 1 60, n.
Roberts v. Karr. . . . 12. 17. 20. 296, n,
— V. Morgan 256
V. Read 1 95
Robinson v. Pocock 52
Rouse v. Bardin 250
c
Index of Cases.
Page
Rugby Charity, Trustees of, v.
jilerry weather 3. 10
Ruishbrook and Pusanies' case . . 261
Russell V. Men of Devon 214
St. John V. Moody 241
Salisbury v. Rhodes 5
Sampson v. Appleyard 296
Saunders v. Mose 34
Sands, Lord, v. Pinder .... 259. 295
Scales V. Pickering 1, n.
Selman v. Courtney 3, 249
• [Evidence] .. 281
Senhouse v. Christian 34. 36
Shastaw Borough case 201
Simpson v. Scales 70
Skinner v. Lord Bellamont .... 284
Slowman v. West 244
Smith v. Shepherd 181
Stafford, Marquis of, v. Coyney 14. 33
Stanley v. Fielden 98
Staple v. Heydon 21
Steel v. Prickett 5
Stephens v. Hayns 182, n.
Stevens v. Duffty 173, n.
V. Whistler 5, 226
Stone v. Wakeman. . 15. 54. 242. 247
Stoneham's Inhabitants case .... 91
Stott V. Stott 253, 254. 285
Stratford Bridge case 202
Sutcliffe V. Greenwood . . 9. 221. 250
Sutton V. Clarke 83. 189
Swinglehurst v. Altham 301
T.
Taylor v. Nicholls 299. 301
V. Whitehead 50, 51
Thompson v. Miles 248. 290
Thornton v. Williamson 300
Thrower's case 52
Toliayle's case 234
Tomlin v. Fuller 35. 58
Towbcy v. White 134. 192
Trickey v. Yeandall 260
Tripp V. Frank 217
'JVotnian v. Holder 300
Trotter v. 1 larris 240. 283
I'ruman v. Walgliain 181
TrcwhilL v. Deprec 280
V.
Page
Vennor, Exparte 82
Vernon v. Prior 24
Villet V. Parkhurst 58
U.
Underwood v. Sanders 255
W.
Wadley v. Bayliss 287
Waite V. Smith 119
Walker and Measure 226
W^ard V. Bird 194
Warner v. Green 245
Warren v. St. Hill 241
Waterhouse v. Keen 172. 192
Watson V. Sparks 281
Webb V. Batchelour 113
Webster v. Bach 54
Welch V. Nash 64
Weshbourn and Mordant's case,
43, n.
Whalley v. Tompson 71, 75
Wheeler v. Cooper io5
White v 16
• V. Reeves 67. 262
SVhitehead, exparte Add. 304
Whitmore v. Wilks Add. 304
Williams v. Sangar 170. 172
Winford v. Wollaston 241
Wood v. Veal 13
Woodyer v. Hadden 11
Worcestershire v. Town of
Evesholm 201
Wright V. Rattray 243. 286
Y.
Year Books —
Edw. in. 6. 2.'} 2. 7
10. 28 199.204
20. 18 14
21. 2 70.73,74
44. 31 204
45. 8 57. 244. 248
50. 11 5Q
Asbisarum Liber —
4. pi. 3 57
20. pi. 18 14.57.244
Index of Cases.
XXXV
Assisarum Liber — •
21. pi.
1,
Page
57. 70. 74
180
22, pi. .58
' — pi. 93 5
27. pi. 8 238
— pi. 44 [21] 80
34. pi. 13 56
43. pi, 37 78,206
Hen. IV. 2. 11 49.56
36 16
5 70.73
26 57
83..56. 214, 247.256
Hen. VI. 3. 31 70
7. 3 73
11. 22 16, 17
19. 29 57, n.
22. 14 217
27. 8 7
28. 9 256-
30. 7 248
7.
11.
11.
Hen. VI.
Edw. IV.
33. 26
Hen. VII.
39.
2,
5.
8.
10.
18.
5.
5.
6..
9 ..
2 ..
9..
7 ..
Page
57. 241, n.
.34.241.255
5.48
53
5.7
S3
8 14,15
5 229
7 1 5, 1 6
10 181
8. 5 .. 5. 38 n. 82.203
11. 25 70, n.
Hen.VIII. 14. 31 53
27. 27 53,54
Yevance v. Holcomb 57
Young V. 24. 51
Zangers v. Whiskard 24
A TREATISE,
ETC.
CHAPTER I.
Of the several kinds of Ways, and of the Ownership of the
Soil, Trees, c^-c. therein.
Ways have been commonly divided into tliree classes, but a late Division of
decision will warrant us in calling them fourfold (a). 1. Foot- Ways,
ways*. 2. Footways and Horseways. 3. Foot, Horse, and
Carriage Ways, &c. 4. Drift Ways (h). Lord Coke says, ,
that the second class is also called a packe and prime way, be-
cause it is both a footway, which was the first or prime way, and
a packe or drift way also (c) ; but Ave shall see presently that a
right of horse way does not necessarily include a way for driving
loose cattle. The third division is said to include the other two (f/),
and although this may generally be the case, and is, indeed,
prima facie evidence that it is so, it has been held, that a right
of way for carriages does not necessarily establish a claim for a
drift way. The plaintiflF pleaded, in bar to an avowry damage
feasant, that he had a right of way for his cattle from a public
street along a yard to certain premises in his occupation which
he made use of as a slaughter-hotise. The preceding occupier
had been accustomed to drive fat hogs along the way, and the
plaintiff had been lately in the habit of driving fat oxen there
for the purpose of killing them. It was admitted by the de-
(a) 1 Taunt. 279. Selw. N. P. 1339.
* Where a private Act of Parliament empowered a water company to " break
up the soil and pavement of roads, highways, /bo/Ki(«/4-," &c., " and public places;"
it was holden that the word " footway " as there used, meant those footways in
large towns which are too narrow to admit of carriages and horses, and not a
path over a private ground. 4 Bing. 448. Scales v. Pickering.
(b) Co. Litt. 5G a. ,
(<•) Ibid.
{il) Ibid.
B
2 Several kinds of Ways. [[chap. r.
fendantj that all manner of carriages might pass and repass, but
no other user for cattle than that mentioned above was proved.
After a verdict against the enlarged right sought by the plaintiff,
the Court, upon a motion for a new trial, refused to disturb the
decision of the jury. They thought there might often be good
reasons why a man should grant a right of carriage-way, and yet
no way for cattle ; that it might be dangerous to allow such an
user in a closely inhabited neighbourhood, and that a public
notice, however necessary in a public, Avas not necessary in a
private way*. They also considered it a question for the jury
to find, whether a right of way for cattle should be presumed
from evidence of a cart-way (a).
Ways three- Ways may also be considered as threefold under the description
fold. of: 1. The king's highway. 2. A common way, such as leads from
a village into fields, &c. (6) 3. Private ways. Private ways are
distinguishable from common ways, inasmuch as the soil of the
former is generally in the owner of the adjacent land ; whereas the
soil of the common way is either in the lord of the manor, or belongs
to the respective proprietors of land on each side of the road.
And when we speak of a i-ight of way ; strictly taken, it means
a private way, that is, the privilege which an individual, or a
particular description of persons, such as the inhabitants of the
village of ^4., or the owners or occupiers of the village of B., may
hare of going over another person's grounds (c). It is an in-
corporeal hereditament, in which a particular man has an interest
and a right, though another be the owner of the land where it is
claimed (rf).
It may be further observed that these two general divisions
of ways are not by any means incompatible with each other.
For a foot, a horse, or a cart Avay, may be used as the king's
highway, as a common, or as a private way, according to the
right in each particular case ; although it was contended, on one
occasioii, that the existence of a highway was not proved by evi-
dence of a common footway only. The pleadings in case had
described the terminus ad (piem as a public king's highway, but,
at the trial, proof of a footway and bridleway being given, with-
out more, it was urged that a pu])lic highway was nonien geiiera-
lisshumn, and must be taken to be such for all purposes. The
objection being overruled, application was made for a new trial ;
but the Court held the proof sufficient, for here was a public
highway for foot passengers (e). And Lord Ellenborough ex-
♦ As to the notice, liy M.insfitld, Chief Justice, against Cliamhre, J.
(n) 1 Tiiuiit. 279. IJallanl v. Dvson.
\h) (i E. 3. 23.
(r) '.i Cm. Difr. 109.
(r/) 2 IJl. Com. 3.').
((■) 8 East, 4. Allen v. Ornioml. The court said, however, that such a
CHAP. 1.3
Several Hnds of Ways.
pressed the same opinion some years afterwards, saying ; " There
is no donbt that a public footway or bridleway is a liigliway : it
is a highway for foot passengers, or for horse passengers/' &c. («)
But it has not been expressly decided, whether every high-
way must necessarily be a thoroughfare. In the case, indeed,
of the trustees of the Rugby Chanty against IMcrry weatlier (/>),
there was evidence of user of a common street, though it was Tliorough-
said to be no thorouglifare ; and Lord Kenyon seemed to admit '^•'c.
the distinction. But the authority of that case has been ques-
tioned generally, although the decision did not take place on the
})oint of thorouglifare. And on a subsequent occasion Lord Chief
Justice Abbott said, " I have great difficulty in conceiving that
there can be a public highway which is not a thoroughfare, be-
cause the public at large cannot well be in the use of it." (c) The
learned lord, however, added, that he had told the jury at ni.si prins,
that such a highway might exist (d). Lord Ellenborough had
instanced Queen Square as a highway in a former case, and " yet ",
said the learned chief justice, " there is no thoroughfare."*
If there be a distinction in law between a highway and a
thoroughfare, the term " king's highway " will be capable of two
divisions, and there would then be live, instead of four, kinds
of ways.
Private ways may also be said to be appendant, or in gross ; Ways ap-
but the consideration of them in this sense rather belongs to the pendant or
mode of claiming them, which will be the subject of the ensuing ^" gross.
Chapter.
The king's highway is a public passage for the king and his What is the
subjects, and thence the name is derived. Whether the high- king's high-
way lead directly to a market town, or only from town to town, way.
being a thoroughfare to other towns, it is still a king's highway,
if it be common to all the people (e). So, again, if a way lead
description might be bad on special demurrer, as not pointing out, with sufficient
certaint}', what sort of highway was meant. See Ca. Temp. Hardw, 315. Hex
V. Hatfield Inhabitants. Lord Cliief Justice Holt, speaking of a footway, horse
and prime way, common to all the queen's subjects, expressed himself in terms
which can hardly be reconciled with this decision. " These are not altae regiae
vise, for tliat is the great highway, common to cart, horse, and foot, that please to
use it." 6 Mod. 2o5.
(a) 13 East, 97. So Holroyd, J. 2 B. & A. 648. The same of a towing
path. lb. By Bayley, J.
(b) 1 1 East, 375, note.
(c) 5 B. and A. 450.
(d) Ibid. A highway is infinite ; it has no terminus a quo, nor terminus ad
quern. 10 Mod. 383, by Parker, C. J.
* There is a thoroughfare for foot passengers at one part of Queen Square,
(f) 1 Hawk. c. %. sect. I.
4 Several kinds of Ways. [chap. i.
to a market, and be a way for all travellers, and communicate
with a great road, &c. it is a highway («). But it is not essen-
tial that a highway should lead to a market town, for then the
lord of a market might extinguish a highway by forfeiting or
surrendering his charter, or the king, by granting a market,
might change a private into a public way (Ji). It follows from
hence that a road, which is for the benefit of some particular
persons only, cannot be called a highway.
Again, if a vill be erected, and a way laid out to it, if there
be no other way but that to the vill, it shall be deemed a public
way (c), though not a king's highway, unless common to all per-
sons.
Outlets, if used time out of mind, (when the road, for ex-
ample, is overflowed,) form part of the highway, so that the
king's subjects may go upon corn sown on such outlets if the track
be foundrous, or out of repair (rf).
Turnpike Turnpike roads are highways ; but it does not necessarily
roads. follow, that every road is a highway where toll is taken, since
there may be toll-traverse for passing over a manor, &c., as we
shall see in a future page (e).
Water. A navigable river is also esteemed to be a highway {f). And if
a water, which is a highway, change its course, and flow upon
the land of another, the highway extends over the place where
the water newly runs, in like manner as it existed over the
(«) 1 Ventr. 189. per Hale, C. J.
(6) Burn's Justice, 23cl edition, vol. 2, p. G67.
(c) 10 Mod. 130, per Parker, C.J.
(f/) 1 Ro. Ab. 390. Sir Edward Duncombe's case. Formerlj', if the track
were foundrous, and one assigned a way out of his own ground, it did not
become the king's liighway, without a writ of ad quod damnum and inquisi-
tion tliereon. Cro. Car. 266.
By 8 and 9. W. 3. c. 16, upon the enclosure of a common highway after an
ad quod damnum and inquisition thereon, any person ma}^ complain by appeal
to tlie sessions next after the inquisition. The determination of tlie sessions to be
final ; and if no appeal be made, the inquisition and return, entered and recorded
by the clerk of the peace, shall be for ever binding.
This writ of ad cpiod damnum is an original writ, issuing out of and returnable
into Chancery, and directed to the sheritl'to inquire of the damage likely to arise,
and the inquisition, being a j)roceeding ex parte, is in its return traversable. Burn's
* Justice, ed. 23, vol. ii. p. 699. The public could not justify going over a new way,
as a amivum luj^liwai/, williout this writ, but were obliged to shew their excuse
specially. The inhabitants were not bound to keep watch in such new way, nor
repair it, nor make amends for a robbery committed on it. Cro. Car. 267. 1
Burr. 4'G3. See Vaugh. 341. It was (and in such cases still is) necessary,
that the new way should be as bencKcial as tiie old one. Anibl. 295, Armitage,
ex parte. It was made a question, in the case just cited, whether this writ would
lie to change tlie condition of a way. — Ibid.
(c) Co. vir.
(/) 10 Mod. .S82, per Parker, C. J.
CHAP. 1.3 Several kinds of' Ways. ' 5
ancient course, so that the lord of the soil may not disturb
it («).
Further, a public bridge is comprehended under the title of Bridges.
a king's highway (6).
It is laid down in the old boohs, that in a highway the To whom
king has nothing except the passage for himself and his people, '^'^ f'' an^l
but that the freehold, and all the profits, as trees, &c. appertain F"''^'' ^
to the lord of the soil (c). And, it is further mentioned, that belonif '^ ^
the lord of the soil in this case is the owner of the adjoining
land (rf). For it is presumed by the law, that the proprietor of
such land adjoining gave up to the public for passage at some
former period all the land between his inclosure and the middle
of the road (c). Hence it is, that trespass may be maintained by
such a proprietor for digging the ground of the highway {f), and
he may, moreover, maintain ejectment, for the sheriff may give
possession of the way, subject, nevertheless, to the easement {g).
Trespass was brought by the plaintiff, who had built a street upon
his property, and permitted it to be used as a highway. It was
objected, that tlie plaintiff had dedicated the place to the public,
and was incompetent to sue as for a trespass on his private
property. But the court said, that although there had been a
dedication to the public, as far as regarded a right of passage, a
transfer of the absolute property in the soil had never taken
place ; and the plaintiff had judgement (Ji).
Prima facie, therefore, the presumption is, that a strip of land,
lying between a highway and the adjoining close belongs to the
owner of the close, as is the presumption also, that the highway
itself, ad medium Jllum via;, does (?'), although acts of ownersliip
exercised by the lord may be adduced to repel it (/i). And
where that strip of land communicated with open commons, the
presumption failed, for the evidence of ownersliip Avhich applied
to the larger portions of land, applied to the narrow strip also to
which they were contiguous (/). So, where the land next to the
road was a slip of green sward, which had been generally treated
(a) 22 Ass., pi. 93,
lb) See post. Ch. VIII. on Bridges.
(c) 2 E. 4. 9. 8 E. 4. 9. 8 H. 7. 5. 2 Inst. 705.
(rZ) 8 H. 7. 5.
(e) 7 B. & C. 306, per Bayley, J.
(/) 8 E. 4. 9. 1 Burr. 143, by Lord Mansfield.
(g) I Burr. 133, Goodtitle, dem. Chester, v. Alker. Id. 143, Selman v.
Courtney, cited there.
(/i) 2 Str. 1 004, Lade v. Shepherd.
(0 7 Taunt. 41, by Gibbs, C. J. 2 Stark. 468, by Abbott, C. J. 7 B. & C.
306, by Bayley, J. 2 Stark. 463, Steel v. Prickett. 11 East, 51, Stevens
V. Whistler. And see 3 B. & P. 413, Doe d. Jackson v. Wilkinson.
{k) Lofft. 358. Anon. As to taking gravel, &c. see Serjeant Hill's MSS.
vol. 10, pp. 351. 442, Sir Thos. Salisbury v. Rliodes.
(0 7 Taunt. 39, Grose v. West.
Profita of Ways, to whom Ihey belong. [^chap. i.
as waste land, and as a common for cattle, being considered as a
portion of a neighbouring common, to which on one extremity it
adjoined ; in this case, in the absence of any evidence that the
owner of the soil next the road had exercised any right over it, the
judge directed the jury to presume the locus in quo to be common
land, for the prima facie presumption failed by reason of the re-
putation of waste («). But where a cottage had been built on
a slip of waste land by the side of a turnpike road adjoining to
inclosed land, which was copyhold, and ejectment was brought by
the owner of the inclosure to recover this cottage ; it was
objected, that however true it might be, that tlie presumption
of ownership in the proprietor of adjacent land took effect where
that proprietor was a freeholder, it could not avail on the pre-
sent occasion, as the adjoining premises were copyhold ; and it
was contended, that this cottage belonged to the lord of the
manor. But the court gave their judgement for the plaintiff ; had
the road existed, indeed, from time inunemorial, the property in
the read and waste adjoining might have behmged to the lord ; but
here the probability ^vas, that the road had beeii made long since.
It was added, that the prima facie presumption ought to be con-
stant and uniform, and that it should extend to cases where the
owner is a leaseholder or copyholder, as well as a freeholder (6).
In a case recently quoted (c). Lord iNIansfield, after observing
that the freehold of the way, and all the profits belong to the
■owner of the soil, went on thus : " So do all the trees upon it,
and mines under it (which may be extremely valuable). The
OAvner may carry water, in pipes, under it." (rf) With respect
to trees, there seems, at first sight, to be some difficulty, owing to
an apparent contrariety of opinions in our books. On the one
hand, it would appear from the authorities, that trees growing in
(«) Holt 463, Headlam v. Hedley.
(6) 7 B. & C. 30'1-, Doe, deni. Pring and another, v. Pearsey. " In remote
and ancient times, when roads were fVcquently made through uninclosed
lands, and when the same labour and expeuce was not employed upon roads,
and they were not formed with that exactness which the exigencies of society
now require, it was part of the law, that the public, when the road was out
of repair, might pass along the land by the side of the roml. This right on
the part of the public was attended with this consequence, that, although the
pfirishioners were bound to the repair of the road, yet, if an owner excluded
tiie ])ublic from using the adjoining land, he cast upon himself the onns of
repairing the road. If the same jjcrson was the owner of the land on both sides,
and inclosed botii sides, he was bound to repair the wliole of the road; if he
inclosed on one side onl)', the other being left open, he was bound to repair to
the middle of the road ; and wl)ere there was an ancient inclosure on one side,
and the owner of the lands inclosed on the other, he was boujid to repair the
whole. Hence it followed, as a natural consequence, tiiatwlien a person inclosed
his land iVom the road, lie did not make liis fiiue close to the road, but left an
open space at the side of the road to be used by the public wlien occasion required.
This appears to be the most natural and satisfactory mode of explaining tiie fre-
quency of wast<;s left at the sides of roads." 2 Stark. 4G9, by Abbott, C. J.
(r) Goodtitlc V. Alker.
{d) 1 13urr. U3.
CHAP. 1.3 Profits of Ways, to whom they belong.
the highway, or on one side of it, are the property of the lord of
the manor ; on the other hand, that they beh»n<>; to the owner of
the adjacent hind, Avhetlier he be h)rd or freehokler. Tluis it is
said, that if trees be growing in the king's highway, lie to Avhom
the seignory of tlie leet of the same place belongs, shall have the
trees (o). Brooke, however, says, that the word " leet" here must
mean the fee, or the soil, for that leet is not seignory ; that, if not
so taken, the case cannot be law ; but he adds, that leet is in
some countries taken for the soil (6). So again, it is said, that
all the profits of the highway, as trees, ike, belong to the lord of
the soil (c). The comment of Kitchin, in his Courts Leet, upon
these passages, is as folloA\'s : " Where a lord of a manor hath
land upon both parts of a liighuay, he sliall have the trees growing
in the highway ; and, also, -where a way is over a waste of the
lord's ; but, Avhere a freeholder hath land of each part of the high-
way, he shall have no trees growing in the highway ; and where
he hath land joyning but upon one part of the way, he shall have
no trees growing upon that half of the way. But Britton saith,
that a freeholder shall have trees, if it be not in the common
highway." ((/)
This observation of Britton is an authority against the right
of the lord to take the trees, unless they actually be in the high-
way. It is, moreover, laid down in Rolle (e), that the owner of
the soil of both sides the way shall generally have tlie trees grow-
ing upon the way. And further, it is noted in Brownlow, that
to the owner of the soil on both sides of the way, of common
right belong the trees that grow in the lane, whether he be lord
or freeholder (./). These remarkable words are added : — The
best badge of Irulh, is the usage of taking the profit of the trees {g).
So that it would appear from thence, that the question Avould
rather be decided by the custom of each particular manor. And,
in conformity with this rule, it has been held, that the lord of
a rape, within which were ten hundreds, might prescribe to have
all the trees growing in any highway within the rape, although
the manor or soil should belong to another, and usage to take the
trees was said to be a good badge of ownership (A).
It is observable, that the authorities, upon which Kitchin
founds his opinion, speak of the lord of the soil. But it by no
means follows^ that the lord of the soil is the lord of the manor,
(a) 27 H. 6. 8.
(6) Bro. Ab. Leete. pi. 3.
(c) 8 E. 4. 9. and see 6 E. 3, 2B.
(d) Kitchin, p. 68.
(e) 1 Ro. Ab. 392.
(/) 1 Brownl. 42.
(g) Ibid,
{h) IRo.Ab. 392. Pelham V. Wiatt.
Profits of Ways, to whom they belong. [cnkp. i.
for the presumption being, that the highway, iisq^ic ad medium
Jilum vice, belongs to the owner or owners of the adjacent land re-
spectively, the lord of the soil might there mean the freeholder,
whose land lay contiguous.
It would be desirable to reconcile the expressions above quoted,
which are thus apparently at variance with each other. First, it is
clear, according to the very late case in Barnewall and Cresswell,
that the highway, ad medium Jilum, h prima facie the property of
the adjoining land proprietors, whether copyholders, leaseholders,
or freeholders. And the reason given is, that the proprietor gives
up all the land between his inclosure and the middle of the road
to the public for passage. Trees, therefore, growing upon the
way, could not be the property of the lord of the manor under
these circumstances, at least so far as relates to the first presump-
tion entertained upon the subject. And as the court declared,
in the above case, that they would not presume a road to have
been made before the time of legal memory, it would be con-
sidered, that a road had been made within such time, and con-
sequently that the lord had not originally reserved either the
soil or the profits, including the trees. The original presump-
tion, consequently, stands unimpeached, liable to be answered,
nevertheless, by evidence of a contrary description. So that,
where it appears, that the lord of the manor has always exercised
the right of taking the profits of the trees, or, possibly, the tim-
ber itself, this may be a sufiicient answer to the presumption,
and a fair ground for concluding, that the trees were excepted out
of the original grant. Thus it is, that the taking of the profits is
said to be the best badge of ownership. So that it seems the
cases may be well reconciled, by setting up the presumption of
ownership in the adjoining proprietors in the first instance, sub-
ject to be defeated by a prescription^ or well-founded custom, on
the part of the lord of the manor.
Ways hovf
claimed.
CHAPTER II.
Ho7v Ways may he claimed.
With respect to a highway, in the words of Hale, C. J., "much
depends upon common reputation." (a) And if the owner of
land permit the public to pass and repass over his soil without
molestation, or any assertion of his rights, for some time, the law
will presume a dedication of the way to general use. JMuch
discussion has arisen as to the period which must elapse before
such a dedication will be presumed ; and the attention of tlie
reader will be presently directed to it. It seems, therefore, that
a highway may be claimed, first, from time immemorial, and
next, by reason of such a sufferance of public user within time of
memory, as will lead to the conclusion, that the original proprietor
had designed a common benefit for all the king's subjects. It
may also be enjoyed imder an express grant. The same princi-
ple appears to be applicable to common ways.
There are five modes of establishing a title to private ways :
1. By prescription. 2. By grant. 3. For necessity*. 4. By
custom. And lastly, M'ays, whether public or private, may be
claimed by virtue of acts of parliament, as inclosure acts, &c. (b)
We will first consider the claim to the highway.
If evidence be adduced to show, that a particular road has Highway
always been used as a public way, and always considered as such, how elaimed.
it seems, that a claim of highway will be made out. And ways
are now so well defined, from town to town, and village to vil-
lage, and so well established by reputation, that a complaint of
the want of thoroughfare is not likely to arise at the present day.
Whence it is, that the writ, ad quod damnum, which might for-
merly have been resorted to for the purpose of ascertaining whe-
ther any injury would be likely to arise from the grant of a free
passage for the king and his people, is, for the most part, fallen
into disuse in this respect {c).
(«) 1 Venlr. 189.
* This right is said to arise from a grant by the owner of the soil, or from a
prescription which supposes a grant, or from the operation of law. 6 IVIod. 3.
See Finch's Law, p. 63.
(6) 8 Price, 535, Sutcliffe v. Greenwood. Justices at sessions may also
make alterations in the line of roads. And the power of reserving tmggon u). This case, however, has been very much
questioned ; and Lord Chief Justice Mansfield, in a subsequent
case, observed upon the length of time, as mentioned bv Lord
Kenyon, very strongly. He said, he never could discover in the
Foundling Hospital case wlien the dedication began : — if six years
Avould be sufficient, "why not one.'' why not half a year ? It
would then become necessary for every reversioner, coming into
possession of his estate, after a lease, instantly to put up fences
(a) 2 Str. B. & A. 237, l>v Holrovd J.
CHAP. li.J IVays, how claimed : by grant. 19
A user for twenty years exercised adversely, and without any
thing to qualify it, will afford sufficient grounds for the jury to pre-
sume a grant. Thus, where an occupation way over the locus hi quo
had been assigned under the award of commissioners of enclosure,
to one Joseph W. by viistakc for Johri W. ; hut it appeared on
the trial, that the occupiers of Joseph's close had used this way
uninterruptedly for more than twenty years, and, indeed, had
done so before the award ; the learned judge who presided, left it
to the jury to say, whether there had not been an adverse pos-
session, although the enjoyment of the way might, in fact, have
originated in mistake. He told the jury, moreover, that, if they
thought the defendant's (Joseph's) enjoyment had been only by
leave, o?- favor, or otherwise than as under a claim or assertion
of right, it would repel the prcsumptio7i of' a grant, or, if they
thought the Avay had not been enjoyed adversely for twenty years,
they must find for the plaintiff. The jury gave their verdict for
the defendant, and the court were urged to set aside the verdict
on the ground of a misdirection by the judge, in t vying, that a
grant of the way might be presumed from adverse user, although
originating in mistake. But the application was unsuccessful,
for nothing appeared in the evidence to show, that the parties
referred their acts to the award ; and then it came to the common
case of adverse enjoyment for twenty years, which was distinctly
proved for the defendant («). Had any facts appeared sufficient
to warrant the objection, it is probable that the direction of the
learned judge might have been more seriously canvassed. " For if,
exercising the right of M'ay from time to time, it had appeared,
that the party had asserted his right to be grounded on the
award, though it were exercised ever so adversely, I do not know
how the jury would be warranted in referring it to any other
ground than that the party himself insisted on at the time." (Jb)
In a subsequent case, where an alleged right of way had been
pretty constantly contested, but the defendant had pleaded that
his deed of grant had been lost, the learned judge directed the
jury, that if they thought the defendant had exercised the right
of way uninterruptedly for more than twenty years, by virtue of a
deed, and that that deed had been lost, they should find for the de-
fendant ; but that, if they thought there had been no way granted
by deed, they should find for the plaintiff. The jury said, they
could not find any deed, and found for the plaintiff. This ruling
of the learned judge was held to be perfectly correct (c).
It is a principle of law, that the grant of a thing shall carry Private ways
claimed. 3.
, , „ „ „, From neces-
(a) 3 East, 294, Campbell v. Wilson. 5Jty^
(6) 3 East, 302, by Lawrence, J.
(c) 3 Bing. 115, Livett v. Wilson. See Bull. N. P. 75, Kejiner v. Summers,
where Yates, J., held, that 30 years' user of a way would afford a presumption of
a grant or licence.
c2
20 Ways, how claimed : from necessity. [^chap. ii.
all things included, vvithout which, the thing granted cannot be
had («). Therefore, if A. have an acre of ground in the middle,
and surrounded by other of his lands, and enfeoff B. of that
acre, here, of necessity, a convenient Avay arises on Z?.'s behalf to
go over A.'^ ground as a necessary incident (6). Suppose a man
to have four closes lying together, and he sell three of them, re-
serving the middle close, but not mentioning expressly the re-
servation of any way for himself, and that he have no way to the
middle close, except through one of the closes sold ; here the law
will reserve a wav for his benefit, and although he had both lands,
there would not be any extinguishment of the way (c). It is
the same, though the close aliened be not totally inclosed by the
grantor's land, but partly by the land of strangers, for the grantee
may not go over the strangers' land {d). A person, as a trustee,
conveyed land to another, to which there was no access except over
the ground of the trustee, and it was said, that the plaintiff (the
trustee) had joined in the grant to the defendant merely as a
trustee, and not in his own right, and therefore ought not to
be concluded by such an act to his own prejudice. On the other
side, the claim of a way of necessity was strongly urged as estab-
lished in Button v. Taylor (e) ; because, as it is there said, it is
for the public good that the land should not be unoccupied ; and
Lord Kenyon declared himself disposed, independently of any
other point, to accede to the authority of that case*. But he
said, that on the principle, that every deed must be taken most
strongly against the grantor, the case before the court was clearly
against the trustee who had brought the action, for it could not
be intended that he meant to make a void grant ; it must be sup-
posed, that some beneficial interest Avould be conferred, and then,
here arose a way of necessity, because a man had granted a close
surrounded by his own land {/)•
Lord Kenyon seemed to consider, that there was considerable
difficulty in the general question, that a Avay must of necessity
exist where the land of one man is surrounded by that of another.
And he is said to have expressed that opinion at Gloucester sum-
mer assizes in 17^7 (§■)• And J\Ir. Sergeant Williams denies
that general right, as if, to use his own words, " a self-created
(«) Hob. 234.
(6) Noy. 12.-}, Oldficld's case. Id. 14, by Williams, J.
(c) C)w. Rep. 122, Cid. .Tac. 170. Clark v. Cogge. 2 Lutwy. 1487, 9.
Duttoti V. Taylor. 2 Siderf. 89, Packer v. Welsted. Sec also 5 Taunt. 311,
Buckby V. Coles.
(rf) 2 llo. Ab. 60.
(c) 2 Lutwy. 1487. Supra.
* " Tiioiijili," added the learned lord, " I cannot say, that my reason has been
convinced by it." 8 T. 11. .")6.
(/") 8 Term. Rep. 50, Howton v. l-Vearson. Sec also J Taunt. 49.5, Roberts
V. Karr.
(jO In Large v. Pitt, 2 Wms. Sauiid. 32.'?, n, C.
CHAP. II.] Ways, how claimed : from nccessitij. 21
necessity could be, cither in law or reason, any justification
of a trespass committed on another's land." («) So Lord
Ellenborough : speaking of a bad plea, he says, " It seems to
suppose, that wherever a man has not anotlicr way, he has a
right to go over his neighbour's close. But that is not so." (b)
Unity of possession, observes the Sergeant, is the foundation of
the right ; and he puts the claim of the way of necessity upon
this principle, that a way to the close granted exists over the
grantor's land as incident to the grant, for without it no benefit
could be derived from the grant (c). And this is the principle
mentioned in Hobart, and which has been quoted in a former
page. Thus it is, that a rector may enter into a close to carry
away the tithes by the usual road, for the privilege is incident
to that right to the tithes which the law has given him [d). So,
if one have, eitlier by grant, or prescription, a right to wreck
thrown upon another's land, of necessary consequence he has a
right to a way over the same land to take it (e).
It is, therefore, agreed on all hands, and all the authorities
support the doctrine, that in the case of a grant of land without
a reservation of any way, a way of necessity will pass as incident
to it. And a way of necessity thus considered will be found to
be nothing else but a way by gratit (f).
But authority is not wanting to the effect, that, under any
circumstances, if one man's land be encompassed by another,
such a way exists. Thus, one reason for the judgment in But-
ton V. Taylor was, that the latid should not he unoccupied {g).
And again, if ^. have an acre of ground surrounded by ground of
B., A., for necessity, has a way over a convenient part of B.'a
ground to his own soil, as a necessary incident to his ground (//).
But this sbservation does not appear in the report of the same
case in Lord Raymond (?), and Holt, C. J., there said, that the
way of necessity should have been pleaded as passing by the de-
mise there stated, as appurtenant.
If there have never been an unity of possession, and the '^^ay
have been used immemorially, it may be claimed by prescrip-
tion (A). . "
(r() 1 Wms. Saund. 323, n. 6, in Pomfret v. Ricroft.
(6) 4 M. & S. 392.
(c) Ibid.
(d) See2 Lutw. 1314. 2 New. Rep. 466. 1 Wms, Saund. 323, a. n. 6.
(e) 6 Mod. \^Q, Anon.
(y ) 1 Wms. Saund. 323, n. 6, This law, as to the way of necessity, thus laid
down, by Mr. Sergeant Williams, is recognized with much approbation by Lord
Ellenborough. 4 JM. & S. 393.
{g) 2 Lutwy. 1189.
{h) 6 Mod. 3, Staple v. Heydon.
(i) 2 Ld. Raj-m. 922.
(k) 1 Wms. Saund. 323, n. 6. It is reasonable to conclude that this general
question is not very likely to be agitated. For if a way have been iramemorially
22 Ways, hoiv claimed : 7vhat ways. [[chap. ii.
What way to As a general principle^ the ancient way should be the subject
be claimed, gf ^^ claim. The defendants, one of whom was the owner of a
close within a close belonging to the plaintiff, had a prescriptive
right of way through the plaintiff's close to his own. The plain-
tiff stopped up the old way, and made a new one, which had been
used for upwards of twenty years, but he then thought fit to
stop up this way also. The defendants removed the obstruction,
and the plaintiff brought an action against them. It was very
strongly urged for the defendants, that they were necessarily
obliged to go this way to their close, there being no other passage
open. But the court gave judgement for the plaintiff. The new
way was only by sufferance, which might be determined at pleasure,
and the defendants ought to have had recourse to the prescrip-
tive right of way. And as to there being no other way open, t'jC
defendants, in order to have succeeded, ought to have been able
to say, that there was no other way, which they could not do (a).
However, where the defendant pleaded a right of way, from time
immemorial, and that the plaintiff, having stopped it up, had as-
signed a new one, and so justified the trespass, the plea Avas held
good, because here, the plaintiff had not stopped tip the new way
also, and, so, volenti nonjit injuria (6).
Where the owner of a close sowed it, and left a way over
another part of the close, in which, however, there existed an
ancient way, the court held, that the defendant might well justify
going along the ancient way, and that he was not bound to go in
the way which was unploughed (c).
It seems, however, that, if a man possessed of a close sur-
rounded by others, grant that close, the grantee is not bound to
use the same way that his feoffor has done, but shall have a
convenient way [d). And this, at first sight, militates against
the position just laid down, that tlie ancient way alone must be
adhered to. But here the old way is extinguished, and the new
arises out of the necessity of the tiling. And it should be a con-
venient road ; for where the feoffor has land on all sides, it will
be immediately perceived, that a road extremely convenient to
him, who is the owner of all tlie surrounding property, might be
most inconvenient to his grantee, whose homestead might possi-
bly be in a different direction ; and there may, consequently, be a
distinction in this respect between cases where the surrounding
land is the grantor's, and where it belongs to a stranger. And
used from the land of A. over that of 7?., it may be claimed by prescription ; and
if A. sell his land without mentioning the way, it will go over to the vendee by
virtue of the grant. It seems dilFicuIt to imagine how the question can arise at
this day.
(a) Willcs, 282, K(>ignolds v. Edwards.
(6) Yelv. I'll, Ilorne v. Widlake. 1 Brownl.212, S. C.
(r) Noy. 12H, Horn v. Taylor.
(rf) Noy, 123, Oldficia's case.
CHAP. II.] Ways, how claimed: by custom. 23
in this sense we should probably understand tlu; words of Lord
Chief Justice INIansfield, in a case where the defendant was charged
with obstructing the lessee's right of way : " I say nothing of wliat
is a way of necessity ; I know not how it lias been expounded :
but it would not be a great strctcli to call that a necessary way,
without which the most convenient and reasonable mode of enjoy-
ing the premises could not be had." («) And so in another case,
it is said, that the way should be over a coin^enicnt part of the
grantor's land, as a necessary incident (6). Subject to this rule,
the grantor may probably be justified in assigning such a Avay as
he can best spare (c).
It has been held, that this way of necessity is only coeval with
the necessity which creates it. A man was possessed of four
closes, and was accustomed to pass from the first through the
second and third into the fourth, there being no other wav. Sub-
sequently he purchased another close, and he then parted with
the two closes in the middle of the first four, and still contended,
that he had a right of road from the first to the fourth through
these two as a way of necessity. An action was brought against
him, and it Avas denied that he had this right, for it was said,
that he might pass from the fourth to the first close by Avay of
the new close which he had purchased, and that, at all events,
he could reach his own land by merely skirting the third road,
and so entirely avoid the second. And the court, therefore, gave
judgement against him : for " this inconvenience," said Lord Chief
Justice Best, " might follow, that a jitirty might retain a way
over 1000 yards of another's land, when by a subsequent pur-
chase he might reach his destination by passing over 100 yards of
his own." With respect to any way by prescription, that must
have been extinguished by the prior unity of possession {d). It
appears from the last case, that if the grantor sell his close, hav-
ing a way over it, and have then no other way, the way will be
deemed to have been reserved out of the feoffment. And so it
is, when a man having a close surrounded by other land of his
own, sells the otlier land, and reserves the close to himself, here
the way survives by necessary implication (e).
More will be said on the v, ay of Necessity in the chapters upon
User, Interruption, and Extinguishment of Ways.
Ways may also be claimed by custom. As where naviga- By custom,
tors have a right of this nature to tow along the banks of
navigable rivers with horses ; in this case, their privilege of
(a) 3 Taunt. 31.
(6) « Mod, 3.
(c) 2 Ro. Ab. 60.
(rf) 2 Bing. 76, Holmes v. Goring, 9 Moore, 166, S. C. Sue Ch. V.
(c) 1 Wnis. Saund. 322, (b) n. 6.
24 Wat/ s, ho?v claimed : by cuilom. [^chap. ii.
way is founded upon tlie quantum of usage. It was once
said by Holt, C. J., that " if one have land adjoining on a
navigable river, every one that uses that river has, if occa-
sion be, a right to a way by the brink of the water over that
land, or further in if necessary." («) And the same learned
judge held at Nisi Prius, that the public should have towing
paths on the banks of navigable rivers by virtue of the common
law (b). But there is an authority to the contrary of this posi-
tion, in which Lord Kenyon, observing upon the note in Lord
Raymond, says, that, at most, it was only an opinion delivered
at Nisi Prius, and that the authority of Lord Chief Justice
Willes was at variance with it (c). He went on to say, that the
right to tow in this manner must be ascertained by the usage ;
that such a custom certainly did exist on most of the navigable
rivers ; but still, that the right was founded solely on the custom.
The right of the public, therefore, generally, without any cus-
tom, was denied (d). It was also said, that the opinion of Lord
Hardwicke by no means favoured the general right (e), since he
directed a second new trial on the question, whether there were
a right to a track-path on each side of the river Tees for towing,
and which issue had been found (contrary to the Chancellor's
impression) in the affirmative {f)-
Independently too of usage in the particular place, the public
have no right to cross the sea-shore for the purpose of bathing.
The defendant pleaded to an action of trespass, that all the
liege subjects of our lord the king had been used and ac-
customed, and had a right to bathe in the sea from time to
time over any part of the said close, in which, &c., and, for
that purpose of going and returning, &c. on foot, and with
their servants, and with carriages and bf-thing machines drawn
by horses to the sea and back again, &c. A verdict having
been found for the plaintiff on the issue joined upon this
plea, a special case was made for the opinion of the Court.
And it was holden by three judges against one {g), that no com-
mon law right of bathing, which the defendant claimed, existed:
that public convenience was to be viewed with a due regard to
private property ; and tliat no practice was brought before the
attention of the Court sutHciently extensive or uniform to be the
foundation of a judicial decision (/<). The words of Abbott, C J.,
(«) Mod. 103.
{l>) 1 \a\. Ravm, 725, Young v. . Seu also, Zangcrs v, Wliiskard,
cited in 3 T. K. 259.
(c) Vurnon v. Prior, cited 3 T. R. 254.
\aggo7is. — Turnpike act, 4 G. 4. c. 95. s. 15. For
the better discovery of offenders, the owner or owners of every waggon, wain, or
cart, or other such carriage, shall from and after the first day of October, one
28 User of Ways. [chap. hi.
in the liigliway act ; but the penalty on the driver is a sum not
exceeding 40*., and on the owner not exceeding 5/. Moreover,
if the driver of a A\'aggon, or of any carriage, should not, when
meeting another carriage, keep to the left side of the road, the
same forfeiture will accrue {a). The mode of conviction, and
proceeding upon default, are substantially the same as in the
highway act.
Children un- Children who shall not be of the full age of thirteen years are
der thirteen forbidden to drive a cart or waggon on the turnpike road, under
not to drive. ^ penalty of not more than 10*., which is to be paid by the
owner of the carriage (6).
There is, moreover, this provision ; that, one person may act
as the driver of tw6 carts on a turnpike road, but there must not
be more than one horse to each cart, and the horse of the hinder
cart must be attached by a rein to the back of the foremost cart,
on pain of a forfeiture of 20*. (c) But this permission is not
available at a less distance than 10 miles from the cities of Lon-
don and Westminster {d).
Lastly, if the driver of any waggon, cart, coach, or carriage,
incur a penalty for offending against the provisions of any act for
making or maintaining a turnpike road, and refuse to give his
name, or if he abscond or absent himself so as not to be found,
any justice, upon complaint, shall issue a summons requiring the
owner of the carriage to appear, and answer the matter. If the
owner make default by refusing or neglecting to appear, or if he
appear, and do not within ten days either produce the offending
driver, or disclose his name or place of abode, the justice, or any
other justice, after examining into the circumstances, and satis-
fying liimself by proof on oath that an offence has been commit-
ted, shall adjudge the owner to pay the penalty. The penalty
thousand eight hundred and twenty three, paint, or cause to be painted, in one
or more straight line or lines, upon some conspicuous part of tlie right or offside
of his, lier, or their waggon, wain, or cart, or other such carriage, or upon the off
.side shafts thereof, before the same shall be used on any turnpike road, his, her, or
their christian and surname, and place of his, her, or their abode, or the christian
.and surname and place of abode of tlie principal partner or owner tliereof, at full
length, in largo legible letters, nOt less tlian one inch in height, and continue the
.same thereupon so long as such waggon, wain, cart, or otiier sucli carriage, shall
be used upon any turnpike road ; and every owner and proprietor of any waggon,
wain, or cart, or otlier carriage, who shall use or allow tlie same to be used on any
turnpike road, without the names and descriptions painted thereon as aforesaid, or
wiio shall paint, or cause to be painted, any false or fictitious name or place of
abode on such waggon, wain, or cart, or other carriage, shall forfeit and pay for
everv such olPence a sum not cxcceding_/iw pounds.
(«) Ibid. Or, if he interrupt other carriages, or the public. Ibid. And see
post. Cl>. IV.
{b) aG. ^■'•. 126, s. LSI.
(r) .•$ C;. \. c. 120. s. I. 30.
{,() Ibid.
CHAP.
ni.]
User of Ways.
29
is to be recovered and applied in the usual way prescribed by the
act (a).
The user of the highwatj with horses in waggons and carts is Highways,
restricted. The number of horses is regulated by the breadth of with how
the wheels*^ as will appear from the following scale. J^J^^"^^ ^^
be used.
Waggon.
With 9 -inch wheels
With G-inch wheels, '
but rolling on each
side a surface of 9
inches
With 0-inch wheels, "
but rolling a sur-
face of 6 inches ...
Less than 6-inch
wheels
To be drawn by
not more than
8 horses.
7 do.
do.
Cart.
To be drawn by
not more than
With 9-inch wheels 5 horses.
With f)-inch wheels 4
Less than G-inch
wheels
1^
do.
do.
But carriages moving upon wheels or rollers of the breadth of
16 inches on each side, with flat surfaces, may be drawn with
any number of horses or other cattle (6). The penalty for dis-
obeying the above rule is 5/. upon the owner, and 10.?. on the
driver for every horse beyond the legal number, and it is to go
to the sole use and benetit of the informer (c). There is an ex-
ception in favour of carts, waggons, or carriages carrying any one
stone, block of marble, cable, rope, or piece of metal, or piece of
timber, or ammunition or artillery for the king's service {d).
A table of weights as allowed upon turnpike roads follows in Weights
this place ; but with respect to the exemptions from additional «pon turn-
tolls which are imposed for over- weight, it has been thought pro- 1"''^^ roads.
per to mention them under the head of tolls in a future part of
this treatise (e).
(rt) 4 G. 4, c. 95. s. 73.
* The ordinary breadth of wheels allowable on turnpike roads will be found
in a future page, under the head of " Tolls," Ch. VII,
(6) 13 G. 3. (?; 78. s. 5fi.
(c) Ibid.
(rf) 13 G. 3. c. 78. s. 59.
(c) Post. Chap. VI L
30
User of Ways.
[^CHAP. III.
Table of
weights.
Adilitional
weights.
Table op Weights allowed in Winter and Summer to Car-
riages directed to be weighed (including the Carriage and
Loading).
Penalty on
persons un-
loading be-
fore coming
to thcweigli-
ing machine.
For every waggon with 9-inch wheels
cart with 9-inch do
waggon with 6-inch do
cart with 6-inch do
waggon with wheels of the
breadth of 4 inches and a half
For every cart do. do
waggon with wheels of less 7
than 4 inches and a half j
cart do. do
SUMMER. WINTER
Tons.
Cwt.
Tons.
Cwt.
6
10
6
3
10
3
4
15
4
5
3
2
15
4
5
3
15
2
12
2
7
3
15
3
5
1
15
1
10(«)
These regulations respect waggons, wains, carts, or other such
carriages (6).
Additional weights are allowed upon certain occasions. As,
to every caravan or other four-wheeled carriage used for the con-
veyance of goodsj and built and constructed with springs.
SUMMER.
WINTER.
Tons. Cwt.
Tons. Cwt.
4 5
3 15(c)
For every such carriage
And to every dray with two wheels of not less than 4i inches
in breadth, and drawn by not more than 3 horses, and used in
London, or within the bills of mortality, there shall be allowed
at all times of the year, together with the loading of the dray,
the full weight of 2 tons 16 cwt. (c?)
A penalty is imposed upon any person endeavouring to evade
the weighing at the proper place. For whoever shall unload
any goods, &c. from any cart, waggon, or other carriage, or cause
them to be unladen, before the same shall come to any turnpike
gate or weighing machine, or shall load or lay upon any such
carriage after it shall have passed any such gate, &c. any goods,
&c. taken or unladen from any horse, cart, or other carriage be-
longing to or liired, or borrowed by the same waggoner or car-
rier, in order to avoid payment of the duties for overweight ; or if
any person shall so unload in order to carry considerable quanti-
(a) 4G.4. C.95. s. 89.
lb) 3 G.4. c. 126. s. 12.
(c) Id. s. 13.
((/) Id. S. 1 i:
CHAP, in.] User of Ways. 31
ties of goods through any gate or machine in one and the same
day, and so pay less toll than if the goods, &c. had not been un-
laden ; or if any driver of any waggon or cart sliall not wait a
reasonable time, whilst any other carriage shall be weighed Avhich
shall have come to the engine before the carriage of which he is
the driver ; or if such driver shall refuse or delay to remove or
draw any such waggon, &c. from the macliine, so as to impede or
delay the weighing of any other waggon, &c., or shall turn or
drive out of the road in order to avoid or evade the weighinj; of
any waggon. Sec, the offender, being lawfully convicted before
one or more justices for the limit Avhere the offence was com-
mitted, upon the oath of a credible witness, shall forfeit 5/., to
be levied upon the goods and chattels of the owner of the wag-
gon, &c., and every driver, not being the owner as aforesaid,
shall, on conviction, pay 40,y., and in default of payment shall be
sent to the house of correction for a term not exceeding two ca- *
lendar months (a).
Both in the highway and turnpike acts, two oxen are to be
considered as one horse for all the purposes of the respective
acts (6). Power, however, is given to magistrates to license, at Supemume-
their general quarter sessions after Michaelmas, an increase of ^"-^y ''orses.
horses over and above the number, to go up a steep hill, or upon
any road, not being turnpike, within their jurisdictions, if they
shall see fit upon inquiry into the condition of the roads, and
this license may be revoked, altered, or varied at any Michael-
mas quarter sessions (c).
If the prosecution for using supernumerary horses be before a
justice of peace, the information must be laid within three days
after the offence ; if there be an action intended, it must be
brought within one calendar month, and in either case, notice
must be given to the owner or driver of the intention to prose-
cute on the same day on which the offence has been commit-
ted (d). But magistrates are invested with authority to mitigate
or abolish these prosecutions. If the offender should live so far off,
as to make it inconvenient for him to attend before the justice,
the complaint may be dismissed, and the informer left to his
remedy at law (f).
The justice may stop the proceedings, and, indeed, is bound to
do it, Avhere it is sworn by credible witnesses, to his satisfac-
tion, that the ordinary allowance of horses or beasts of draught
cannot draw the waggon, &c. on account of deep snow or ice.
(a) S G. 4. c. 126. s. 20.
(b) 13 G. 3. c. 78, s. 69. 3 G. 4, c. 126. s. 38.
(c) 13G. 3.C. 78. S.68.
{d) 13 G. .3, c, 78. s. 57.
(e) Ibid.
32
User of Ways.
[chap. in.
Skid pans or
slippers on
turnpike
roads.
Loaded carts
on rail roads.
Nails of
wht'cls.
Dogs.
And any court of justice authorized to enforce the execution of
the act may exercise the like control (a).
To prevent the destruction of roads by locking wheels ; skid
pans^ or slippers, are prescribed by the legislature at the discre-
tion of the trustees of the roads. Such trustees or commissioners
of turnpike roads may hold a meeting for the purpose of making
the order ; ten days' notice in writing being fixed on the turn-
pikes. This being done, the trustees, &c. may order, that a skid
pan, or slipper, shall be placed at the bottom of any locked
wheel descending a hill on the turnpike roads during the whole
time of its being locked ; and in such a manner as to prevent
the road from being destroyed or injured. This order may be
repealed, altered, or renewed at discretion. If the driver, or
any person acting as such, shall offend against this mandate, he
is to be fined a sum not to exceed twenty shillings {h). But the
offence must take place while the order is in force, and a copy of
the order must be fixed upon the turnpikes for at least thirty
days before it can operate (c).
It is enacted by the turnpike act of 1823, that if any waggon
or cart built or constructed to be usually used on any rail-
way or tram-road shall be drawn or pass loaded on any turnpike
roads out of or away from such rail-wiiy, &c. for more than one
hundred yards, the owner of or proprietor of such waggon or cart-
shall forfeit forty shillings, and the driver, not being the owner,
twenty shillings for each time the Avaggon or cart shall be so
drawn and pass ((/).
The same act further directs, that the nails of the tires of
wheels belonging to waggons, wains, carts, or such carriages,
which are used upon a turnpike road, shall be so countersunk as
not to project beyond one quarter of an inch above any part of
the surface of the tire. The forfeiture for disobeying this is a
sum not exceeding forty shillings, to be paid by the owner, and
a sum not exceeding twenty shillings to be paid by the driver
upon every occasion of using the waggons, &c. upon the road (e).
There is a provision respecting carriers' dogs worthy of notice
in this place. It is ordained, that whoever has the care of
(a) 13 G. 3. c. 78. s. 59. There was a similar provision in the old turnpike
act of 1.3 G. 3. which is not continued in the new statutes upon the subject.
13ut a case occurred under that act, in which it was held, that the application
to stay proceedings ouyht to have been made to the court above in which the
action was brought, and that the defence was not available at nisi prius. It will
apply, by analogy, to tiie liiglivvay act. 1 1 East, IB*, Kobinson v. Pocock.
(t) 3 G. 4. c. \2i3. s. I'^G.
(r) Ibid.
\d) 4 G. 4. r. 95. s. 1«.
{e) 4 G. 4. <•. 95. s. ':l.
CHAP. III.] Vaer of Wai^s. 38
waggons, wains, carts, or such carriages on turnpike roads, and
used for the purpose of conveying goods for hire or reward, shall
chain or fasten their dogs to the waggon, &c. upon pain of for-
feiting a sum not exceeding twenty shillings (a).
The prohibitions just mentioned arc imposed by the acts of par-
liament for regulating highways and turnpike roads.
As, however, the better opinion seems now to be, that there Dedication.
may be a partial dedication of a highway to the public, tliere
may, probably, be a restriction by the owner of the soil on a par-
ticular kind of carriage, a coal cart for instance ; and, at all
events, a right for foot passengers may be given, with the re-
striction of a carriage way, for the public are obliged to take
secundum Jormam doni. If a land owner, therefore, think fit to
grant a road through his estate for all purposes except that of
carrying coals, the way so granted must be used according to the
permission, and if it cannot be so used without a general dedica-
tion of the road, which is contrary to the intention and will of the
grantor, it cannot be used at all (b).
" The right," to use the words of a very learned judge, '' can-
not be more extensive than the right imports." (c)
Cattle should be driven directly along the highway, and should Cattle.
not be suffered to linger, for it seems, if they do any thing but
pass and repass, it is a trespass {d). Therefore, where it Avas
pleaded in bar to an avowry that cattle, being in the highway,
erred and escaped thereout into the adjoining close through de-
fect of fences, the court held the plea bad, for it should have
been shown, that the beasts at the time of escaping were passing
on the highway (e). For the property of the way is in the
owner of the soil, subject to an easement for the benefit of the
public, and a lawful user must, therefore, appear (y). And cattle
straying on a turnpike road may be impounded {g).
The extent of the user of private ways is governed in some User ofpri-
respects by the same rule which prevails on the subject of high- vatu ways,
ways, namely, that the terms of the grant cannot be overstepped.
So that, if there be a grant in, through, and along a particular
way, it is not competent for the grantee to go across the land.
It might be very inconvenient to permit the grantee to use more
ways than one ; for example, he might destroy the original pas-
(a) 4 G. 4. c. 95. s. 76.
{b) 7 B. & C. 257, Marquis of StafTord v. Coyney.
(c) 7 B. & C. 261, by Holroyd, J.
{(l) 10 E. 4. 7. Bro. Tresp. pi. 321, cites S. C.
(e) 2 H. Bl. 527, Dovaston v. Payne.
( /•) By Heath, J. 2 H. Bl. 531.
(g) ^ Geo. 4. c. 95. %. 75.
34 User of Wai/s. {^chap. hi.
turagej and, therefore, a transverse road, under such circum-
stances, being inconsistent with the original grant, cannot lawfully
be made {a).
The principle is, that a man cannot use his right of way
beyond the terms of his grant, and there are many autho-
rities in support of this position. The defendant justified by
prescribing for a right of way to a certain close, but the plain-
tiff replied, that the defendant had brought a load of hay which
grew upon another close, along the way, and this was held a suf-
ficient answer, for if a man have a private way to a close, he
must not enlarge it to other purposes (6). So, where in trespass
it appeared, that the defendant had a way over the plaintiflf's
ground to another close, B., and that he not only used the way
thus, but drove his beasts to a third close, lying still farther off,
it was said, that when the defendant had driven his beasts to
the close B., to which he had his way, he might drive them \vhi-
ther he would. But it was answered, that the defendant might
purchase a hundred or a thousand acres adjoining to the close B.,
and thus the plaintiff would lose the benefit of his land ; and the
court acceded to this ai'gument, and gave their judgment for the
plaintiff, thereby supporting the doctrine, that a grant ought to
be construed according to the intent of its original creation (c).
So, if one be seised in fee of a place in a town shut out from the
street by a gate, and he be also seised in fee of a messuage and
piece of land adjoining, and he then infeoff another of that mes-
suage, &c., granting him ingress, egress, and regress in, to, and
beyond the same premises and the aforesaid place and gate ; un-
der this grant the feoffee may go from the street through the
gate, and over the place to the messuage, &c., but not through
the said gate or place to other places, or from other places to the
street without coming to the messuages, &c., for the licence is
made appurtenant to the premises granted (d). But if the party
have a right to use the way in question, it is no objection to his
user, to say, that he passes along with the carriages of a third
person. So that, where the plaintiff charged the defendant with
making the way foundrous by reason of his carts and carriages,
and the defendant justified as servanl of one JV., the court resolved,
that the plea was sufficiently good, because the defendant had a
property in these carts and carriages by the possession (e). It
was the same right, and so not inconsistent with the grant.
A right of way for agricultural purposes, is a limited and qua-
(a) 1 T. R. 600, Sonhouse v. Christian.
(b) Fn-«ni. 217, Wcbsl(;r v. Bach. See 1 Ro. Ab. 391, Saunders v. Mose,
1 Liitwy. Ill, IH. LaM^,'ht.)n v. Ward, S. P. I Ld. Rayir,. 75, Lawton v.
Ward, S. C. But tlie Njierial matter must be shewn. 1 Rn. Ab. ubi supra.
(c) 1 Mod. li)0, Howell V. King. S'J II. 6. 6. Bro. Cliim. pi. 6, cites. S. C.
l), Ilodd.r V. Ilolnian.
(«) 1 Ld. Raym. lb, Lawton v. Ward. See also I Lutwy. 1 1 1.
III.]
User of Ways.
35
lified right. An action was hrouglit for breaking the plaintiff's
close. It appeared, that the occupiers of the defendant's field
had always used a certain head-land, belonging to the plaintiff,
for agricultural pur])oses, that there was a lime quarry in the
defendant's field, that the defendant had paid an acknowledge-
ment for the use of another road more circuitous than that over
the head-land, and thai he had only used the locus iii quo within
two years before the action. The defendant Avas in the habit of
carting lime daily over the locus in quo which was cultivated,
and he contended, that he might carry lime as well as corn over
the place in question, and that he might work his quarry gene-
rally. But Mr. Baron Wood was of opinion, that the defendant
ought to have shown a general and unqualified right, and that he
could not succeed by proving his never having been obstructed in
a user of the road for purposes of agriculture. The learned judge
added, however, that as some slight evidence of a general use had
been given, he would leave it to the jury, and they found a ver-
dict for the plaintiff (o). A question arose, whether a parson,
in carrying home his tithes, had a right to go by any road which
the farmer used. It was said, that he might do so, on condition
of doing no mischief; but the court entertained a contrary
opinion. They said, that the parson might use the same road
which the farmer would use for bringing home his nine parts,
but that if the parson were entitled to all the farmer's ways, it
might occasion great inconvenience. The parson would be en-
titled to the ordinary occupation way used for the close out of
which his tithes issued, and the direct or nearest way to the
public road would be the course which the parson should take (6).
So, if the owner of land have a private road made whilst an unity
of possession exists over certain property, which subsequently
becomes split into several occupations, the parson shall not neces-
sarily have that road for the purpose of carrying away his tithes,
nor is it indispensable that he should use the nearest way (c).
If there be a licence to use a certain way, it seems, that there Way to be
should be a seasonable user. As if one let a house, reserving used at
a way to a back house, the grantor may not come through the reasonable
house without request, and that too at seasonable times {d).
times.
A landlord may use a way, Avhile the tenement to which it Landlord
belongs is occupied by a tenant, for the purposes of viewing may enter
waste, demanding rent, or removing an obstruction (e). to use way.
(a) Holt's N. P. Cases, 455, Jackson v. Stacey.
(6) New. Rep. 4.6G, Cobb v. Selbv.
(c) 3 Gwill. 1109, Bosworth v. Limbrick.
(f/) 1 Ventr. 48, Tonilin v. Fuller. 1 Mod. 27. S. C. The lessee was not
bound to leave his doors open for the lessor's coming in at one or two o'clock in
the night; but he, the lessor, must keep good hours. 1 Mod. 27. By
Twisden, J.
(e) I B. & C. 8, Proud v. Hollis.
©2
36 User of Ways. [chap. iir.
What gran- The grantee of a way may not only use it by passing, repass-
tee of way ing, &c. consistently with his privilege, but he may do anything
may do. within the terms of the licence which may promote his own con-
venience and comfort. There was a grant of " a free and con-
venient way, as well an horseway as a footAvay, as also for carts,
wao;gons, wains, and other carriages whatsoever, in, through, over,
and along, &c." " with full and free licence to make and lay
causeways, &c." with the user and enjoyment of the way, and
" full and free liberty by all or any of the ways or carriages
aforesaid, to lead and carry stone, &c. coal, or other things," &c.
A framed waggon way for the conveyance of coal was made over
the land granted, and it was contended, that this could not be
done under the terms of the grant. It was said, that one way only
had been granted for the several purposes of passing on foot, on
horseback, and in common carriages, and that the road should be
used and repaired in such a manner as to meet all these uses ; and
with respect to causeways, it was urged, that the licence ought
to be understood of such ways as were in use at the time of the
grant, and framed waggon ways were not then used. But the
court were quite clear, that the grant had not been abused, the
parties had the carrying of coal in their contemplation at the time
of making the grant, and the grantee had a right to it in any
manner necessary for the purpose of enjoying the privilege in-
tended to be granted {«).
A right to use a piece of land as a foot or carriage-way was
granted, and therewith, " all other liberties, powers, and autho-
rities incident or appurtenant, needful or necessary to the use,
occupation, or enjoyment of the said road, way, or passage."
The original grantee possessed certain houses which abutted
upon the piece of land thus granted, and which were divided
from a house of the grantor of the land in question. By virtue
of this licence ^flag s/one was put down against a door of one of
the grantee's houses leading into the road, and this stone being
taken away by the defencjant, an action was brought. The
plaintiff recovered, by consent, and the court held, that he should
retain his verdict. At common law the right to repair is inci-
dent to tlie grant of a way, and if the plaintiff had repaired with
gravel, it might in time have become a puddle, so that he liad a
right to lay the stone for a permanent repair. It was further
said, that the grantee miglit use the way in tlie manner most
convenient to himself, provided he did not thereby produce any
inconvenience to the grantor {h).
User, when The course for passengers to pursue, wlien a road is foundrous,
ways are out overHowed, or out of repair, witli tlie distinction, in this respect,
of repair. betu'L'CJi /iiif/iii'ai/.0, Scnhoiise v. Cliristian,
(6) 2 New. Hep. 109, Gcrrard v. Cook.
37
CHAPTER IV.
Of Obstructions, or Interruptions of Ways, with the Remedies.
The object of this chapter is to mention some of the inter-
ruptions which occasionally take place on public and private
ways, and the various remedies which may be available in such
cases. But we do not propose to treat here of the entire
stoppage of ways which magistrates and other persons have
power to direct by virtue of legislative enactments. The exer-
cise of such an authority is one of those acts which extinguish a
way, and a separate chapter is devoted to the consideration of
extinguishment («). So, again, a distinct portion of the treatise
is set apart for the question of repair of ways ; the consideration,
therefore, of that remedy, where a road is obstructed by reason
of its being ruinous, or in decay, will be found in another place.
We propose to notice,
I. What are interruptions.
II. What road passengers may take when the obstruction
arises from accident, &c.
III. What the remedies are, when the road is wilfullij ob-
structed. -
The legislature has forbidden all obstructions on highways and I. Waat an
turnpike roads, and has so regulated those public ways as to interruption.
afford the most ample enjoyment of a full and free passage along
them.
Thus, no tree, bush, or shrub is allowed in any highway No trees
within fifteen feet from the centre, unless it be for ornament or allowed,
shelter to the house, building, or court-yard of the owner. The
surveyor is ordered, on pain of forfeiting ten shillings, to give
notice to the owner or occupier of the land where the tree, &c.
may be, and, within ten days after such notice to the party, or
to the steward or agent, the nuisance must be cut and carried
away by him, whether owner or occupier (A). Where timber
trees stand upon ground bought for the purpose of making it a
public highway, they must be fallen and taken away by the
owners Avithin a month after the order for altering the road, and
if they neglect, it becomes the duty of the surveyor to do it, and
(a) Ch. V.
{b) 13 Geo. 3. c. 78. s. 6. See post, in Ch. VII. Lowen v. Kaye.
trees.
38 Obstruction of Ways. Qchap. iv.
to lay the timber upon the land adjoining, for the benefit of the
owners («).
Hedges and Hedges, and boughs of trees must be kept cut and pruned.
boughs of The possessors of the land next adjoining to every highway
must cut, prune, and plash their hedges, and cut down, prune,
and lop the trees* growing in or near the hedges or other fences,
in such a manner as that the highways shall not be prejudiced
by the shade, and that the sun and wind shall not be excluded
from the highways to their damage. Should there be a neglect
to do this, the surveyor must complain to a justice of the limit,
and the possessor shall then be summoned to some special
sessions to answer the complaint. If it be the opinion of the
Bench that the requisites of the act have not been complied with,
after hearing both the surveyor and the land owner, (or, if he do
not appear, after due proof of summons,) they may order the
hedges, &c. to be cut, &c. as is mentioned above. Further, if
the possessor of the land shall not obey the order Avithin ten
days after due notice, he is made subject to a forfeiture of two
shillings for every twenty-four feet in letigth of hedge so
neglected, and two shillings for every neglected tree ; and the
surveyor is then empowered and required to fulfil the order, the
charges of which must be paid by the defaulter, or, if he do not
pay, may be levied upon his goods by warrant. There is an ex-
ception in favor of trees planted for shelter or ornament, as
mentioned in the sixteenth section (h). There is, however, a
time prescribed for these prunings, &c. and it is provided, that
no surveyor shall compel the cutting of hedges except between
the last day of September and the last day of INIarch ; that no
person need fell timber trees growing in hedges at any time,
unless in the case of enlarging high\vays ; that no oak trees
growing within the highway or the hedges need be cut except in
April, ^lay, or June ; nor any ash, elm, or other trees, except
in December, January, P'ebruary, or IMarch (c).
The same regulations, with very trifling differences, are in force
for the good of turnpike roads. The cutting of the hedges must
be six feet from the surfaced of the ground, and the branches of
trees, hushes, and shrubs must be also cut. Upon the complaint
of the surveyor, tlie offender may be summoned before the justice
himself, (and not at special sessions, as in the liighway act,) who
shall enforce tlie provisions of the act. The forfeiture for every
tree, busk, or shrub neglected to be cut, is twopence. There is
((/) I. 'J Geo. 3. c. 78. s. IG.
* Under tlie old law, a man was said not to be bound to lop his trees which en-
ciiinbered the way, aUlioiigli another niiglit have done it. I5y Keble, J. 8 H. 7. c. 5.
{b) ^:^ (mo. .-j. c. 7h. s. 7.
f.-j ];i Geo. :i. c. 78. s. \:i.
I 'J'he words in Italics are dilllreiit from, or nddilions to, the highway act.
CHAP. IV,] Obstruction of Ways. 39
an exception in favor of fences, trees, hushes, or shrubs m any
garden, orchard, planlafioti, ival/c or avenue to a house, or
being an ornament or slielter to the house, unless such tree, &c.
should overhang the road in such a manner as to impede or
annoy any carriage or person travelling there (a).
And it is provided, that no hedge is to be cut between the last
day of September and the last day of Blarch (b).
Gates erected by trustees on turnpike roads without the autho- Gates,
rity of parliament, may be removed by the magistrates. This
will be fully mentioned when we come to speak of the manage-
ment of the tolls. The turnpike act declares, that no door or
gate of a building, park, paddock, field, or, indeed, of any inclo-
sure, shall open into or towards the road, or any footpath belong-
ing to it, whether it be an old or a new gate, unless the hanging
post be so far from the centre of the road as that the gate, when
open, cannot project over any part of the road, or over any footpath.
The occupier is bound, after fourteen days' notice from the sur-
veyor, to comply with the requisitions of the act by having the
gate hung outwards, or, in default, the surveyor is authorized to
make the alteration. There is, however, a forfeiture of a sum
not exceeding 40*., which must be paid by the defaulter for his
neglect ; and, further, on complaint to the justices of the county
or place Avhere the neglect has been sufiJ'ered, and upon conviction
by the oath of one credible Avitness, the defaulter must pay the
surveyor a sum for his expenses in the alteration, as the ma-
gistrates shall direct, and they are also empowered to fix the
fine (c).
Persons are expressly prohibited from laying stones, timber *, Stones,
straw, dung, or other things in the highway; and if, in making,
scouring, or cleansing the ditches or water-courses, the soil or
earth dug out should be suffered to remain in the highway so as
to obstruct or prejudice it for five days after notice from the sur-
veyor, the ofiender is adjudged to forfeit 10>y., and the same sum
for laying stones, &c. as above [d). But, in addition to this, if
any stone or timber, or any hav, straw, stubble, or other matter
for the making of manure, shall be laid in the highway, within
fifteen feet from any centre, on any pretence whatsoever not
(a) 3 Geo. 4. c. 126. s. 116.
(b) 3 G. 4. e. 126. s. 117.
(c) 3 G. 4. c. 126. s. 125.
* It had been very early decided, that a man could not, as the inhabitant of an
ancient house in C, prescribe to lay logs in waste places of the way before his
door for fuel, leaving, nevertheless, sufficient passage for chariots, tS.c. The court
said, that a prescription to make a nuisance could not be good, and that the
prescription for the inhabitants of C. was not good. Cro. Jac. 446, Fowler v.
Sanders. See also 2 Ro. Ab. 137, Tit. Nuisance.
(d) 13 G. 3. c. 78. s, 9.
4W Obstruction of Ways. Qchap. iv.
tolerated by the act, and shall not be removed within six days
after notice given by the surveyor, or some person aggrieved by
the nuisance, the owner or possessor of the adjacent lands, or any
one else, may, by order from a justice, remove the obstruction,
and may dispose of the stones, &c. whatever it may be, to his
own use {a).
Waggons, Again, to set, place, or leave waggons, carts, or other carriages,
^^- ploughs, or instruments of husbandry, in the highway, so as to
hinder the free passage of the public, is an offence, and punish-
able by a fine of 10,y. But a reasonable time is allowed for a
waggon, &c. to load and unload, provided they stand as near the
side of the highway as may be convenient (L).
Various prohibitions are made against annoyances by the turn-
pike acts. The surveyor, or some person appointed by him, is
directed to remove and prevent all annoyances by filth, dung,
ashes, rubbish, or other thing whatsoever ; and if such be laid
upon an open common, it must not be done within eighty feet
of the centre of the road. There must then be a notice in
witing, signed by two trustees or the surveyor, and given to the
owner of the thing complained of, requiring him to remove the
annoyance, which he is bound to do within twelve hours after-
Avards ; or, if the owner be not known, such a notice must be
fixed for three days on the nearest turnpike-gate ; and then, if
it be not removed, the surveyor may sell the thing, whatever it
may be, in either of the above cases, for the benefit of the road.
The surveyor is to turn any water-courses, sinks, or drains,
Avhich run into, along, or out of any turnpike road, to the preju-
dice of it; and he is, further, to open, scour, and cleanse
Avater-courses, or ditches adjoining to the road, and to deepen
and eidarge them at his discretion, provided the owners or occu-
piers of such adjoining lands neglect to do so after seven days'
notice in writing. And for the charges of so doing, and of
removing annoyances, the surveyor is to be reimbursed by the
owners or occupiers. Upon a subsequent offence of a like kind,
the party so offending after the removal of the annoyance, is to
forfeit a sum not exceeding 5/. (c)
Pits. Whoever digs, makes, or uses a pit for sawing timber within
thirty feet of tlic centre of the road, unless it be enclosed from the
ntiid by a fence, shall ])ay a sum not to exceed 40.v., half for the
informer, half for tlie trustees (tr commissioners of the road, and
tlie latter half is to be a])j)lied towards the repair of the road (rf).
(o) l.'JG. 3. f. 78. s. 10.
\b) l.S G. .'J. c. 78. s. 11.
{(■) 'i Vt. i. r. 12(i. .s. 1 1'l. And for tlie mode of recovering tlic forfeitures, see
.3 0. \. c. 120. s. Ul.
(rf) 4 G. i. c. 9o. n. 72.
CHAP. IV.]
Ohslructlon of JVaj/s.
41
Other nuisances punishable, (being wlerrupliona) are by rid-
ing on footpaths, or causeways by the side of the road set apart
for foot-passengers; leading or driving horses, asses, muleg,
swine, or cattle, or any carriage whatever — or any wlicelbarrow,
trucli, sledge, or single wheel of any waggon, cart or carriage,
apart therefrum, upon the footpath or causeway ; wilfully pull-
ing down or damaging any bridge, wall, or other building, &c.
erected by trustees ; by hauling or drawing timber, stone, or other
thing, or causing it to be so moved, except upon wheeled- car-
riages; suffernig such things, being principally or in part carried
u])on wheel-carriages, to drag or trail upon the road to the
j)rejudice of it ; by using any tipstick, joggle, or other instru-
ment which retards the descent of a cart or carriage down hill,
so as to destroy, injure, or disturb the surface of the road ; by
killing, slaughtering, singing, scalding, burning, dressing, or cut-
ting up beasts, swine, calves, lambs, or other cattle on the road,
or by the side of it, or in any exposed situation near it ; by driv-
ing a horse or other beast upon the road carrying an iron bar or
rod, basket, pannier, or anything else, if the bar, &c. project
more than thirty inches from the side of the horse or beast, or in
any way obstruct the passage of man or beast, or carriage travelling
along the road ; by a hawker, higler, gipsy, or other person, who
travels with any machine, vehicle, cart or other carriage, with or
without horse, mule, or ass, pitching tent, booth, stall, or stand,
or encamping upon, or on the side of the road; by a blacksmith,
or any one occupying a blacksmith's shop, situate near the road,
with a window fronting the road, if he do not, every evening
after twilight, prevent the light from shining into the road by
good and close shutters ; by making or helping to make any bon-
lires ; by setting iire to, or wantonly letting off squibs, rockets,
serpents, or other fireworks within eighty feet of the centre of
the road ; by bull-baiting, playing at foot-ball, tennis, fives,
cricket, or other game upon the I'oad, or on the side of it, or in
any exposed situation near it, to the annoyance of any passenger ;
by leaving waggons, Avains, carts, or other carriages upon the
road, or the side of it without any one in the sole care of them,
unless for the necessary time occupied in loading and unloading
them, or in taking refreshment, and then they must be placed as
near to one side of the road as they conveniently may be, with
or without a horse or beast of draught harnessed to them — or,
unless in case of accident, and then for no longer a time than may
be necessary for the purpose of removing them ; by laying timber,
stone, hay, straw, dung, manure, soil, ashes, rubbish, or any thing
upon the road, the side of it, or the footpaths, or causeways ad-
joining, to the prejudice of the road or footways, or the prejudice,
annoyance, interruption, or personal danger of a passenger ; by
suffering water, filth, dirt, or other offensive matter to run or flow
upon the road or footpaths from the adjacent houses, buildings,
erections, lands or premises ; by suffering ])igs or bwiiie driven
IJiJing oil
footpaths.
Driving
iiorses.
Drawing
timber,
stone, &c.
Suffering
them to
drag.
Using tip-
sticks, &f.
Slaughter-
ing cattle.
Panniers
bulging out,
&c.
Tents.
Elaclc-
smitlis' fires.
Bonfires.
Fireworks.
Bull baiting,
foot ball
playing, &c.
Leaving
waggons,
&.C. by the
road.
Laying
timber, &c.
en the road.
Suffering
filth to run
along the
road.
42
Obstruction of Ways.
I^CHAP. IV.
Mischief
by pigs.
Leaving
stones, &e.
No wiiid-
milL
Impounding
stray cattle.
along the road to root up or damage the road, or the fences,
hedges, banks, or copse on either side of it ; by leaving a stone
or other thing used in blocking or stopping a cart, waggon, or
carriage in going up hill upon the road *. All these offences are
made punishable by a penalty not exceeding 40*. over and above
the damages occasioned (a).
And by a recent act, if any person shall injure, damage, in-
cumber, ride upon, drive upon, or otherwise use any yahlicjoot-
path or causeway, by the side of or adjacent to any turnpike road,
to the prejudice, annoyance, interruption or personal danger of
any person travelling, the offender shall be liable to the same
penalties as former acts prescribe for such offences, whether such
foofpath or causeway be kept up by the trustees of the adjoining
road, or the inhabitants of the parish where such path is, or by
any other person (6).
The erection of windmills is forbidden within 200 yards from
any part of the turnpike road, under a penalty of 5/. for every
day the windmill shall continue. But this provision does not
imply that the re-erection, or continuance of any windmill will
be lawful in any case where such windmill would be a public or
private nuisance by the common law (c).
Cattle should pass and repass along the turnpike road, but
ought not to linger upon it, much less to be suffered to stray.
They may be impounded if found wandering about. If any
horse, ass, sheep, swine, or other beast or cattle of any kind be
found tethered, or wandering, straying, or lying about any turn-
pike road, (unless it be over a common, waste, or uninclosed
ground,) the surveyor or any one else may seize and impound
them in the common pound (if there be any) of the same parish,
township, tithing, or place, or in any place provided or directed
by the trustees or commissioners for that purpose. The cattle
shall be detained till the owner pay 2s., with the reasonable
charges of im])ounding and keeping, to the treasurer, clerk, or
surveyor of the road, to be applied in aid of the tolls. If the
penalty and expenses be not paid within five days after the im-
pounding, a justice of the county or place where the offence has
been connnitted, may order the cattle to be sold, notice being
given previously to the owner, or, if he be not known, notices in
writing being affixed to the next toll-gates on the road nearest to
the place of tlic impounding; and the money arising from the sale.
* Or, by damaging lamps. Sec post, in this cliaptor, wilful damage,
(o) ;J G. i. c. 12(i. s. 121.
(/)) 1 fiHG. k (•.21. s. 16. This is a penalty for cbstiucling a foot-path,
whttlier it be repairable bv the trustees or not.
(<■) 3 G. i.e. 12G. s. l27.
CHAP. IV. 3 , Obstructiun of Ways. 43
after deducting the penalty and expenses, shall be paid to the owner
of the cattle, or, if lie be not known, and there be no ap})licati()n for
the money arising from the sale for twenty-one days, it shall be ap-
plied (the expenses being first deducted) in aid of the tolls. But
no one shall pay more than 5/. over and above the charges of im-
pounding for any number of cattle impounded at one time («).
There are two exceptions to this power of distress, the one
makes the impounding, the other, the detainer, wrongful.
For, it is expressly declared, that no right of pasturage ex-
isting on the sides of turnpike roads shall be taken away ; it
would, therefore, be perilous for any one to impound in con-
tradiction of sucli a right. Secondly, if previously to the sale
of the cattle it shall appear to the justice, that the impounded
beasts have escaped from any inclosure through the wilful or neg-
ligent leaving open or destruction of any gate or fence, by some
person who is neither the owner, nor occupier, nor in their
employ, the justice may remit the penalty (6). And for the
punishment of pound breach, whoever releases or attempts to re-
lease from the pound any cow, horse, ass, swine or other live
stock or cattle seized for the purpose of being imj)ounded for
offences against the act, maybe sent to the common gaol or house
of correction of the county, for a time not exceedijig three calen-
dar months, without bail or mainprise. The same penalty is
awarded against such as puU down, damage, or destroy the pound
or other place of confinement, or any part, or any lock or bolt
belonging, or used as a fastening, and against such as rescue or
release any distress or levy made under the authority of the act,
until or before the cattle seized or impounded, or till the distress
or levy made be discharged by due course of law, and against
such as make an attempt of this kind. The course to pursue is
to convict the offender before a magistrate of the county wlicrc
the offence is committed, either on his confession, or on the oath
of one credible Avitness, which oath the justice has power to ad-
minister ; the justice, then, upon conviction, commits the party
to prison by warrant under his hand and seal (c).
bidden.
Encroachments on highways are prohibited*. So tliat the Encmath-
making or causing any hedge, ditch, or other fences to be made "lents for-
on any highway not being turnpike roadt, within fifteen feet from
(a) 4 G. 4. c. 95. s. 75.
(6) Ibid.
(c) 3 G. 4. c. 126. s. 123.
* It was said in a very old case that no lord can punish purprcsture upon a
highway, unless he be lord of both sides. Keilw. J 41, pi. 11, Where a party
encroached on the highway, and added it to Iiis freehold, and then his heir con-
tinued the same encroachment, it was held that ho might be indicted, for, although
he had done no new act, the very continuance of the nuisance was a new nuisance.
2 Ko. Ab. 137, Lee v. Boothby. 2 Leon. 103, Weshbourn and ]Mordant's case.
f Which is protected from encroachment by distinct provisions in the turn-
pike act.
44 Obstruction of Ways. Qciiap. iv.
the centre^ wliere the breadth of the highway does not exceed
thirty feet, is visited with a forfeiture of 40*. to the informer for
every offence ; and the surveyor, who has the care of the road,
may cause the hedge, &c. to be taken down, or filled up at the
expense of those to Avhom they belong. And, further, the ex-
penses of taking down the hedges, as well as the penalties, may
be levied by any justice of the limit, upon proof made on oath,
by distraining on the offender's goods and chattels according to
the provisions of the (highway) act (a). The same penalty is
awarded against all who plough*, harrow, or break up the soil of
any land or ground within fifteen feet from the centre of the
highway, or turn their ploughs in ploughing or harrowing the
adjacent lands in or upon any of the land within that distance,
provided the highway be formed and marked, or described with
certainty, and that it do not exceed thirty feet (6).
The encroachments forbidden by the turnpike act are described
rather differently. The offences are — making, or causing any
dwelling house to be made, or any hedge or other fence on the
road, or at the sides of it, so as to reduce its breadth, or confine
its limits ; filling up or obstructing any ditch at the side ; mak-
ing, or causing a dwelling house or other building to be made,
or a hedge or other fence on any common or waste land on the
side of the road within thirty feet of the centret, if within three
miles of a market town, if beyond that distance, within twenty-
five feet ; making any drain, gutter, sink, or watercourse across
the road, or otherwise breaking up or injuring its surface ;
ploughing, harrowing, or breaking up the soil, or, in ploughing
ttr harrowing the adjacent land, turning the plough or harrow in
or upon the soil within the distances from the centre which are
above mentioned, whether it be on a road already made or on one
to be made ; making any other encroachment on the road within
{a) 13 G. 3. c. 78. s. 64. And as to the recover}' of penalties, s. 73. Under
tills 64tli section a surveyor is not empowered to remove a fence upon private
grounds ; and it is for the jury to say, whether an alleged encroachment be on land
which was anciently road, or upon the soil of an individual. The liighway act
does not say that every highway shall be 30 feet wide. 4 B. & C. 3, Lowen v.
Kaye.
* So it was considered before. G Mod. 145.
{b) 13 G. 3. c. 78. s. 64.
\ The legislature has defined the centre of the road. After a preamble, that
doubts might arise as to what sliould be deemed the centre, it is declared, that
wliere any matter is directed or foibiddt^n to be done by this or any turnpike act
within a certain distance of theceiitrt! of the road, that portion of ground shall be
deemed to be the road wiiicli the trustees, &c. have maintained with stones, gravel,
or other materials, for six months preceding any otience coijimitted against such
regulations ; and tiie centre shall he tlie middle of such hard road, wliere a line
being drawn along llie road, or a point marked, an equal number of feet of hard
road which have been so maintained for six months before, shall be found on
each side of such line or mark. 3 Cj. 4. c. 12G. s. 124. And see the pro-
vision against encroaching on waste land, lying by the side of the road.
CHAP. IV.]] Obstruction of Ways. 45
such distances from the centre as above stated. For these
offences, in the first place, a forfeiture of 40.y., payable to the in-
former, is incurred, to be levied by distress and sale of the
offender's goods and chattels, the overplus (if any) to be rendered
to him on demand. And, further, the trustees or commissioners,
who have the care of the road, may cause the encroachments above
forbidden to be taken dovv^n or filled up, or, in the case of any
ditch being filled up or obstructed, may cause it to be opened and
cleansed ; such alterations to be made at the expense of the per-
sons to whom the encroachments belong, and then, any justice
of the county may, upon proof made by oath, levy the expenses
attending the removal of the encroachments by distress and sale,
as in the case of the jxinaltics («).
If the driver of a???/ carriage whatsoever shall, by negligence Drivers,
or wilful misbehaviour, prevent or interrupt the free passage of
another carriage, or of any passenger on the highway, he is to be
fined a sum not exceeding 10.?., or not exceeding 20*. if he be the
owner of the carriage, and the conviction and penalties are to
take place as the act directs in other cases of misbehaviour by
drivers, to which we have adverted when speaking of the user of
ways (/^). A similar provision is to be found in the turnpike re-
gulations, only that the forfeiture is greater, the fine being a sum
not exceeding 40^-. if the driver be the offending person, and not
exceeding 5/. if the owner be convicted (c).
The wilful destruction and damage of conveniencies in high- Interrup-
ways and turnpike roads are offences of so serious a nature, and '^'°",-^ ^'y
occasion so much danger and injury to the public, as to warrant ^^' " '^"^"
us in classing them among the number of obstructions, although
the mischief arising from them may not be immediate, as in most
of the interruptions above pointed out. These wilful injuries
have been the subjects of legislative interference, and they are
visited with very exemplary punishments.
Surveyors are requii'cd to secure horse and foot causeways by Wilful mis-
posts, blocks, or great stones fixed in the ground, or by banks of chiefs.
earth cast up, or otherwise, and thus to prevent the causeways
from being broken up and spoiled by waggons or other carriages.
And whoever wilfully or wantonly pulls uj), cuts down, removes,
or damages the posts, &c. or drives carriages upon the banks and
causeways, or against their sides, or digs or casts down the banks,
or breaks, damages, or throws down the stones, bricks or wood, x
fixed upon the parapets or battlements of bridges, shall, on com-
plaint made to a justice of the lintit, upon the oath of one credible
(a) 3 G. 4. c. 12G. s. 118.
\b) 13 G. 3. c. 78. S.61.
(c) 3 G. 4. c. 126. s. 132. And a similar provision is repeated in 4 G. 4.
c. 95. s. 72.
46 Obstruction of Ways. I^chap. iv.
witnesSj or on view of the justice, forfeit a sum not exceeding 5/.,
nor less than 10^. and, in default of payment, shall be committed
to the house of correction of the limit, there whipped, and kept to
hard labour for a term not exceeding (me calendar montli, nor less
than seven days, as the magistrate shall see fit. The same
punishments are to be inflicted on such as pull down, destroy, ob-
literate, or deface any mile-stone or post, any graduated* or
direction post or stone, which is or may be erected on any high-
way (a).
The following wilful damages are provided for by the turnpike
act. These offences are, the wilfully pulling down, breaking,
or injuring any table of tolls set up at a toll-gate or toll-bar on
the road ; wilfully or designedly defacing or obliterating any of
the inscriptions, letters, figures, or marks on them ; wilfully
pulling up, or otherwise damaging posts, rails, or fences put up
by order of the trustees or commissioners of the road, or by their
surveyor, or which may hereafter be put up, to prevent acci-
dents either by the side of the road, or near any pit or quarry
used, opened, or made for getting stones, gravel, or other mate-
rials for the purposes thereof; causing damage to any bridge,
arch, wall, or other building or erection set up by act of parlia-
ment on the road, on any part, or on the sides of it ; casting or
throwing any earth, or rubbish, or other thing into drains,
ditches, culverts, tunnels, or any water course, made by autho-
rity of parliament, so as to obstruct the running or draining off
of the water from the road ; shovelling, scraping, gathering, or
carrying away the stones, gravel, sand, or other materials, or the
sludge, dirt, mire, drift, or soil from the footpath, causeway, or
any part of the road, without authority from the acting sur-
veyort ; digging, making, or using a pit for sawing timber or
wood within thirty feet from the centre of the road, except it be
enclosed by a fence. The perpetrator of each of these offences
must forfeit a sum not exceeding forty shillings, one moiety to
be paid to the informer, the other to the trustees or commis-
sioners of the road. The latter penalty is to be applied towards
the repair of the road {!>).
Damage to It is an oflxiuce unlawfully and maliciously to throw down, le-
turnpike vol, or otherwise destroy, in A^'hole or in part, any turnpike gate,
gates. ^j. ,jj^^, wall, chain, rail, post, bar, or other fence belonging to any
turnjjila' gate, or set up or erected to prevent passengers passing
by A\'ith()ut paying any toll directed to be paid by any act or acts
of parliament relating thereto ; or any house, building, or
• Denoting tlie depth of the water in tiie deepest part.
{a) l.'JG.;*. e. 7H. s. 5.'}.
f Also, prevciitin;^ persons from passing in any earriagc ; but this is not an
ofienro of wilful (l;iin:igc; see ante, p. iS.
(/>) i (i. \. e. 96. s. in.
CHAP, iv.] Obstruction of Ways. 47
weighing engine, erected for the better collection, ascertainment,
or security of any such toll. And every offence above enume-
rated is declared to be a misdemeanor, punishable upon conviction,
as in cases of misdemeanor {a).
Whoever pulls doAvn, damages, injures, or destroys any lamps Damaging
or lamp-post put up in or near the side of a turnpike road or 'ainjis.
toll-house on tlie road, or extinguishes the light of the lamp,
shall forfeit a sum not exceeding forty shillings over and above
the damage occasioned (6).
It is an interruption for any person to occupy a street for an Other in-
unreasonable time, although he be in the exercise of his ordinary terruptions
callino;. '" l''ghways.
A waggoner at Exeter suffered one, two, and, sometimes,
three of his waggons to stand in a street before his warehouse so
as to occupy (which was very commonly the case) one half of
the street, so that no carriage could pass on the opposite side,
the gutter being in the middle of the street. Besides this, the
waggons were loaded and unloaded in the street, to the obstruc-
tion of even foot passengers. This was held to be a nuisance,
and the court said, that the defendant could not legally carry on
any part of his business in the public street to the annoyance of
the public (c). In another case, the defendant occupied a small
timber yard hard by the adjoining street. Owing to the nar-
rowness of the street, and the construction of his own premises,
he had necessarily deposited long sticks of timber in the street,
and had them sawed into shorter pieces there, before they could
be carried into his yard. Upon an indictment, he was held not
to be justified in so doing (r/). So " if an unreasonable time is
occupied in the operation of delivering beer from a brewer's dray
into the cellar of a publican, it is certainly a nuisance " (e).
The proprietor of a Greenwich stage-coach permitted his car-
riages to stand in the highway near Charing-cross for three
quarters of an hour, taking in parcels, and waiting for passengers.
It appeared, upon an indictment against him, that many other
stage coaches came to the same. spot, that there were sometimes
six or seven in a row near the curb-stone, often two tiers, and
sometimes three, that private carriages could very rarely draw
up to the opposite houses, and that, there was, generally, consi-
derable obstruction and inconvenience in passing.
(a) 7 cS;8 G. 4. c. 30. s. 14.
\b) 3 G. 4. c. 126. s. 121. 7 & 8 G. 4. c. 24. s. 6.
(c) 6 East, 427, Rex v. Russell.
\d) 3 Campb. 230, Rex v. Jones.
(e) Id. 231, by Lord Ellciiboiough.
48 Obstruction of' Ways. [[chap. iv.
Lord Ellenborough said, the defendant must be found guilty,
that the king's highway was not to be used as a stable yard,
and that it was immaterial how long the practice might have
prevailed^ for no length of time would legitimate a nuisance. It
was quite different from the practice of setting down, or taking
up passengers, for that would be necessary for "piiblic conve-
nience. The defendant was accordingly found guilty (a).
So, it was held in an old case, that the suffering billets to
remain for a long time in the high- street after the unloading, was
a punishable nuisance (i). Though the unloading of them
would not be an offence, because of the necessity of the thing (c).
A person was placed upon the footway on Ludgate-hill to de-
liver out bills of the defendant's occupation, upon which she was
indicted for a nuisance, but the court quashed the indictment,
holding the matter not to be indictable (d).
Gates. Gates erected in highways, time out ^ of mind, are not any
nuisance (e). But if a new gate be so placed, although it may
be opened, yet it is an obstruction. In the first case, it might
be intended, that the owner of the land consented originally to
the way, on condition of having the gates there, and thus, that
they began by composition, or, that they had been put there
upon ad quod damnum, and no nuisance found ; but, in the
latter, no such reason would exist, and great inconvenience
would result from suffering them, to persons on horseback, for
example, people travelling with laden horses, carts, &c. {f)
Wall. One Browne was presented at the justice seat for the forest of
Windsor for erecting a brick wall, and so straitening the highway,
and it was said, by the attorney-general, that it could not be
assented * without an inquiry whether there were a sufhcient
passage left, for if there were not, be said, that the nuisance
could not be dispensed with (o).
House. Again, if a house on the highway be ruinous, and likely to
fall down, it is a nuisance, and the occupier, although he be
tenant at will, is bound to repair, for where the danger con-
(«) .S Campb. 224, Rex v. Cross.
{b) 2 Ro. Al). 137.
(c) Ibi.l.
(V/) 1 Rurr. .510, Rex v. Sarmon.
(r) 2 Ro. Ab. l.'JH.
(/) Cro. Car. IHi, .lames v. Ilayward. Sir Win Jones, 22 J. S. C. Croke, J.
of a (iifiJ.Tciit «|iiiiiun, auJ he cited 2 E. 4. 9.
* Li'.'ensed.
(i') Sir Will. .loncs, 277, Rrowne's case.
CHAP. IV.]
Obstruction of Ways.
49
cerns the public, they look to the occupier, aud not to the
estate (a).
If there be an acquiescence for twenty years in the using of a Twenty
fair or market, the persons fairly engaged in traffic upon such an years' usage
occasion shall not be convicted for a nuisance, as for obstructing °' ^ '^"' °'"
the highway. If sucli a fair or market were illegal, tlie party ^'^^ ^ '
offending might be proceeded against for usurping the franchise,
but not for a nuisance {b).
Although it may not be necessary for the legislature to pass Interrup-
enactments for the quiet user of private ways, it is quite clear, tion of pri-
nevertheless, that any act which prevents the grantee of a way ^'^'^ "-so-ys.
from enjoying it as he has been accustomed, is an interruption ;
as, ploughing the soil of the way (c).
The condition of a bond was, that the obligee should have
free egress, ingress, and regress out of, into, and back to a house,
and the complaint was, that the outward gates had been shut.
And ]\Ir. Justice Doderidge said, that to satisfy such a permission,
there ought to be a common entrance at the usual door, and that
the party ought not to be compelled to enter through a hole, a
backdoor, or a chimney. And if, added the learned judge, the
common door should be left open, but a ditch should, notwith-
standing, be made, so that the grantee could not enter without
leaping, it would be a breach of the condition. So, if having given
a person leave to go over land, the grantor were to meet him, and
threaten him if he should proceed, this would be an interrup-
tion, and the bond (if any) would be forfeited ((/).
So, digging trenches, tearing up the ground with carts, &c. are
interruptions, if the grantee suffer impediment by such acts, as
\\ here the way is filled with water in consequence of the damage
done.
If a private man have a way over the land of another by pre-
scription or grant, the grantor has no right to make a gate across
the path, and an action on the case will lie against the tort-feaser
for so doing (e).
II. What road passengers may take when an interruption of II. What
the way occurs. load to be
used.
With respect to a highway, it seems to be quite clear, that if
there be any obstruction, the passengers may go over the adjoin-
(n) 1 Salk. 357, The Queen v. Watts.
(6) 4 Esp. 109, Rexv. Smith.
(c) 2 H. 4. II.
(d) Latch. 47, Climson v. Pool.
(e) By Jones, J. Sir Wm. Jones, 222. Litt. Rep. 267. ace.
K
50 Ohslruction of Ways. [cnw. iv.
Highways, ing land. They may remove any illegal, improper, or inconve-
nient interruption, but if the ordinary track be so dangerous as
to compel them to leave the road, they may go extra viam,
passing as nearly to the original way as possible {a). The defend-
ant pleaded in trespass, that there was a highway from such a
place to such a place, that the plaintiff stopped it, so as to pre-
vent him from passing, and, therefore, that he went over the
plaintiff's close, doing as little harm as he could. And this plea
was held good upon demurrer ; for if the way be so foul as not
to be passable, the going over another man's close next adjoining
may be justified (/>>). And thus it is, as it respects a highwaij,
that a passage in Sir Wm. Jones is to be understood. If a man
incloses, and does not make a good way, it is lawful for passen-
gers to make gaps in his hedges to avoid the ill way, so that
they do not ride farther into his inclosed grounds than is needful
for avoiding the bad way (c).
Private But the case is quite different where a private way becomes
ways. foundrous or impassable, unless it be a way of necessity.
Hightvai/s are governed by a different principle. They are for
the public service, and if the usual track be impassable, it is for
the general good, that people should be entitled to pass in another
line (f/). But where the grantor prescribes a specific way for
the use of his grantee, it does not imply any right on his part to
go to the right or to the left. The defendant pleaded, to an
action of trespass, that a certain lane was so much out of repair,
and overflowed Avith water, that he was compelled to go through
the locus in quo as near to his said way as he possibly could, it
being imminently dangerous for him to use the other way ; and
the court held, that his plea on this occasion could not be sus-
tained. The plaintiff had not undertaken to provide against
the overflowing of the river ; it might have happened by the de-
fendant's neglect, and there was no general grant of a way over
the land. The plaintiff, therefore, recovered (e). The opinion
expressed by Mr. Justice Blackstone in his Commentaries, that
where a road is out of repair, he who has the right of way may
go over any part of the land he pleases (f) ; and a similar
passage in Comyns's Digest (g), seem to be entirely at variance
with this decision, unless their observations could be understood
as applicable to highways only. And it is now settled, that the
case in Douglas is a sufficient and substantial authority for esta-
blishing the distinction between public and private ways above
(a) Sir Wm.. Tones, 297, Henri's case. 3 Sallv. 182.
(/)) 2 Siiow. 28, Aljsor v. French.
(c) Sir Wm. Jones, 297. And see 1 Ro. Ab. .390, Sir Edward Duncombe's
case to till.' same ((lect. Ante, p. 4'. 1 Brownl. 212.
(d) I5y Lord Manslield, Dougl. 749.
(e) Doiifjl. 7i5, Taylor v. Whitelicad.
(/) 2 Bi. Com, .SO.
(u) Com. Vn;. Tit. Ciiimin, vol.2, p. 298.
CHAP. IV.] Obstruction of Ways. 51
mentioned. For, in a subsequent case, wlicrc a defendant pre-
scribed in a que estate ft)r a private way, and justified going
out of the way because it had become foundrous and impassable,
the court held such pleading ineffectual, and Lord Ellenborough
recognized the difference between the public and privateway («).
It was said by Holt, C. J., that if the water of a navigable Towing
river impairs and decreases the banks, every man might, of paths.
common right, have a reasonable way in the nearest part of the
field next adjoining to the river. And he likened it to the case
of a foundrous way in a great open field, upon v/hich travellers
might go over the outlets of the uninclosed land next adjoin-
ing (b). But, as this opinion proceeded on the supposition tliat
the public had a right to go upon the paths on the banks of
rivers, and, as it has been shewn (c), that such a right cannot
exist generally, but only by custom, the way can no longer be
considered as public, and it therefore seems to follow, that this
passage extra viam could not be justified under such circumstances
in conformity with the cases on private ways just mentioned.
But we have seen, that if a person think fit to stop up an
ancient road, and he assign a new one in lieu of it, it is no tres-
pass for the parties entitled to the old way to make use of that
newly set out (iU. M). (a).
(r;) (lodi). .Oii, Dike and Dunston's case.
\d) Codi). M.
(,') C;it(d (iodb. b'.i.
If) 1 Kcl). 8Hi.
Ifi) 2 H. 4. 1 1 . J I H. 4. 8.'}., and many other autliorities in the Year-books to
tiic same efrect. liro. Nusance, pi. S7. But. see 3i Ass. pi. 13, contra, wliich might
CHAP. IV. 3 Obitnictiun of' Wayn, 57
him wlio was tenant of the freeliokl against a frcehokler (o). For
example, Avhere one had a way from his meadow over the land of
another (J)). And so again, assise lay for a way from a house over
tlie land of another (c) ; from a hrmsc to church {(I) ; by a com-
moner for stopping the way to the waste (c), &c. So again, assise
would have lain for straitening the way, that is, if it were totally
obstructed ( /') ; or if Avere not totally interrupted, case lay (g).
But if either j)laintiff or defendant had but an estate for years,
an action on the case would lie, and not an assise (A). So,
if the stoppage had been by a stranger, an action on the case,
and not an assise, was the proper remedy (?"). And there was
a distinction again between a way in gross, and a way append-
ant, for an obstruction of the first, case would lie, and not
assise, for the latter the proceeding by assise would have been
}>roper {/c) ; though the grant were -within time of memory (/).
And a way in gross could not be changed into a way appendant
in this respect by a purchase of the land to wliich it was granted
in gross, for it continued in gross inasmuch as the party had not
the land at the time of the grant (?« ) .
It was said, that if a way were stopped by a hedge or ditch,
and afterwards the owner of the way died, and his heir found the
way open and used it, he should have an assise if disturbed, be-
cause it would be a new nuisance (h). Although the land were
aliened by the tort-feasor, yet if the feoffee disturbed the way,
under those circumstances, the same action w(iuld lie (o). The Quod per-
remedy by qtiod permiltat is now obsolete. It was, however, said ""ttat.
by Finchden, J. tliat unless a way Avere claimed as appurtenant
to some freehold, quod pe)-)nitlat would not lie for it (p).
The action on the case grew gradually into use, and super- Action on
seded the assise of nuisance. It met at first with some opposi- the case.
tion*, although, as we have seen, it was still in some cases
the only legitimate remedy. Judgment was arrested as late as in
be reconciled, if the way in question iiad been a way in gross. See Dy. 250.
3 Leon. 13.
(n) 50 E. 3. 11. Bro. Nusance, pi. 6. cites S. C. 3 Leon. 13. Nov. 1 12,
Gamford v. Nightingale.
(h) 20 Ass. pi. 18.
(c) Ibid.
(d) Ibid.
(e) 1 1 H. 4. 26. Cro. Eliz. 845. Sty. 4.70.
(/) 11 H. 4. 26.
(g) 33 H. 6. 26.
(fi) 3 Leon. 13.
(i) 33 H. 6. 26. 2 Leon. 131. cites, S. C.
Ik) 11 H.4. 26, by Hankford. Ero. Chiui. pi. 7, cites, 20 Ass. pi. 18.
(0 21 Ass. pi. 1.
(m) Ibid,
(n) 4 Ass. pi. 3.
(o) Ibid.
(p) 45 E. 3. 8.
* The court, in old times, said, that where a man could have nuisance, he
should not have trespass, for he shall have the most real action. 19 H. 6. 29.
58
Obstruction of Ways.
j^CHAP. IV.
the time of Qxieen Elizabeth^ because nuisance was not brought
instead of case^ for stopping a way by prescription (a). But soon
afterwards, the authority of this case Avas denied, and both
remedies, it was agreed, were open to the aggrieved party (6).
We have passed over this subject shortly, although it was once
of considerable importance and fraught with much learning, be-
cause an action on the case is now the remedy always substituted
for the old assise of nuisance. But it is not the only remedy for
an interruption of this nature. For if one disturb me in my
way with weapons, &c. trespass vi ct armis will lie for the in-
jury (c). This, however, is a grievance of very rare occurrence
now, and in most cases of obstruction of ways, we shall find the
action on the case to be the preferable mode of redress. One
had a messuage and a way to it through the freehold of another
person, and the passage was interrupted ; the house was then
aliened. It was held, that the alienee could bring no action for
the nuisance before request {d).
Award. Disputes on the subject of roads are occasionally submitted to
arbitration in common with other matters of litigation ; in such
a case it is necessary for the award to shew a title to any way
which it may prescribe. And so where the defendant was di-
rected to use another way in the room of that which he had been
accustomed to, but the award failed to shew any title, it was held
bad in tuio(e).
Covenant. An action of covenant will lie by a tenant against his lessor
for a breach of the covenant for quiet enjoyment by obstructing a
way of necessity (f).
Injunction. Again, if a way be in danger of being obstructed or destroyed,
an injunction may be obtained to restrain parties from effecting
such a mischief, as in the case of the colliery waggon-road men-
tioned at page 16 (g).
Mandamus. Lastly, a mandamus may in some cases be effectually applied
for. As where a railway was made under the authority of par-
liament, and it was declared, that the public should use it. The
proprietors of the railway, who were incorporated, subsequently
took it up, and a mandamus was granted, as being a more
cHicient remedy than an indictment in that particular case (h).
(n) Dy. 250, Ycvancc v. Holconib.
(b) ])y. 250, n. Aston's case, cited there. Cro. Eliz. 4.()fi.* S.C.
Cantrel v. Church. Dy. 250, n. Villct v. rarlciiurst, cited, S. P.
(c) IJro. Action on the Case, ])1. 29.
{(I) 1 Ventr. 48, Toiiilin v. Tidier.
(r) 2 Cli. CT. M. 5.
(Ii) 2 IJ. & A. (i'lG. Kcx V. Severn and Wye lluilway Company,
Id. 645,
CHAP. IV.] Ohstruclion of Ways. 59
It is worthy of observation, that it would be no answer for a No prc-
dcfondant to allege a prescription to stop a way claimed by pre- scniition
scription. The right of Avay is a lawful easement, and one cus- ^K''^'"^.' ^,
torn is as ancient as the other ; and therefore, if one have a way
to his frank- tenements, or freehold, over the land of another, it is
a bad plea to say, that the defendant has always been accus-
tomed to stop that way (a).
Thus, also, land cannot be appurtenant to land. Where a
wharf, with all ways, &c. was demised, together with the exclu-
sive use of certain land between high and low-water mark, but,
according to the finding of a special verdict, the land itself was
not demised, it was holden, that a distress for barges made upon
this land so demised was illegal, because either the land was de-
mised as appurtenant to the wharf, which could not be according
to the above-mentioned principle, or the mere use of it passed as
a mere privilege or easement, out of which rent could not issue,
and, consequently, upon which no distress could be taken (6).
Rent, therefore, cannot issue out of a way, as such.
(a) 9 Rep. 58, Aldrcd's case. 17 Vin. Ab. 284.
(6) 8 B.& C. HI, Buszaid v. Capel.
60
CHAPTER V.
Extinguish-
ment of
ways by vir-
tue of acts
of Parlia-
ment.
Of llie Extinguishment, Suspension, and Revival of Ways.
Highways, whicli have once been established as such, wliether
by reputation, dedication to the public, or otherwise, cannot be
destroyed, as we have before said. But this general principle
must be understood subject to the authority of parliament.
Again, a private person having devoted a way to general use,
can on no account be suffered to resume his individual rights.
But the legislature possesses, and frequently exercises the power
of altering and diverting roads, of improving them, or of stopping
them altogether.
This jurisdiction is most commonly carried into effect under
the highway and turnpike laws, and also under enclosure acts.
We shall proceed first to examine these as far as they relate to
the extinguishment of roads, leaving the consideration of other
circumstances which go to defeat rights of way, as unity of pos-
session, &c. for the remaining part of the chapter.
Upon the making of a new highway, the old highway is to be
stopped up, and sold by the surveyor, with the approbation of two
of the justices of the limit, to the owner of the adjoining land, if he
be willing to purchase it, if not, to some other person, for its full
value. Should, however, such old road lead to any lands, house,
or place which, in the opinion of the justices, cannot be accommo-
dated with a convenient passage from the new highway, if they
find it necessary, it shall be sold subject to the right of way
according to tlie ancient usage. In either of the above cases, the
money arising from the sale shall be applied towards the pur-
chase of the intended new highway, and the soil of the old road
shall become vested in the purchaser upon compliance Avith the
following directions : A payment or tender of the money must
be made, and a certificate given by the two justices, or the chair-
man of the quarter sessions (if the matter be there determined),
which certificate must describe the lands sold, the sum agreed
for, and a direction to whom it is to be ])ai(l ; and the purchaser
must then take a receipt from the party entitled to receive the
money by an indorsement on the back of the certificate. Never-
theless, mines, minerals, and fossils are reserved to the original
owners of the new way {. 1 19, Ilcigate v. WiUiams.
((,') 3 Bulst. 340.
(/) Latch. 1.53.
CHAP, v.] Extiiiguishment of Ways. 71
easement. But the court entertained no doubt upon the general
question, that where the possession of two closes becomes united
in one person, all subordinate rights and easements are extin-
guislied. And with respect to the word " appurtenances," wliich
had been so relied on at the bar, it was held, that its operation
must be confined to an old existing right, and that if any right
of way had passed, it must have passed as a new easement (a).
Had the devise been, " with the way now used," it would cer-
tainly have been a devise of the closes h. and C, with an ease-
ment newly created (/;). So also was the opinion of JMansfield,
C. J. " No doubt i right of way, like a right of common, must
be claimed as appur':8aant, and if either hath been extinguished
by unity of posses-'ion, it will no longer pass by the name of ap-
purtenant." (c)
But there is a material distinction, in respect of this manner of
extinguishmrjut by unity, between a way of necessity, and one
merely enjoyed as an easement. The right does not perish in
the former case. So that where a way is used to a vill, church,
&c. here, although there be a unity, the right will survive of
necessity. One had a way appendant to his house, and then he
purchased the close where his right lay, after this, he infeoffed
the plaintiff of the close, but continued to use his way, upon
which the plaintiff, the feoffee, brought his action. But judg-
ment was given against the plaintiff, inasmuch as the feoffor
might lose the benefit of his house, if he were not permitted to ,
have this road, and the distinction above mentioned was clearly
recognized {cV). So also IMr. Justice Doderidge declared, that
ways are not extinct, " if they be ways of necessity, as to the
church, or to the market, and so was Popham's opinion in his
time." (f) The court, in another case, refused to allow the ob-
jection on the score of this unity, because it appeared by the plea
that the way was necessary (^ )• One W. B. purchased a close
A,, with a right of way of necessity to it over another close B.,
which belonged to a stranger, and then purchased the latter
close, and subsequently a third close, C, adjoining to that to
which the way belonged. By the last purchase, he was enabled
to enter the first close without availing himself of the road as it
existed before the unity of possession. He then sold the close
B., over which the right was originally used, to the plaintiff, and
afterwards parted with the two others to the defendant, and the
question was, whether the easement would continue over B. to
the first close A. after the severance. The court were quite clear,
(a) 1 Bos. & Pul. 371, Whallev v. Tompson.
(6) Id. .376.
(c) 3 Taunt. 30.
((/) Ow. 131, Jorden v. Atwood.
(,-) 3 Bulstr. 340. Noy. Rep. 84. Latcli. 154. Popli. 1 72. Palin. 4,46. To
the same effect, Cio. Jac. 170. 190.
(/) 2 Lutwy. 1489, DuUon v. Taylor.
72 Extinguishment of Ways. [chap. v.
that the way had been extinguished if claimed as a way by pre-
scription, but they tliought tliat it remained in this case as of
necessity, and gave their judgment for the defendant in an ac-
tion of "trespass (a). And by Heath, J. " The way which it is
contended for the plaintiff that the purchaser has, is through the
purchaser's own land; but suppose that B. close had been
bought by a stranger, would there not in that case have been
a way of necessity to it ?" (Z»)
However, in a late case a doctrine has obtained, that when-
ever the necessity for such a road ceases, the easement so
claimed, of necessity becomes extinct. So that if such a way were
claimed, it would be a good answer to shew, that there was an-
other way which the party might use (c). The defendant was
possessed of four closes, and enfeoffed one G. D. of the close in
which, &c. and had no other way at the time of the feoffment to
his other closes except through it, which, ivc. ; Irut by a subse-
quent purchase, he was enabled to approach his own property
without going along this way. On trespass brought against him
for using the old way, he pleaded, that at the time of the feoff-
ment he had no other way but over the close in which, &c., and
was therefore entitled to have a convenient and necessary way
there. The replication was, that he had no right to have such
a way, upon which issue was joined, and the court gave judg-
ment against him {d).
(a) 5 Taunt. 311, Buckby v. Coles.
(6) Id. 318.
(c) By Park, J. 2 Bing. 85. 6 Mod. 4.
(f/) aBingh. 76, Holmes v. Goring. Notwithstanding this decision, the
autiior hopes it will not be deemed presumptuous to say, that the arguments of
the defendant's counsel \ipon this occasion do not seem to have been weighed as
they merited. It was said for the defendant, that " the necessity arises out of the
grant, and not out of any state ofj'actssubseqiietitto the grant, and therefore is not
affected by any subsequent ■modijication of property." It is difficult to resist this
reasoning. There had been no surrender of the way by the defendant, and it
seems that there cannot be any surrender of such a way by impUcation. Unity
of possession is the foundation of this way of necessity. If one sell a close sur-
rounded by other closes, a way to the close p\u-chased is given to the feofiee by
the law as incident to the grant. If the owner of those closes should sell all of
them except the middle cK)se, the law will reserve a way for him out of his feofl-
ment, as of necessity. It is presumed that the feofiee on the one hand must have
intended to grant the way, and on the other, tliat he designed to reserve or except
the way out of the; grant. But it has been said that this is a ncio way limited by
the necessity. With great submission there does not appear to be any authority
for tliis proposition. Kven, if there were, it could hardly be said to consist witli
tlic nature of tlie implied grant, or witli otiicr decisions. For the way so impliedly
granted or reserved, is, in terms as little ambiguous as possible, designated tho
old way. It is said to remain, and in all tlie authorities ihe way originally en-
joyed is declared not to have been extinguished, wiiich must have been the case
if a new way had arisen by reason of tiie fcotfment. It is said, moreover, to pass
(that is, the old way,) as incident to the grant.
With regard to tin; observation in 6 Mod. lliat it is a good answer to say that
there is anothtrr way, it clearly must mean liiat, if at the time of the feoffment,
or st.paration of tlie closes wiiich calls the way of necessity into action, there were
CHAP, v.] Extinguishment of Ways. 73
In 11 H. 4, 5. a (jiicvre is made as to the extinction f)f a way Way in
in gross by specialty, it being admitted, tliat a Avay by prescrip- C^^^s.
tion would be destroyed, by unity of possession.
Where a common in gross .sans nornhrc was granted, and the
waste afterwards came to the person having that right, it was
held, clearly, that such common was extinguislied in order to
prevent a surcharge («) ; but tliis reasoning Avill not apply to a
way, nor, indeed, even to a common in gross for a fixed number
of cattle. But on the principle, that a man woxdd have as higli
and perdurable an estate in the land as in the easement enjoyed
upon it, possibly the Avay miglit be abolished, although in gross.
And there is a rule, that the general and particular estate shall
not unite in the same person. And, besides, there would be no
land to the enjoyment of which it would be incident, for a way
in gross respects the person only (/;). No distinction, moreover,
is observable in the authorities subsequent to the quxre in the
Year-book between ways appendant and such as are in gross.
A private way shall not be merged if the place where it is Private way
used become a public way. An objection was once taken upon ^^'^ merged
this point to the right of a plaintiff to recover in trespass for ob- '" ^ '^'
structing his private right of way, because it appeared tliat the
public had exercised an uninterrupted user over it for twelve
years. Tlie plaintiff claimed by virtue of a grant by deed of an
occupation way, and it was contended, that however he might
maintain an action of covenant against the granlur as upon a
covenant running with the land, he could not complain of a
nuisance in a public way without shewing special damage. But
the court held, that he might rest upon the title derived under
the deed, and that he needed not resort to a general right, which
might possibly be disputed by conflicting evidence, and, especially
in a case of a public right of way growing out of an occupation-
way, which was the case before them (c).
Neither shall a way be destroyed by an alteration in the nature Way not
extinct by
anotlier convenient way, tlie plea of a way of necessity could not be supported, as
is most evident. To go farther, however, and to assert that if any other way
existed, the original way would be lost, would be to determine against the current
of all those autiiorities which expressly lay it down, that the party shall have a
convenient way.
On all occasions the law recognizes the old way, like an old landmark, with great
partiality, and, upon consulting the decisions, it will be found ver\' difficult to
justify the user of a new way under any cirumstances. For the way of necessity-
must arise by grant; and how can an original grant be shifted to another way
without the assent either of the grantor or the grantee, which must be pre-
sumed, incorrectly, as the author submits, if the doctrine in Holmes v. Goring be
the right one? These observations are urged with much diffidence.
{a) 7 H. 6. .3. Sir Wm. Jones, 286.
(6) See 21 E. 3. 2.
(c) 8 East, 4, Alleu v. Ormond.
74
Exthiguishment of Waifs.
j^OHAP. V.
the altera-
tion of es-
tate.
Ways not
devested by
non-user
for a time.
of the estate to which it is appendant. So that where a copy-
holder had a way time out of mind over the land of another
copyholdei'j and he purchased the inheritance of his copyliold,
which operated as an enfranchisement of his estate, and, of
course, as an extinction of his original tenure, yet, it was consi-
dered, that the easement was not altered by the change (a).
Ways, like commons, being collateral to the land, cannot be
devested. So that a party entitled to them does not, by non-
user for a time, lose his estate or interest. They are incorporeal
hereditaments, and remain attached to the soil which gives the
right to use them. But an adverse possession of twenty years
against the proprietor of a way, as for example, by enclosing
against him, \v'\\\ bar his right to recover in a possessory action,
and the party will, in such a case, be left to his remedy by assise,
or other real writ *.
Suspension
of ways.
Revival of
ways.
If a man having .premises to which a right of way is appur-
tenant should take a lease of the ground where the way is,
although the unity of possession here would not destroy tlie way,
(there being no combination of the inheritances,) yet, as an inde-
pendent right, it would be suspended during the term.
This subject of suspension is, however, so intimately connected
with that of revivor, that we shall proceed to consider how the
casement can be restored, or how it can be claimed as reviving
after a temporary suspension. And, indeed, according to a late
authority, it Avould seem, that the word, revival, is an improper
term, and that the new way arises rather by the operation of a
fresh grant, than the return of an old existing right.
An assise of nuisance was brought against the defendants for
obstructing the way to a mill by building a house across it. It
appeared, that an unity of possession had occurred, but that after
the decease of the owner, the lands descended to his two
daughters, and were allotted severally to them in purparty. The
land on which the way was, went to the defendant's share, and
the mill, ike to the plaintiff. It was agreed between the two
sisters that one should have the passage over the defendaiit's
land according to the ancient right. The objection was, that
sucli an agreement must be by deed, which the court overruled,
and awarded the assise. Here the convention between the two
sisters would opi^ratc on the part of her who possessed the way,
as a new grant {!>).
(a) 11 Vin. Ab. d'-lO, Emson v. Williamson.
• .So decided in the case of cnmmoiiable rigiits. 2 Taunt. 16G. Hawke v".
Bacon. Id. HiO, (^reacli v. Wilinot.
{!>) 2Il'y. .'i. y. ;il Ass. i>l. 1. IJro. E.\l. pi. 1 5. Brooke, C. J. says, it seems to
be a new way.
CHAP. V.3 Extingicishment of Ways. 'J5
In a case where there was a prescription to liave a necessary
easement to catch fisli in a several fishery, it was argued, that
the riglit couhl not ])e revived after an unity of possession by tlie
words, " all ways, emoluments, and hereditaments," for that the
latter term, Avhich alone could give any colour to such an opinion,
must apjily to such hereditaments only as were in being at the
tipie of the grant made (rt).
The same doctrine was subsequently laid down by Lord Chief
Justice Kyre. The two closes, one where the way existed, and
the other tb which it was an appendancy, became the property
of an individual who devised the latter with the " appurte-
nances/' and it was contended, that the way passed under this
word. But the court gave judgment against a revival of the
right. Eyre C. J. observing, that the only point which could
be made was, that the ancient right had been merely suspended,
and had revived npon the devise taking effect. The learned
judge said, that the operation of the word " appurtenances "
must be confined to an old existing right, and that had any right
at all passed by this devise, it must have passed as a new ease-
ment (h).
Of course an act of the legislature, which is competent to de-
stroy a way, would be sufKcient to revive it, if in any case it were
necessary to prevent mischief likely to arise from extinguishment
by unity of possession.
(«) In Tcers v. Lucy, 4 Mod. 364.
(6) 1 B. & P. 371, Whalley v. Tompson.
76
CHAPTER VI.
Of the Repair of Ways.
I. Repair of This chapter will be devoted to the consideration of the repair
highways. f,f highways^ (including turnpike-roads^) common, and private
ways.
The subject will be treated of under the three following
divisions :
I. Who ought to repair.
II. What roads are to be repaired.
III. How they are to be repaired.
I. Who to No principle is more clearly recognized, than tliat the parish
repair high- where the highway is, ought to repair it of common right («)- A
ways. common law liability attaches upon such an occasion which cannot
be avoided unless the charge be tixed by the fairest and most satis-
factory evidence upon others. And no agreement, with any
person whatsoever, can take away this burthen Avhich the law
imposes {h). Where, therefore, the corporation of Liverpool
were charged bj/ virtue of a certain agreement between them and
the owner of the land over which a street (the subject of the in-
dictment) had beqn built, and under Avhich agreement they
received certain monies from the occupiers for repairs, the coun-
sel for the prosecution admitted, that he could not support a
count founded upon such a contract (c).
Even if particular persons be made chargeable by statute to
the rc})air of roads, and they become insolvent, the justices may
cause the rest of the inhabitants to sustain their original liability
in respect of such repair {d). Soj where the inhabitants of a cer-
tain township were exempted from the repair of new roads by
tlie express provisions of an act of parliament, the I'est of the
])arish had judgment against them ex necessitate, since, they
were bound at all events to repair these new roads (f).
{ft) 1 Vciitr. 90. 18.3. JBD. 1 Ld. Raym. 725. 12 Moil. 109. 5 Burr. 2701
\,y Aston, J. 2 Show. 201. 2 Term Jluji! 111.
(/») 1 V.:iitr. 90.
(r) .*} Kiist, HI), Tlie King v. tlic Mayor, &c. of Livi.ri)0ol.
(d) I Lfl. J{.iyiii. 72.'i, Aiioii, jxT IIoll, CI1..I.
(<•) 2'J'i.Tm Kip. 106, Hex V. Slullicld InhnbitaiiU.
CHAP. VI.]] Repair of Ways. 77
So, where the paving of a particular street was committed to
the care of certain commissioners, and a fund was provided by
an act of parliament for that purpose, it was held, that the parish
ought, in the first instance, to see that the street was properly
paved, and then seek their remedy over against the commission-
ers (a).
So, again, the inhabitants of a township, bound by immemo-
rial usage to repair all roads within their to\\nship, wer^i held
liable, although the trustees, under a local turnpike act, were
directed to make the reparation from certain funds arising by
virtue of the act, for the tolls were only an auxiliary and subor-
dinate fund. There appeared besides, in the last case, a proviso
in the act, that no county, parish, township, &c. should be dis-
charged from repair. The inhabitants might apply, after convic-
tion, to the court against the trustees, under 13 G. 3. c. 84.
s.33(6)*.
This principle of keeping up the ancient charges on lands is
strictly adhered to. So that where a manor was held by the
service or tenure of repairing a highway, and the manor became
afterwards divided amongst several persons, each alienee, whether
tenant of the demesnes or services, was held liable to the Avhole
charge, his remedy being by contribution from the others. It was
held to make no difference, that the lord of the manor agreed,
upon each respective alienation, to discharge the purchasers from
tlieir share of reparations ; by such an agreement only the lord
and those Avho might claim under him would be bound. Nor
would there be any diversity, though the manor should come
into the hands of the crown (c).
Where certain lands having been given to the Abbess of
Barking for the repair of a way, were sold to the Abbot of
Stratford, who charged aJl Ids lands for the repair of the Avay, it
was contended, nevertheless, that no lands should be chargeable
save such as had been originally given for the purpose. But the
court adjudged that all the Abbot's lands were liable according
to liis covenant ((/). The parties originally liable cannot, there-
fore, deliver themselves from the cliarge wliich they have once
incurred.
Again, an indictment was quashed because it charged the
overseers with not repairing the highway, for the remedy was
considered, as a general rule, to be against the jiarish (c). So it
(a) 3 Campb. 222, Rex v. Inhabitants of St. George, Hanover Sq\iare.
(6) 2 B. & A. 179, Rex v. Netherthong Inhabitants.
* Now repealed, but the same provisions are reenacted by 3 G. 4. c. 12G. s. 1 10.
(c) 1 Salk. 3i")8, the Queen v. the Duchess of Bucklugh. 6 Mod. 150, S. C.
See post. Chap. VIII.
{(l) t Mod. 4-S, Rex v. Buckeridge.
\e) 12 Mod. 198, Rex v. Dixon and another.
78 Repair of' Ways. [^chap. vi.
was, where the indictment was against a division of a parish, Avith-
out shewing for what reason the inhabitants were liable (a). And
thus it is, that a parish cannot give in evidence under not guilly
that other persons are bound to repair ; such a defence must be
specially pleaded, for the parish is chargeable de conwmni
Jure (b).
Exceptions Circumstances, however, which operate to relieve the parish
to liability from the general liability above mentioned, are occasionally
of parish. brought forward ; we shall now proceed to examine into these.
By 22 H. 8. c. 5. s. 9. it was enacted, that such part and portion
of the highways in every part of this realm, as well within fran-
chise as without, as lie next adjoining to the ends of any bridges
Avithin this realm, distant from any of the said ends by the space
of three hundred feet, be made, repaired, and amended as often
as need shall require. This statute seems to have been only de-
claratory of the common law, for, in an old case, it was said, that
the Abbot of Combe ought to repair the bridge, and the highway
applying to the one end and to the other, although the soil
might be in another, in order that the easement might be pre-
served for the people (c). Nevertheless, upon a recent occasion,
this liability to repair ways adjoining to the ends of a bridge was
denied by the West Riding of Yorkshire. It was said, that the
burthen ought to lie on the parish, that the statute respected
such bridges only as were then in existence, and that those who
built such bridges might, probably, by immemorial usage, have
been bound to repair the adjacent highway, wherefore the sta-
tute interposed, and prescribed the limit of three hundred feet :
but the House of Lords affirmed the judgment of the court of
King's Bench, holding clearly the liability of the county to this
repair [d).
Lord Coke speaks to the same effect. " So.it is of a highway of
common right ; all the county ought for to repair it, because that
the county have their ease and passage by it, which stands with
the reason of the case of the bridge, yet some may be particularly
bounden to repair it as is aforesaid." (e)
A township may be placed in a situation similar to that of a
parish by evidence that its iidiabitants have, by immemorial
usage, repaired all the roads within it. Where, therefore, there
was a prescription to this effect, and but for such prescription
(«) ij I3urr. 2700, Rex v. Groat Broughton.
\b) 1 Vciitr. yrjO, Anoii. Seel Mod. 112, .SKcb.SOl. 3 Salic. 18.3. 1
Frcciii. .^21. Jiex v. St. Andrews, Ilolborn, S. C.
(<;) 4'i Ass. pi. .37, by Knivct, J. IJro. Al). Presentment in Courts, pi. 23, 29,
cites S. C See 2 Inst. 70.').
{(l) 7 Mast, .')H8, Rex v. West Riiling of Yorksliiie Inhabitants. 5 Taunt.
284., S. C. 2 Dow. 1. S. C. in error.
U) 13 Rep. S3.
CHAP. VI.] Repair of Ways. 71>
tlie roads would liave beon repairable ])y the parish at large, it
was licld, tliat the iiiliabitants of the townsliip were bound to
repair, and that, in order to prove their allegation that other
persons Avere liable, they ought to shew, in particular, who those
persons were (a).
It is, however, sufficient to prove, that some other persons are
liable, without pointing them out, where the indictment charges
a special prescription to repair a particular road, and the dis-
tinction is between such a prescription, and one to repair all
the roads within the township (b).
And if a public act of parliament should create an exemption,
the particular proof is not necessary, because all are supposed to
be privy to and to have cognizance of the statute (c). The imme-
morial usage must be shown where a burthen is sought to be cast
upon persons against common right (f/), and it is also necessary
to prove that some repairs have been done. Although upon the
indictment of a particular road, it is enough to show the pre-
scriptive liability, without adducing evidence of the defendant's
having repaired the way indicted (f).
We shall sec presently that particular districts and hamlets
may be specially subject to this charge.
One parish may be bound by prescription to repair a Avav within
another parish {f) ; but then some consideration for this liability
must be shown. In a case of this kind, the counsel for
the defendant urged, that the land over which the highway
lay might originally have been dedicated to the public in con-
sideration that the stranger parish would undertake its repa-
ration. But the court said, that the inhabitants of a parish
could not bind their successors as if they were a corporation, for
a burden might thereby be imposed on them beyond the benefit
which they were to receive, and it was holden, that no legal con-
sideration appeared upon which this parish could be charged.
Judgement was consequently given against the parish where the
highway was situated (g). Where, hoAvever, the road to be re-
paired is Avithin a particular district of the parish, &c. or in a
particular toAvnship, this objection fiiils. So that Avhere the in-
habitants of a particular district AA'ere charged AA'ith repair by
immemorial usage, the court held, the omissii)n of a consideration
to be immaterial (A). Tlie s;ime doctrine prcA^ailed AA'here the in-
((() 4. B. & A. 75, Rex v. Hatfield Inhabitants. See 2 B. & A. 183.
(b) 4. B. & A. 80, by Holroyd, J.
(c) By Lord Ellenborough, S Campb. 223.
((/) Aiidr. 276. 2 T.E. Ill, by Ashhurst, J. Id. 515.
((?) 4 B, & A. 78.
(/) 12 Mod. 40!>, by Holt, C. J.
(g) 5 M. & S. 260, Rex v. St. Giles, Cambridge, Inhabitants.
fh) 1 B. & A. 348, Rex V. Ecclesiield Inhabitants.
80 . Repair of Ways. [chap. vi.
habitants of the West Riding alleged that the township of Leeds
in that Riding had always repaired the highway at the end of a
county bridge within the township, but did not state any consi-
deration (rt).
A vill is liable to repair (b). So a hundred may be at com-
mon law (c).
A hamlet also within a parish may be charged by prescrip-
tion. But its immemorial liability to repair must be shown,
for it is not chargeable of common right {d). So that where the
indictment stated, that part of a way situate in an extra-parochial
hamlet was out of repair, and that the inhabitants of such hamlet
ought to repair it, it was holden bad, for no prescription ap-
peared, and it was not even alleged (which allegation, however,
would not have been conclusive) that the hamlet did not form
part of a larger district, the inhabitants of which might have
been bound to repair (e). Again, a private person may be liable
rationc tcnuroe, by virtue of his inclosure, as we shall see pre-
sently, or by encroachment.
To sum up the matters of which we have been speaking; 1st.
The parish is liable in the first instance generally. If the parish
claim an exemption, they must show in particular who are liable,
except it be in a case of a particular road. 2ndly. By imme-
morial usage a township, district, hamlet, &c. may be liable ; but
some act of reparation must be proved to have been done by such.
3dly. Should another parish be sought to be charged, some con-
sideratioti for the burthen must be tendered in evidence.
Enclosure. Next, the parish may be released from their ordinary charge
])V reason of an inclosure of the land on either side of the high-
wa\% For as it sometimes happens, that a road becomes found-
rous and out of repair, and consequently, that people go upon the
adjacent land, it is but fair, that the owner of that land, when by
the inclosing he deprives the public of th*s liberty and conveni-
ence; should compensate them by making a good way during the
existence of the inclosure (_/'). The rule is, that if one inclose
land on one side, the other side being anciently inclosed, he shall
be compelled to repair all the ■\\'ay ; but only half the way, if
there should be no ancient inclosure, and, clearly, if he inclose
both sides, lie becomes liable to the reparation of the whole way (i,*-).
So, if one encroach upon the highway, as long as the cncroach-
(«) 4- 15. 8i AA>:>:i, ]iv\ V. West Killing of Yorkshire Inhabitants.
{h) 27 Ass. 1)1. U. (21.)
(f) 1 Sid. 140, Ki'X V. Varloii Inliabitiints.
((/) I'cr Kollc, C.J., Sty. Hi:}.
((•) iJ 15. .Sc C. 1!»0, Kpx. V. Kingsnioor liiiiabitanl.s.
If) 2 Wins. Sauml. HiO, (a) n. (12).
(i;) 1 Sid. 40i.
CHAP, vr.3 Repair of Waifs, 81
ment continues, the party making it is liable to tliis charge (r/).
Although, if the obligation arise by reason of tenure, it cannot be
avoided by opening an inclosure, for the party is then perj)etually
bound (/;). And therefore the general principle is demonstrated,
that whosoever will make an inclosure must submit to the duty
of amending the way (c).
Positive evidence too must be given of an encroachment, if the
removing of such encroachment be urged as a defence; so that
where the defendant removed an old arch-way, and repaired the
highway adjoining several times. Heath, J., said, that there was
nothing to warrant the jury in calling that an encroachment, and
that the defendant by repairs done during twenty-five years,
showed a sense of his own liability {d). IMoreover, the way must
be made good and perfect. It will not be sufficient to maintain
it as it existed at the time of the inclosure; so that where the
defendant had made a causeway reasonably sufficient for horse-
men, but neither carts nor coaches could pass along it, nor meet
on account of its narrowness, nor go beside the way, it was held,
that the plea of not guilty was not sustained {e). The conse-
quences of neglecting the repair under these circumstances are,
the passengers may make gaps in the inclosures, and ride upon
the land to avoid the bad road (^ ); and the court upon one oc-
casion ordered the inclosure to be prostrated until the repair of
the old path were completed (^). It is, however, observable,
that these repairs are incurred by persons who inclose of their
own accord, for there is a distinction where such inclosure is
made by operation of law, or under the authority of an act of
parliament, or a writ ad quod damnum. And, accordingly, ^l'here,
under an inclosure act, a person fences in his allotment adjoining
to an ancient uninclosed road, the court considered, that he was not
compellable to repair (Ji). So, upon a writ of ad quod damnum,
and inquisition thereon. Lord Ilardwicke was of opinion, that
the new road need not be set out by the person who sues out the
writ, in his own soil ; that it is sufficient, if the inquisition be
executed in a fair and open manner, and that where the parish
can be at no further expense in respect of the old n)ad, the in-
habitants ought for the future to repair the new. However, if
the new road should lie in another parish, then the party suing
(rt) 2 Saund. 160, by Kelynge, C. J.
(6) Ibid, by Kelynge,
(c) Sty. 364, by Roll, C. J. 1 Ro. Ab. S90. A. 2 Ld. Raym. 1170, per
Holt, C. J.
(dj 5 Esp. 219, Rex v. Skinner.
(e) Cio. Car. 366, Sir Ed. Duncomb's case. 4 Vin. Ab, 503. S. C.
See post, p. 87, the distinction between the case of enclosure in this respect, and
the ordinary case of repair by prescription.
(/) Sir Wm. Jones, 296, Henn's case.
(g) 1 Keb. 894, Rex v. Hillarsden. See 4 B. & A. 75,
(/i) 1 Burr. 461, Rex v, Flecknow Inhabitants.
o
82 Repair of Ways. [chap, vi.
out such writ ought to keep it in repair, and his heirs lik^unse,
for the inhabitants of that other parish would not thereby be re-
lieved from the repair of the old way, inasmuch as they could
never have sustained the burthen of that repair {a).
Occupier. The occupier of land, and not the owner, is the person liable to
this charge of repair, and so it was determined on a motion for a
prohibition to the ]\Iarches of Wales upon an information pre-
ferred there against the owner (6). Sergeant Hoskins was in-
dicted for not paving the highway before his house ; but it was
not shown that he Avas seised of any house, nor that he dwelt
there, and the court upon this quashed the indictment, for it
might be that his lessee occupied the premises, who would in that
case be bound to mend the road (c).
A private person may therefore be bound to repair a highway
by reason of his tenure. But he cannot be held liable by pre-
scription, unless it be in respect of some consideration, as the
taking of toll, or other profit, although his ancestors have done
the repairs, for the act of the ancestor cannot charge the heir
without profit (d).
Dikes and However, the occupier is bound to cleanse the dikes and ditches
ditches. adjoining to his land without prescription. Such was the old
law, and the highway act confirms it. So that if one have land
adjoining to the highway, he must cleanse the ditch ; but if there
be other land between the road and his land, he cannot be com-
pelled to do it except by prescription (e). It is declared by the
statute above mentioned, that ditches, drains, or watercourses of
a sufficient depth and breadth for the keeping all highways dry
and free from water, shall be made and kept in good order, and
that sufficient trunks, &c. shall be laid down where any cart,
horse, or footways lead out of the highways into the adjoining
grounds, by the occupier of such lands. Every occupier bf lands
adjoining, or lying near to the highway through which the water
has been used to pass from such highway, is required, as often as
need be, to open and keep the ditches, &c. in good order, so that
the water may pass through without obstruction. A forfeiture
of 10*. is imposed upon any person making default in these par-
(n) 3 Atk. 7G6, ex parte Vennor. The writ, ad quod damnum, was superseded
for tlic most part by 13 G..3. c. 78. s. 19. Tliat section was repealed by 55 G.
8. c. 08, and tiic provisions of this latter statute superseded again the ad qitad
dammiin writ, but it is still occasionally resorted to.
(/>) 4. Vin. All. 501., Foster's case. See Palm. 389. 2 Ro. Rep. 412. But
if tiic owner allow ids land to lie fresh, he will not be excused from repair.
I'ahn. 3S9.
((■) Godb. 400, Sergeant lloskin's case. S. P. 1 Salk. 357, the Queen v.
Watts.
{d) 13 Rep. 33. S<-e Sty. 400, S. P.
\() H II. 7. 5. l)y Keblc. lire. Nusancc, pi. 28, cites S.C.
CHAP. VI.] Repair of Ways. 83
ticulars, tea days' notice having been previously given to him by the
surveyor (a). Should the ditches, gutters, or watercourses in use,
or which according to the ])rccodiii.
(ti) .'J Salic. 70. And see Hob. 212.
(A) 4B. & A. in, Hex V. St. Benedict Inhabitants.
CHAP, vi.] Repair of Ways. 87
also wliich the public make little or no use of, there being at the
same time another road leading for so short a distance round as
to be almost equally convenient, need not be repaired, for it is of
little consequence to the public, and it would be an immense ex-
pense to the parish. It M'as so held, in a case where the way to
be repaired did not exceed 100 yards in length, and the court
said, that if a fine were set, it could not in this instance be ex-
pended upon the highway, the charge being upon infonnalion (a).
But where an act of parliamcni makes a public road, the adoption
on the parish is not wanted, and their liability to repair attaches,
and so it was decided upon an indictment for not repairing a
highway in the parish of St. Pancras {h).
By the order of trustees under a local act, a road was carried
through the middle of a church-yard, and they caused a wall to
be built at their sole expense on each side of the diverted road
which they repaired for twenty years. A rule was then obtained
for a mandamus calling upon them to show cause why they should
not continue these repairs, and the court held, that as no clause
had been inserted in the act throwing the onus of repair upon
the trustees, they could not be made liable by implication (c).
We now proceed to speak of the mode of conducting the re- III. High-
pairs alluded to ; of the obtaining of materials for the purpose ; ways, how
of the statute duty imposed in respect of these reparations ; and "repaired.
of the composition upon such occasions.
It has been said, that if a man be bound by prescription to re-
pair a way, he is not compelled to put it in better condition
than it has been in time out of mind before (c?). And it has
been held, in accordance with this principle, that a parish cannot
be indicted for suftering a highway to be so muddy and narrow
that people can hardly pass along it (c). This, hov/ever, is now
remedied by the highway act. But, at common law, neither
ways nor bridges need be widened beyond their original limits.
And, if this be so, one is thus, as we have seen, under a less
obligation than in the case of an inclosure by him of the adjoin-
ing land, for he would then be under the necessity of making
a perfect road {f).
The legislature has especially pointed out the course to be pur- i, Proceed-
sued when a highway is out of repair. It is the duty of every ings to corn-
surveyor to inform any two or more justices of the county, &c. P^^ repair.
upon oath, of all highways, bridges, causeways, or pavements
upon highways, which may be from time to time in want of re-
(a) Sav. Rep. 92, Rex v. Steyning Inhabitants.
(6) 5 D. & R. 497, Rex v. Lyon.
(c) 2 Term Rep. 232, Rex v. Commissioners of Llandilo district.
{d) 6 Mod. 163. 1 Salk.359.
(c) 2 Ld. Raym. 1 169. The Queen v. Stretford Inhabitants.
(/) Po&t, Ch. VIII.
88 Repair of Ways» [^chap. vi.
pair, and which ouglit to be repaired by any person or bodies
politic or corporate, by virtue of any grant, tenure, limitation, or
appointment of any cliaritable gift, or otherwise howsoever. The
justices are, in consequence, to limit a time for the repair, of
which the occupier of the lands or tenements liable to the bur-
then, or the body politic, &c. chargeable, shall have notice from the
surveyor. Then, if the repairs be not effectually made within the
time limited, the justices in question are required to present such
highways, &c. so out of repair, together with the person or cor-
poration liable to repair the same, at the next general quarter-
sessions for the limit wherein the highways may be. The jus-
tices at the sessions may, if they see cause, direct the prosecution
to be carried on at the general expense of the limit, and to be
paid out of the general rates within the same (a). The justices,
moreover, at their special sessions, held by virtue of the act, may
direct, by writing, under their hands and seals, such highways
within their jurisdiction which most need repair, to be first
amended, (turnpike roads excepted,) and the time and manner of
the reparation may be ordered. The respective surveyors, each
within his liberty, are required to proceed upon this order, if
such be made {h).
With regard to the presentments, it is declared, that every
justice of assize, of the counties palatine of Chester, Lancaster,
or Durham, and of the great sessions in Wales, and every justice
of the peace, shall be authorized, upon his or their own view, or
upon information on oath by a surveyor*, to make presentment
at their assizes or great sessions, or in the open general quarter
sessions of the limit, of any highway, causeway, or bridge, which
may be in need of rej)air, or of any other default or offence done
contrary to the act. But all defects in the repair must be pre-
sented in the jurisdiction where such ways lie, and not else-
where.
Tliere is to be no certiorari in the cases of such indictments or
presentments until they be traversed, and judgement be givenf,
(a) 13 G. 3. c. 78. s. 23. In adJition to this remedy there are, first, tlie
indictment at common law, and, secondly, the presentment of a justice upon his
own view. Fines imposed on persons bound ratione tetiurfc are payable to the
surveyors of tlie highways, and therefore it is, that the court usuiilly give costs
upon such occasions. 1 Sir Wni. Bl. G02, Rex v. Wingfield.
(b) 13 G. 3. c. 78. s. 25.
* He must, however, be tlie surveyor of the pari.'-li, or township, over which his
office extends, and nr) otiier. 7 13. t't C. 4'38, Hex v. Fylingdales Inhabitants.
■f ]5ut tlie (cniornri lies for tlie iiing, for the king does not traverse. Cowp.
78, Kex V. liodeiihain Inhabitants. 2 Sir. 1200, S. P. liex v. Farewell. It is
no objection to tiie removal of a presentment by certiorari at tlie instance of the
prosecutor, that a private person is the real prosecutor, for the justice has avowed
the presentment, the court look to him, and lie is answerable for the costs. 2 Term
Hep. 260, Kcx v. Penderryn Inhabitants, And sec post at the close of the
next Chapter.
CHAP. VI. 3 Repair of Ways. 89
unless where the duty or obligation of repairing such highways,
&c. may come in question. Such presentments, so made, shall
be of the same force as if fimnd upon the oatlis of twelve men *.
The justices of assize, &c. have authority to assess such lines for
the default committed as they shall see lit, and the justices at
the quarter sessions, or the major part of them, may, if they see
just cause, direct the prosecution upon such presentments as shall
be made at the quarter-sessions, to be carried on at the general
expense of the limit, and paid out of the general rate within it.
But there is a saving to every person affected by such present-
ment of any laAvful traverset, as well nnth respect to the fact of
7ion-repair, as to the duty of repairing the highways, as might
be had upon any indictment of the same, presented and found by
a grand jury (ff). Moreover, the court before whom any pre-
sentment or indictment may be tried, is empowered to award costs
to the prosecutor to be paid by the defendants, if they shall appear
to the court to have made a frivolous defence ; and, on the other
hand, costs may be awarded to the defendants, if the prosecution
be deemed by the court to be vexatious (6). Lastly, if the inha-
bitants of any parish, &c. shall agree at a vestry, or public
meeting, to prosecute any person by indictment for the non-
repair of anv highway within such parish, &c. which they ap-
prehend such person is bound to repair, or for committing any
nuisance upon the highways, or, if they shall agree at such
vestry-meeting to defend any indictment or presentment pre-
ferred against them, then the surveyor of such parish, &c. may
charge in his account the reasonable expenses of carrying on, or
defending such prosecutions, the same being first agreed to by
the inhabitants at a vestry or public meeting, or allowed by a jus-
tice within the limit where the highways may be. Such expenses,
when so agreed to, or allowed, shall be paid by such parish, &c.
out of the fines, forfeitures, compositions, payments, and assess-
ments authorized to be collected and raised by virtue of the
act (c).
The certiorari, we have seen, survives in cases where the right Certiorari.
to repair may come in question, and, therefore, although a j)arish
only pleaded not guilty, it was held, that the certiorari had
properly issued at the instance of defendants who had made
* But where a high constable malces a presentment he must go before the
grand jur}', and give his evidence on oath. For want of this, a presentment was
quashed. 7 B. & C. 614, Ilex v. Bridgewater and Taunton Canal Company.
f The traverse as to the non repair was admitted before this statute. 3 Burr.
1530, Rex V. Wiltshire Justices. 1 Sir Wm. Bl. 407. S. C. Notwithstanding
that Holt, C. J. had formerly entertained a different opinion. But, even then,
the other judges differed from Inm. Carth. 212, Rex v. Hornsey Inhabitants.
The words in italics were not in the old act of 3 EL
(a) 13 G. 3. c. 78. s. 24.
(6) Id. s. 65.
(c) Id. s. 66.
90 Repair of Ways. [^ohap. vi.
the proper and usual affidavit that such right to repair would
come under discussion (a).
Costs. With regard to costs, it is worthy of notice, that the statute
only gives the court, " before whom the indictment is tried,"
power to award costs ; and, thus, the defendants lost their costs
upon one occasion by neglecting to apply to the judge at nisi
jn-ius{b). But it is sufficient if the judge certify upon the back
of the record that the defence has been frivolous, although he do
not expressly award the costs (c). And it makes no difference
that a rule has been obtained to arrest the judgment, for the
expense of going to trial would be saved to the prosecutor, if the
objection were taken on demurrer (d). The sessions awarded
costs against two persons, as prosecutors, whose names were not
at the back of the indictment. The presentment was made by
two other persons, constables of the hundred. The order for the
payment of costs was intitled as in the prosecution of C and E.,
the real prosecutors, but it did not shew, that C. and E. were
the prosecutors, nor that the indictment had been tried, and it
directed that such costs should be paid to the solicitor of the
parish, Avithout saying, that the costs were to be paid to the
parish. The judges held, that the sessions had done right, and
that their order was vabd (e). " Perhaps ", said Lord Ellenbo-
rough, " this order might have been as well if it had awarded
costs to the parish to be paid to their solicitor ; but, by analogy
to legal proceedings in the superior courts, where the attorney is
the authorized person to receive the debt and costs, the justices
have at once ordered the costs to be paid to the solicitor, as to
the person probably who made the disbursements on account of
the parish." (f)
The St. 5 W. and M. c. 11. s. 3. gives reasonable costs to the
prosecutor, if he be the party grieved, or a justice of the peace,
&c. or any other civil officer, who shall prosecute upon the
account of any fact committed or done that concerned him, &c.
to prosecute or present, if the defendant prosecuting the writ of
certiorari be convicted of the offence for which he may have been
indicted. A justice of peace, whether he present, or indict a
road, is entitled to costs under this statute (g).
(n) S M. & S. 465, Rex v. Taunton St. Mary Inhabitants.
(6) a Term Hep. 272, Rex v. Cliaddcrton Inhabitants.
(c) 6 Term Rep. 844, Rex v. Clifton Inhabitants.
{il) a M. & S. l.'JO, Rex V. St. Joiin Margate Inhabitants. Wliere a ilefend-
ant indicted for stoppini^ up a public highway, removed the indictment by cer-
tiorari, giviuf^ the usual recognizances, uiuhT .5 W. & M., and died before tiie day
in bank, iiisbail were held liable to pay tiie costs. 8 T. R. 409, Rex v. Fiiimore.
(«•) 4 M. He S. -20S, Rex v. Commerell and Ellis.
(/) 4M.«;S, 20«.
(;■) 2 Term Rep. 47, by A.shhurst, J. 5 Term Rep. 33, Rex v. Kettleworlh.
As to the costs of ajipcul, sec post, Ch. VII.
CHAP. VI.] Repair of' Ways. 01
Asj to the persons who may be considered as parties grieved,
the ])rosocutor of an indictment for stopping up a footway, who
appeared to have used the way before the obstruction, was lield
to be entitled to costs {a). 80, persons living in the neighbour-
hood of a way indicted by them for non-repair, and who had
been in the constant habit of using the way for many years
before it became foundrous, were held to be parties grieved,
being obliged to have recourse to a more circuitous route in con-
sequence of the default. The constable of the manor (another
prosecutor) within which the highway lay, was deemed to be
within the act, for it concerned him, as constable, to prose-
cute [h). But, where the prosecutor did not apply for costs
until two years after judgment, and there was no proof that he
had used the highway which had been stopped, but, on the con-
trary it appeared, that, whilst it was being stopped, he declared
he did not care about it, the court refused him costs as the
party grieved, although the prosecution was at his instance and
expense (c).
The parish, &c. being convicted, the next course is to impose Fines,
the fine. The great object in view is, that the way should be
repaired, and, where tlie defendants submitted to a fine, it was
said, that a distringas in infinitum should be aAvarded, until the
amendment were certified {d). And, in the same case, the court
said, that they would be certified of the repair before they would
set a fine (e). And the court refused to quash an indictment
upon an afiidavit that the way was in repair ; the defendant was
obliged to plead guilty, and pay a nominal fine {/)• It was moved,
to levy a good fine upon a convicted parish, because a horse had
broken his leg in consequence of the badness of the road, but it
was urged on the other side, that the parish Avas very poor, and
that there was an existing dispute between it and another parish,
as to the repair. The court, however, imposed a fine of twenty
pounds (g^). There cannot be more than one fine upon the same in-
dictment, the further remedy being by Avrit of distringas, or the
parish, &c. may be indicted afresh, and a new fine imposed (/«).
(a) 7 Tenn Rep. 32, Rex v. Williamson.
(6) 3 M. & S. 465, Rex v. Taunton St. Mary Inhabitants. See 8 Term
Rep. 409. 15 East, 570.
(c) 1 M. & S. 267, Rex v. Incledon.
(d) 6 Mod. 163. The Queen v. Cluworth Inhabitants. 1 Salk. 358, S. C.
See 1 Mod. 1 94.
(e) 6 Mod. 163. Which should seem to be a nominal fine. See Sir The.
Raym. 215, Houghton's case, 2 Show. 60, where a distinction was made
between submission to a verdict, and conviction by verdict; in the former case, a
certificate will be sufficient, but in the latter, the sheriff must return that the way is
repaired, because the verdict, being a record, must be answered by matter of record.
Cro. Car. 584, Leyton's case. See, as to the judgment, 12 Mod. 409, Rex v.
Ragley Parish.
(/) 2 Chit. Rep. 214, Rex v. Lincombc. 3 Smith, 575, Rex v. Loughtou
Inhabitants.
(a) Sty. 366.
{h) Rex V. Old Malton, cited, 4 B. & A. 470, n.
92 Repair of Ways. [chap. vi.
Contribu- The principle of apportionment and contribution is recognized
tion. upon these occasions both at common law and by statute. There
was an information for non-repair^, and the defendants denied
their liability, but their plea being holden bad on demurrer, the
court directed them to repair by consent, and said, that should it
appear that the others ought to repair part, they should refund
so much as should afterwards be found due on the trial («),
The highway act enacts, that no fine, &c. for non-repair, or
non-appearance to any indictment or presentment for non-repair,
shall be returned into the Exchequer or other court, but shall be
levied by, and paid into the hands of such person residing in or
near the parish, &c. Avhere the road is, as the court imposing
such fines, &c. shall order. The penalty is to be applied towards
the reparation of the highways, and the person ordered to receive
it, must account according to the direction of the court, or forfeit
double the sum received. Further, if such fine should be levied
on one or more inhabitants of the parish, &c. such persons may
make a complaint to the justices at their special sessions, and the
justices shall cause a rate to be made, by warrant under their
hands and seals, according to the form prescribed when the sta-
tute-duty is not sufficient (6). Such rate shall reimburse the
monies so levied to the parties complaining, and when made and
confirmed by two justices, it shall be collected and levied by the
surveyor of the parish, &c. so presented or indicted, who shall pay
the money so levied within one month after the appointing of the
rate (c). An indictment had been preferred against a parish, to
which a plea of not guilty was put in, and the parish having been
convicted, a fine was imposed. There Avere trwo districts in this
parish, and one of these districts, W., had not any notice of the in-
dictment, and, notwithstanding, the fine was levied upon an in-
liabitant of that to^vnship. Application was made upon this to
the special sessions, and a warrant was there issued for a rate on
the inhabitants of K., the other township, which rate having been
confirmed, the court of King's Bench were moved for a manda-
mus to the surveyor to collect it. It was stated in the affidavits
on the part of IV., that each district was bound to repair only
such part of the highway as was situate in their respective dis-
tricts. The court said, that as JV. township had expressly sworn
to tlu;ir not having had notice of the indictment, and as the in-
habitants of K. had taken the defence iipon them, it ought to be
considered as being sid)stantially an indictment merely against K.
But Buller, J., said, that the mandamus should be special, sug-
gesting that the part of the highway which was the subject of the
indictment lay wholly in A', township, and that the two townships
were separately bound to repair their respective parcels, for thus
(a) 1 Kcb. 277, Rex v. Yarcnton Inhabitants. Upon a subsequent conviction,
it may hv. presumed.
(h) Si;c post, in this cliaptcr.
(.;) 13 G. 3. c. 78. 6. 4-7.
CHAP. VI.3 Repair of Ways. 93
the inhabitants of K. might traverse in tlieir return eitlier of
those facts (a).
But such an application for reimbursement ought to be made
within a reasonable time after the levy, and an interval of eight
years was deemed too long, although the magistrates had been
frequently requested to make the rate, and although they had
ordered an account of the money expended upon repairs to be
taken as lately as one year before the application to the court of
King's Bench ; and also, notwithstanding that the n.-ason of
their declining to make the rate proceeded on tlie ground that
the parish at large had been improperly convicted, another dis-
trict being bound to repair^ as it was alledged, by immemorial
custom {h).
Lastly, provision is made for the proper letting of lands given LeUing
for the purposes of repairing highways, &c. and bridges. Such lands.
are to be let at their most improved yearly value without fine,
and justices, in their open sessions, may inquire into the value of
the lands given, or to be given, and may direct the improvement
and employment of the rents and profits according to the wiU of
the donors, if they find that there has been any default in the per-
formance or trust. Colleges or halls in either of the universities
of England are excepted from this jurisdiction (c).
The trustees or commissioners of turnpike roads are authorized Repair of
to contract with persons liable ratione tenurce, or otherwise, for turnpike
the repair of roads. They, their clerk, surveyor, or any other "^o^ds.
officer, by their order, may contract, or agree by the year, or
otherwise, with any person, for the making, amending, altering,
or maintaining the road, or any bridges, tolLhouses, or buildings
thereon, or for any other thing which trustees, &c. by any act
whatsoever, are authorized to make, build, do, execute, or per-
form. All such contracts and agreements in writing with any
workman or other person, concerning any thing to be done by
virtue of any act, shall be binding upon tlie trustees, &c. and
their successors, and upon all other parties who may sign the
same, and upon the executors and administrators of such other
parties. Actions and suits may be maintained on them by such
trustees, &c. and damages recovered against the defaulters, and
the measure of the damages shall be such sums of money as may
be requisite for the due performance of the particular contract
broken (f/).
Next, contracts for the repair of any part of the road, or
(a) Dougl. 420, Rex v. Townshend and another. 2 "VVni. Saund. 159,
(n. 10.) Rex v. Leominster Inhabitants.
(6) 12 East, 366, Rex v. Lancashire Justices,
(c) 13 G. 8. c. 78. s. 32.
(rf) 4. G. 4. c. 95. s. 7S.
94 Repair of Ways. [[chap. Vi.
of any bridges thereon, may be in like manner entered into be-
tween the trustees, &c. and any person liable by tenure or other-
wise, for such term as the trustees, &c. shall think prupor, pro-
vided it do not exceed three years. They may contribute such
sums as they may think fit out of the tolls towards such repair (a).
This liability by tenure is not destroyed by an alteration
of the line of road. For, after a preamble, stating that doubts
had been entertained upon the subject, it is declared, that every
body, politic or corporate, or person liable to repair any old
turnpike road, shall continue liable to the repair of any new road
set out in lieu of the old, which may have been widened, altered,
diverted, or turned ; or of so much of such new road as shall be
equal to the burthen and expense of repairing the old road, from
which the parties, by the alteration, have been exonerated. If
the parties be unable to agree, the road shall be viewed by two
justices of the county, and the matter shall be settled by them.
All presentments, indictments, and prosecutions for non-repair,
shall be borne by the persons liable, as soon as the justices have
made their determination. Further, if it be found convenient,
that these parties should pay a gross sum, or an annual sum, in-
stead of their repairing a proportion of the road, such justices
may, with the consent of such persons, and also of the trustees,
&c. obtained at a meeting, direct the same. Such order shall be
conclusive, and binding on all bodies, politic or corporate, and
persons whatsoever (b).
All paved ways or foot-paths within towns, villages, or ham-
lets by the sides of turnpike roads, are, nevertheless, to be kept
up at the cost of the inhabitants, or other persons liable, and,
therefore, unless there be a special provision for the purpose,
trustees, &c. are not authorized to repair them (c). Otherwise,
they must keep up causeways for foot-passengers as they may
think proper (d).
The trustees and parish upon the conviction of a road are to
have the fine apportioned respectively between them. Where,
therefore, the inhabitants of any ])arish, township, or place, shall
be indicted or presented for the non-repair of any highway, being
turnpike road, and the court before whom such indictment, &c.
shall be preferred sliall impose a fine, it shall be apportioned, to-
gctlier with the costs and charges, between the inliabitants, &c.
and tlie trustees, &c. according as the court shall tliink fit. The
treasurer of tlie turnpike shall, by order of tlie court, pay the
(n) 3 G. 4.. c. 126. s. 106.
\b) 4 G. ^. c. fi.'i. s. «H.
(( ) '.i C;. 4. c. 1^6. s. 1 12. See Andr. 270, Ilex v. Morton, wlicrc it was said,
that iiihnbitantx arc not bound to pave, but oulv to repair.
{). The assess-
ment to be levied, as we have already mentioned in a former
page(c), but it may not exceed l.y. {)d. in the pound, in one year,
of the yearly value of the lands, &c., assessed {d) +.
The surveyor may contract for labour when the proportion of
statute duty is insulhcient for the getting and carrying away of
(«) 1.3 G. .3. c. 78. s. 29. Sec the case of Boyficld v. Porter, 13 East, 200,
post, in the next diopter.
* The reimbursement must have been made at the special sessions under the
old law. Hex v. Islington, Comb. 2U3.
(6) 1.3 G. a. c. 78. s. SO.
(r)P.lOl..
(r/) 51. (». .3. c, 109. s. 3. and sec s. 1. wiiicii speaks of all the assessments of
tlie (Jeneral Highway Act.
f It was iitl. in tlie pound by 1.3 G. 3. c. 78. e. 30. and by tlic IGth section of
llic same statute, 'Jd. in tiie pound.
CHAP, vi.^ Repair of Ways. 109
the materials. He must call a meeting for the purpose, and con-
tract in the presence of his assistant if he liave one. Ten days'
notice of the meeting must be given in writing by fixing it (»n
the door of the churchy &:c., or most public phice in the parish,
tkc, which notice must S])ecify the work to be done, and the
time and place for letting it. A fine of 10/., and incapacity to
act again as a surveyor salaried , under the act, are the pu-
nishments to be inflicted on any surveyor who may have any
share, directly or indirectly, in such a contract on account of tlie
higliways, bridges, &c., under his care or management, or who
may, on his own account, let any team to hire, or sell or dispose
of any timber, stone, or other materials to be used in sucli re-
pair, unless he first obtain a licence in writing from a justice of
the limit to sell such materials, or let any such team to hire (a).
The time for removing materials for the use of any parish, IMaterials in
&c., other than that wherein the same are found, is restrained be- ".''"^'' P^-
tween the 1st of April and the 1st of November, or in the winter "slies, when
season, during hard frost {b).
We have already shewn, that satisfaction is to be made in case
of any damage done to private property ; it is observable, further,
that surveyors are to repair, as soon as possible, any mischief they
may happen to occasion. Thus, if in searching for gravel, &c., or Surveyor to
other materials, any pit or hole be made in any lands or grounds, fence ofi'pits,
rivers or brooks, wherein such materials shall be found, the sur- ''oles, &c.
veyor, or other person, must cause it to be immediately fenced ojf;
and the fence to be supported and repaired, while the pit or liole re-
mains open. Should no materials be found, he shall, within tliree
days after the opening of such pit or hole, cause it to be forthwith
filled up, levelled, and covered with the turf or clod which was
dug out. When materials shall be found, and sufficient have been
procured, he must cause the place to be filled up, sloped down, or
fenced off, within fourteen days, and so continued. Every sur-
veyor, on his coming into office, shall cause all })lts and holes
then open, and not likely to be further useful, to be filled \ip or
sloped down. And should they be likely to be further useful, he
must secure them by posts, rails, or other fences, to prevent ac-
cidents to persons or cattle.
:lect.
The penalties for neglecting these directions, are, 10*. for every Tenalties on
default in filling up, sloping down, or fencing off the pits or surveyor for
holes; a further penalty, not exceeding 10/., nor less than 40*.,
for neglecting to fence off such pits or holes, or to slope them
down, for the space of six days after notice received from a jus-
tice, or from the owner or occupier of such several grounds, river, or
brook, or from any person having a right of common within such
(a) 13 G. 3. c. 78. s. 60.
{!>) Id. s. 32.
110
Ilepnir of fVays:
[jiwv. VI.
Damaging
mills, &c.
Materials
from turn-
pike roads.
common or waste lands, such neglect and notice being first proved
upon oath before one or more justices. The justices to deter-
mine and adjudge the forfeiture, which is to be laid out in fen-
cing off, filling up, or sloping doMii the pits or holes, ai;u towards
the repair of the roads in the parish, &c., as the said justice or
justices shall direct, and to be levied, like other forfeitures un-
der the act, by distress («).
IMoreover, if any one, contrary to the direction of the act,
shall dig, or cause to be dug, materials for the highways, where-
by any bridge, mill, building, dam, highway, ford, mines, or tin
works may be damaged or endaugered, the oifender incurs a for-
feiture of a sum not exceeding 5/. nor less than 20,?., at the dis-
cretion of the court or justices before whom the complaint is
made {h).
The course to be pursued by the surveyors of the turnpike, in
respect of getting materials, is very similar to the highway re-
gulations. They may take materials from any common river or
brook, (not being within lifty yards of any bridge, dam, weir or
jetty,) or from any waste or common, where the road is in the
parish or in anj^ one adjoining ; — ^thev may do this ^\'ithout pay-
ment, or being deemed trespassers. But they must fill up the
pits or quarries, level the ground, or slope the banks, and rail
and fence off such pits, &c., so that the same may not be danger-
ous to any persons or cattle *, and if the materials be carried
over any inclosed grounds, they must in that case make compen-
sation for damages. As in the case of highways, the turnpike
surveyor may enter upon inclosed grounds for the purpose of
getting materials, provided he do not meddle with any garden,
yard, park, paddock, planted walk or avenue to any house, or
any piece of ground planted and set apart as a nursery for trees.
But he must in this last case make or tender satisfaction for
the 7nalerials t, and for the damage done, either where the mate-
rials are dug from, or where they are carried over, as the trus-
tees, &c., may think reasonable. And further, they may land
on and carry through any inclosed lands, not being garden, &c.,
or through any waste lands, — stone or other materials_jfor repair,
or for the building or repairing of toll-houses, from any river;,
(«) 13G..S. c. 78. s. 31.
(b) Id. s. .33.
• With scarcely any variation, there is the same provision in a suliseiiucnt
section, for (illiiig iij) ])its, &c. as in the highway act, only that the penalty in tiio
first instance by the tiinipila; is 2()s. instead of 10.s. for every default. 3 G. •!•. o.
12(>. s. >.)'.).
■j- A recent act su))pos(!s the case of sucli materials being of Jio value, and de-
clares that the trustees shall not be re(piired to pay more f(ir materials tlian such
sum as it siiall ;i])pear to the two justices that such materials could be sold for in
case the trustees had not taken tliem. The justices to assess the dti/n a 'ii'.'t done in
the lands only, in ease tiiey may be of opinion tliat such niaterials could not be sold
or disposed of before the taking of them. 7 & 8 G. 1. c. iJi. s. \!i.
CHAP. VI.] Repair of Ways. ] 1 1
stream, or canal in any parisli, &c., wlicrc the road is, or adjoin-
ing parish, &c., paying or tendering for the damage according to
the discretion of tlie trnstecs, &c. Should there be any diifer-
ence between tlie trustees, surveyors, &c., and these owners or
occupiers, any two or more justices for the county, &c., wherein
the place whence the materials have been taken is situate, shall
settle the matter, and adjudge the costs attending the hearing,
upon ten days' notice in writing given by cither party to tlie
other (fl).
Before these materials arc taken from private lands, notice
must be given in writing, signed by the surveyor, to the respective
owners or occupiers, or left at their houses, or last or usual places
of abode, in order that such persons may appear before any two
or more justices for the county, &c., from whence the materials
are intended to be taken, to shew cause why such materials
should not be so had. If the party should attend, and should
not shew sufficient cause, the surveyor or other person will be au-
thorized by the justices to take the materials at such time as the
magistrates shall see proper; and should the owner, &c., not ap-
pear, by himself or his agent, the justices may, upon proof on oatli
of the service of notice, make such order as they may think right
notwithstanding (b).
It is observable, that fuller powers are awarded by tlie turn-
pike act for entering upon inclosed lands, inasmuch as the sur-
veyor is not bound to make it appear before the justices, that
he cannot get sufficient materials from the waste lands, &c., as
prescribed by the highway act *.
Moreover, the trustees, &c., are empowered to contract and Purchase of
agree for the purchase or demise of lands for the purpose of dig- lands,
giiig stone, &c., for repair, and subsequently to sell the land so
bought, by public auction or tender, so that such contract or
agreement be not compulsory on any person who may be unwill-
ing to enter into it (c). A penalty of 51. is inflicted upon any Penalty for
person who shall take a^\'ay any materials got for repair of taking ma-
the road, or any materials dug, &c., from any quarry opened for ^'^'''i^'''
the purpose of getting such materials, before the surveyor of the
road, and the Avorkmen employed shall discontinue working
therein for six weeks, always excepting the owner or occupier of
private grounds, and persons authorized by such owner or occu-
pier to get materials in such quarry for his OM^n private uses, and
not for sale (d).
(a) 3 G. 4 c. 126. s. 97.
(6) Id. s. 98.
* For want of shewing this, orders of sessions were quashed as late as the year
1757. 1 Burr. 377, Rex v. Manning,
(c) 3 G. 4. c. 126. s. 100.
(rf) Id. s. 101.
112
Lands for
repositories.
Repair of Ways.
[[chap. VI.
Surveyor
not to be
concerned
in contracts.
Compensa-
tion money,
how levied.
Canal con^-
panies may
Lands may be purchased or rented as repositories for mate-
rials.
Any piece of land not exceeding in any one place six yards
square;, on the sides of the road^ may be thus purchased or rent- ,
ed as a repository for stone, gravel, &c. Two justices for the
county, &c., where the land is, to settle any dispute between the
owners, and the trustees, &c., and also to decide on the necessity
or propriety of taking the land. Such settlement to be made
upon notice, &;c., and in like manner as is directed with respect
to the getting of materials for the repair of the road (a). Fur-
ther, the trustees, &c., may purchase or rent for the same purpose
any piece of land Avithin ten miles of the Royal Exchange,
with the consent of the owner or proprietor, so as that the same
do not exceed in the whole half an acre (6).
Surveyors are absolutely prohibited from any contracts for ma-
terials, tools, &c. on their own account, or from letting any
teams, &c. as in the highway act, only the penalty is .50/. instead
of 10/., and no licence from the justices is permitted by the turn-
pike regulations. But the further punishment prescribed by the
highway act of future incapacity to act as a surveyor is not
added (c).
Sums payable under any turnpike act by the order of justices as a
compensation or satisfaction for any materials or costs, or for any
damage, spoil, or injury of any kind whatsoever done by such
trustees, &c. shall, if not paid within ten days after a demand in
writing from the clerk to the trustees, &c., or their treasurer, in
pursuance of the order of justices, and in which demand the or-
der of justices, or of the justice, shall be stated, be levied and
recovered by distress and sale of the trustees' goods, or those of
their treasurer under a warrant from such justices. The justices
are required to grant this warrant under their hands and seals, upon
application of the parties entitled to receive the money. Should
any overplus remain after payment of the compensation, and of
the costs of the hearing, and of the distress and sale, it must be
returned on demand to the trustees, &c. or their treasurer. The
treasurer is empowered to retain his own damages and expences
in consequence of the warrant, out of any monies M'hich come into
his hands by virtue of any turnpike act ((/).
Finally, the proprietors, or tlie trustees of the proprietors of
any canal, rail-way, or tram-road, on which any materials, for the
(«) 3 G. 4-, c. 12G. s. 102, and sec ante, p. 1 11, s. 97, of the statute.
(/») 4- G. A: c. 96. s. bQ.
(c) Id. s. 1.'), and sec ante, p. 1 0!t. 1,'J G. 3. c. 78. s. bO, and as to trustees,
who arc fnrliiddeii to do the like, post, Cii. VII.
{d) \G.\. v.\)b. S.7J.
VI.]
Repair of' IVaijs.
113
repaiif of turnpike roads, may ho conveyed, are authorized to lower tlieir
reduce the tolls imposed hy any act of parliament on the carriage rates for
of such materials so carried, and to appoint lower tolls, as tliey *^^''"^ge of
shall think j)roper. All such reduced tolls shall be collected and re-
coA'cred by the same persons and means, and by the same poA\ ors,
provisions, and forfeitures, as the original tolls might have been
taken, in case there shoidd not have been any reduction (a).
It was very early held, that clergymen were not privileged
from contributing to the repairs of the highways (&). An in-
closure act directed, that all great tithes should be extinguished,
that the commissioners should ascertain the net value of the
tithes, and fix a fair clear annual rent per acre in lieu of them.
It was held, that the rector was liable to the repair of the high-
ways (f ). But cxpresf! words of exemption from rates and taxes
, will relieve him from such a burthen ; and so it has been ruled
more than once in the case of an assessment to the poor-rate.
It was held also, that the king's moneyers were not exempt from
this charge (rf) ; although they pleaded their exemption under the
king's letters patent, by which the lands which were chargeable
to send men were exempted, for this grant took place before the
making of the statutes which required duty (e). A particular
township, however, or particular persons, may be exempted by
act of parliament {/)• And no serjeant, corporal, or drummer
of the militia, nor any private man, from the time of his inrol-
ment until his discharge, shall be compelled to perform any
highway duty, commonly called, statute work (g).
It may not be amiss to insert shortly in this place some of the
decided cases of exemption'^ from paving rates. Houses built on
land embanked from the Thames, pursuant to 7 G. 3, were held
exempt from, rates under 11 G. 3, for clearing the vaults and
sewers of London (/<). So also were the respective apartments
of the Masters in Chancery in Southampton Buildings (i).
Under the Foundling Hospital paving act (k) the landlord of
(rt) 3 G. 4. c. 126. s. 103.
(h) 1 Ventr. 273, Webb v. Batchelour. 2 Lev. 139, S. C. 3 Keb, 476,
S. C.
(f ) 5 B. & C. 702, Rex v. Lacy, and see 1 B. & C. 485, Rex v. Dayrell, and
other Justices of Bucks.
(it) Comb. 10, Brent v. Whitchcock.
(e) 3 Mod. 96, Brett v. Whitchot, S. C. as note (rf).
(/) 2 Term Rep. 106.
(g) 42 G. 3. c. 90. s. 174.
(h) 4 Term Rep. 4, Eddington v, Borman. And see 8 B. & C. 54, Rex v.
London Gas Light Company, where it was held, that such land was also exempt
from poor rates.
(0 3 B. & P. 129, Holford v. Copeland.
{Ic) 34 G. 3. c. 96.
Persons
claiming to
be privileged
from duty.
Exemptions
from paving
rates.
114 Repair of Ways. Qchap. vi.
a newly built house was held not liable to be rated before the
occupation of the house (o). Under a local act for lighting,
watching, &c. the streets of a township, the rates were imposed
on the tenants and occupiers of messuages, houses, warehouses,
shops, cellars, vaults, stables, coachhouses, brewhouses and other
buildings, gardens, or garden ground, and other tenements in the
township. It was held, that the trunks, pipes, &c. of a water
company did not constitute a tenement within the act, and so
were not rateable (6). And, again, upon another occasion, it was
determined, that the OAvner of markets which were kept in the
streets and were regulated by the same act, and in which articles
were exposed for sale by persons who paid a consideration for so
doing, but had no stalls fixed in the ground, was not the occupier
of a tenement within the act (e).
At a meeting of commissioners under a local act, it was de-
termined to raise a sum not exceeding 1300/. for the poor, and
not exceeding 500/. for paving the streets. The act did not
require that separate rates should be raised for the poor and for
the highways. Further, they directed, that the sum of 1300/.
should be raised by a rate of elevenpence in the pound, and the
sum of 500/. by a rate of threepence. If the rates had been col-
lected on the whole rental of the parish, they would have pro-
duced less than 1800/., but the poor rate would have raised more
than 1300/. It was held, that both these resolutions were good,
the first, as having fixed the smaller sum necessary to be raised ;
the second, as the act did not require the poor and highway rates
to be severed (c/).
The owner of stables in the parish of Marylebone, rented by the
colonel of a troop of horse for the use of the troop, and by the
king's authority, was held liable under the Marylebone parish
act(f).
Householders are not exempted from the scavengers' rate (^f)-
Repair of Private ways are to be repaired by the village or hamlet, or
private sometimes by a particular person (g). But strictly speaking,
w;iys. ^\'ilys which lead over another man's grounds are private ways, and
these, according to the general principle of law, are repairable by
the person or persons who enjoy the privilege of using them, the
burthen being imposed U])on those wlio participate in the benefit.
So that, where a person granted a right of way over his land to
(«) 4 Taunt. (j.'55, Mayor v. Knowler.
\b) I IJ. & C. G.30, ]iex V. Manciiester Water-works Company.
(c) 2 B. & C. 22(5, Kex v. Morley, bart.
(rf) 7 B. & C. .'J 14, Cortis V. Kent Water-iworks Company.
(f) 4 Torm R(!p. fi, ], per Molt, C. .f. :{ Salk. JH^.
CHAi'. VI.] lirpalr of JVai/s. 115
another, the gnintee at common law vvus bound to repair (r/).
But the grantor may ho, and, indeed, frequently is chargeable
with this duty, either by oxjiress agreement or prescription (A).
He may bind himself, or there may be evidence that he, and all
those whose estate he has in the land where the way is situate,
have been accustomed to keep it in a state of repair (c).
The parish have no concern with private roads, and it has, there-
fore, been holden, that commissioners under an enclosure act, pos-
sess no power of directing iidiabitants at large to maintain jirivate
ways set out by them- Where, therefore, a road was awarded to
be a private way for the use of several owners of land in C, and
it was ordered by commissioners, that all roads, whether public
or private, should be repaired like public highways, the court
were quite clear that an indictment could not be supported
against the parish, for they derived no benefit from the inclosure,
and had no allotment under it. The words in the act, that " the
private roads should be repaired by such person, &c., and in such
manner as the commissioners should direct," were held to mean,
such persons as were interested in the enclosure. Judgment was
given for the defendants, the inhabitants (d). So;, M'here com-
missioners under an enclosure act set out a private road and
drove-way for the benefit of nine parishes, and directed that six
of thKse parishes should maintain it, (the local act declaring, that
all private roads to be set out should be repaired at the expence
of all or any of the persons interested in the same to be en-
closed, and as the commissioners should direct,) the court asked
the prosecutor's counsel, when the case \vas called on for argu-
ment, how it could be contended, that the non-repair of such a
road was an indictable offence, it being only a private road.
The counsel answered, that this non-repair was a disobedience of
a public statute, and therefore the subject of an indictment ;
and, that as it appeared by the special verdict that no less than
250 persons were liable to the repair of the road, the difficulty
of suing so many was almost insuperable. But the court gave
judgm.ent for the defendants ; they said, that many public acts
passed yi-hich regulated private rights, without there being any
remedy by indictment for the infringement of such, that even if
it Avere true that no remedy by action existed, the consequence
would not follow that an indictment could be supported, but
that in truth the parties injured had another legal remedy (e).
{a) 3 Cru. Dig. 1 ) 5.
(b) Ibid.
(c) See Dougl. 748, 9. » Saund. 322, (a). Svc post, Ch. IX. on Pleading,
(rf) 6 Term Rep. 20, Rex v. Cottin^jhani Inliabilants.
(f ) 8 'Venn Rep. 63i, Rex v. Ricb.aids and others.
l2
116
CHAPTER VII.
Of the Improvement imd Management of Highways and Turnpike
Roads. ,
1. Widen-
ing, divert-
ing, turning,
highways.
Not to be
more than
tliirty feet
wide.
No house,
&c. to be
touched.
Satisfaction
to owners.
Wli;it done
in case of
their refuwil.
Section I. — Of the Impi-ovement of Ways.
Section II. — Of the Management of them.
Section I. — Of the Improvement of Ways.
Thp: improvement of ways, as far as relates to the repair of them,
has just been discussed at large. Various other useful amend-
ments and alterations are, however, accomplished from time to
time bv the respective persons who have power for that purpose,
and of these we propose to treat in the present section.
First, as to the widening, diverting, and turning of highways.
It is a general rule, that surveyors must make every public cart-
way leading to any market toAvn, twenty feet wide at the least,
and every public horse-way or drift-way, eight feet wide at the
least, if the ground between the fences inclosing the same will
admit of such enlargement (a). More enlarged powers for this
purpose are given by the next section of the act. For any two
or more justices of the county, &c. may order highways to be
widened and enlarged within their respective jurisdictions, if it
shall appear to them upon view that such roads are not of suf-
ficient breadth, and may be conveniently A^idened, or diverted
and turned, if they cannot be widened, and made commodious for
travellers without diverting and turning them. Such ways,
however, must not exceed thirty feet in breadth after the enlarge-
ment, and no house or building shall be pulled down, nor the
ground of any garden, park, paddock, court, or yard taken away.
Satisfaction must, nevertheless, be made to the owners or occu-
piers of land for ground which is taken for such purposes of im-
provement, whether they be private persons, or bodies politic or
corporate, and whether seised or possessed of, or interested in their
own right in such ground, or in trust for others. The stirveyor is to
make an agreement for the purchase of tlie ground under the di-
rection of the magistrates, and for the making of new ditches and
fences. The next ])rovision is, in case these persons or corpora-
tions should not be found, or should refuse to treat, or to take the
reconijieiice offered tlu'ni by the surveyor. The justices at any
general quarter-sessions for the limit where the ground is, may
(«) IS G. .">. c. 78. .'. \[k
CHAP. VII.] Improvement of Ways. ' IJ7
tlicn impunnc'l a jury of twelve disinterested men out of tlie persons
returned to serve as jurymen at tlie sessions. But prior to this,
there must be a certificate in writing signed by the justices who
made the vieAV, and fourteen days' notice must, besides, he given
by the surveyor to such owner, &c. or to the guardian, trustee,
clerk,' or agent of such owner, &c. signifying the intention of ap-
plying to the sessions. That being done, the jury impannelJed
shall, upon their oaths, assess the damages, but not at more than
forty years' purchase of the clear yearly value of the ground, to-
gether with a rccompence for the making of new ditches and
fences on the sides of the road, and also satisfaction to any
person^ &c. otherwise injured by the proposed alteration.
Then, upon payment or tender of the money so assessed, or Laud
leaving it in the hands of the clerk of the ]ieace, for the use of t<'l'-en to
the owners, &c. in case the parties cannot be found, or shall re- y ^ P"^'"-
fuse to accept it, the interest in the soil shall be divested out of '"'
them, and the ground shall be taken to be a highway. ]\Iines,
minerals, and fossils lying underneath which may be got without
breaking the surface of the way, are saved to the owner («).
There might not be money sufficient for the above purposes in
the hands of the surveyor, and, in such case, the two justices
who made the view, in case of agreement, or the sessions, if after
verdict, shall order an equal assessment upon all the occupiers of
lands, &c.* in the respective parishes, &c. where the highways
may be, and direct the money to be paid as they shall re-
spectively appoint. The money so raised shall be employed and
accounted for to such justices or to the sessions, for purchasing
the laud required, and making the ditches, &c. together Avith sa-
tisfaction as above stated. Such assessment, if not paid within
ten days after demand shall be levied by the surveyor under the
order of such, justices or of the sessionst, but it may jiot exceed
^d. in the pound ih).
The costs of these proceedings are regulated by the act ; for Costs of
if the jury give their verdict for more money than has been of- these pro-
fered by the surveyor before the application to the sessions, such ^eediugs.
surveyor must bear the costs, and pay them, cither out of tlie
monies in his hands, or the assessments to be levied, but if the
jury shall give a verdict for no more, or for less, then the persons,
&c. who have refused to accept the recompence must defray the
expences (c).
(a) See the provision as to timber, ante, p. 37.
* Lands, tenements, woods, tithes, and hereditaments.
f According to s. 68 of the act.
(6) 13G. 3. c. 78. s. 16.
(c) Id, s. 18. Wliere trustees were authorized to improve public streets, and
sell waste lands to defray tlie exiiences of so doing, and to use the money as they
should think fit for the purposes of tlie act, it was held tl'.at the defendant, a
118
Improvemenl of Ways.
I^CHAP. VII.
Footway The mode of adjudging damages where a footway is diverted
diverted. is as folloAvs. If it be diverted through the land belonging to
the same person who owned the land through which the old foot-
w^ay lay, it shall be deemed an exchange, and no satisfaction
made, unless the land used for the new footway be of greater
length and value than that used for the old. If the footway
should not be turned through the lands belonging to the same
person, then the damage occasioned by the old footway to the
lands through which it lay shall be adjudged by two indifferent
persons, (should the parties interested not agree in adjusting the
same,) the one to be named by the owner of the land, j^that is,
the land to be used for the nev/ way,] the other by the two jus-
tices. Should the nominees not agree, some third person to be
chosen by them shall adjudge it, and his determination shall be
final. The money at which the damages are assessed, is to be ap-
plied in making satisfaction to the owner of the land through
which the new footway is to be made (a).
It was once contended, that this power of widening highways
did not extend to roads repairable by private persons ratioiie
teniine. Certain surveyors, alleging that a road, which two jus-
tices had xipon view ordered to be widened, was not repairable by
the parish, but bv private persons, refused to obey such order,
and were consequently indicted. But the court considered, that
there could not exist a doubt, but that the person before liable
ratione temirce, would be still liable in the proportion he for-
merly was. And judgment was given for the crown upon de-
murrer to the plea of the defendants (b).
Turning The next circumstance attending the turning of high\vays
highways which we shall notice is, where the alteration by diverting is
with consent jnade With the conseiit of the owner ; and, in that case, the order
of owner. ^^^ y^^ made at the special sessions. Whether it be a public
highway, bridleway, or footway, any two or more justices, if upon
view it shall appear to them, that it may be diverted so as to be-
come nearer, or more commodious, may divert, turn, and stop it
up by order at some special sessions. They may sell the old
way, and purchase ground for the new, subject, however, to
the exceptions and conditions in all respects which are above
mentioned in the case of turning highways (c) ; and subject also
to the consent, under hand and seal, oj the owner of the Imid
Ihrouirh which it is proposed to nude the new line ) Cowp. MH, Hex V. IJahnc and others.
(c) Ante, p. H 5. ,
(rf) 55 G. 3. c. 68. s. 2.
CHAP. VU.2 Improvement of Ways. 119
the chapter on Extinguishment («), together with tlie appeal,
and other proceedings, by reason of an order of this nature (/;),
These last-mentioned provisions superseded the nineteentli section
of the 13 G. III. c. ']\\, the greater part of which was repealed
by them, and they were introduced for tlie ])urposes of giving
more public notice of orders concerning the diverting and stop-
ping of highways, ike. for the facilitating of appeals, and for the
more easy abolition of unnecessary ways.
Part of the nineteenth section enacted, that highways which
had been turned for more than twelve months, and acquiesced in,
and concerning which no suit or prosecution had been com-
menced sliouid be thenceforth public highways, if another high-
way were made in lieu thereof.
This clause was held to be retrospective only, and is, now,
therefore, no longer called into operation ; and, consequently,
the whole section may be laid out of our consideration, except as
it regards such roads as were made before the passing of the
13 Geo. III., upon which questions are not likely again to arise.
The court, moreover, held in the case alluded to, that the statute
34 Geo. III. c. 74. s. 7- did not extend the clause in question (t).
We have seen (c/), that notices of special sessions must be served
on the ju,stices of the division in the case of extinguishing ways.
It is only necessary to remark here, that the same rule prevails
in the case of diverting and turning them.
It must appear on the face of the order, that a sufficient assent Consent of
has been given by the owner of the land. So that where it appeared agent '"suf-
upon an enrolment of an order for diverting, that E. W. for her- fi'^"^"'-
self, and T. B. solicitor for W. S. Qhe owner] gave their assent,
under hand and seal, it was holden, that no valid agreement had
been executed by the owuer(e). Further, the consent must be given
by the owner of the estate at the time of making the order, so
that where it stated an assent by T. J. in his life-time, and that
the justices had received evidence of such assent, the order was
holden bad, because it did not appear that T. J. was alive {f).
There must not be any material variance between the order and
the form prescribed by the act of Parliament. Where, there-
fore, the act directed, that the length and breadth of the new
way should be set out, but that description was omitted in the
(fl.) Ante, p. 62.
(6) Ante, p. 62, &c.
(c) 8 Terra Rep. 133, Waite v. Smith. And see Delane's Highway Laws,
p. 9, note.
(•0 Ante, p. 64.
{e) 1 B. & C. 622, Rex v. Kent Justices. 3 D. & R. 6, Rex v. Crewe.
Semb. S. C.
(/) 1 B. & C. -21, Rex V. Kirk.
120 Improvcmeiii of Ways. \_va\av. vri.
order, the court quashed it, and held, that the parties were not
concluded by the appeal, but might take advantage of the objec-
tion as a defence to an action of trespass (a). So, again, the order
should state in what parish the way is situate (6).
Widening, The trustees, &c. may make, divert, shorten, vary, alter, and
diverting, improve the course or path of any road under their management,
&c. of turn- tendering and making satisfaction where they come upon private
pi -e roa s. gJ.Q^n(ls^ but without satisfaction where they go through waste
lands, &c., so as that such road shall not exceed sixty feet in widtli;
and also foot-paths, causeways, bridges, arches, banks, culverts,
ditches, drains, and fences on the line of the road. In order to
do this, the trustees, &c. their surveyor and workmen may enter
upon the lands aforesaid, where the improvement on such road,
path, &c. is to be made, with or without carts or carriages, and
also upon any adjoining grounds, to stake out the same according
to their discretion, without being deemed trespassers, or being
subject to any fine, &c. for so doing. Any person pulling up,
removing, or destroying any stakes or other marks used for the
purposes aforesaid, is to forfeit a sum not exceeding 5/. for every
offence (c).
Road ruin- If the turnpike road be ruinous, the trustees, &c. may cause a
ous. road to be made through the adjoining grounds (provided they do
not meddle with houses, yards, gardens, parks, paddocks, planted
Avalks or avenues to any house, or any inclosed ground plant-
ed and set apart as nurseries for trees) to be used generally as a
public highway while the old road is repairing or widening, and
till it be convenient for passengers and carriages to pass along it.
Thev are to make a reasonable recompence to the owner or oc-
cupier according to their discretion, and should any difference
arise, any two justices for the county wherein the grounds are
may determine the matter, fourteen days' notice in writing being
previously given by one party to the other {d). As soon as the
road is diverted or turned, and the new road made, it shall be in
lieu of the old road, and subject to all the provisions of the legis-
lattire concerning the old road : it shall in effect be deemed a high-
way, and shall be repaired as such (c).
Buying For these improvements, trustees are invested with the power
(«) 1 East, 64, Davison v. Gill. See 6 B. & C. G40, Rex v. Kenyon. See
3 I). ^ R. .'J6, Rex V. Casson, where there is a qiiwrc whether the order need
state ll'.i; names of the owners. It certainly is more safe and proper that it
should.
{b) See 6 B. & C. 640, Rex v. Kenyon.
(c) 9 G. 4". c. 77. s. 9, under the words in a local act, " improve or alter the
course or i)ath of the road," it was held, tiiat trustees might lower hills, and raise
hollows. 2 B. & C. 703, Boulton v. Crowther.
(rf) 3 G. 4. c. 126.6. 111.
(,) Id. s. 88.
CHAP. VII.3
. ImprotJCJuenl of Ways.
121
ment of
roads.
of purchasing lands. And for the like purpose, all bodies politic, lands for
corporate, or collegiate, corporations aggregate or sole, tenants improve-
for life or in tail, husbands, guardians, trustees, feoffees in trust,
committees, executors, administrators, and all persons whomso-
ever are empowered to contract, not only on behalf of themselves,
their heirs or successors, but also on the behalf of reversioners,
remainder-men, or persons in cx])ectancy, cestui que trusts, whe-
ther femes covert, infants, or issue unborn, lunatics, idiots, or
other persons. Femes covert, seised or interested in their o^\ n
right, and all others arc declared competent to contract for the
sale, or for satisfaction, or for damages sustained in consequence
of the alterations. These parties may sell and convey by con-
veyance, lease and release, or bargain and sale, all or any such
lands, tenements, hereditaments, and premises for such purposes,
and such contracts shall be good without fine or recovery, and a
complete bar to all estates tail, and other estates, rights, titles,
trusts, and interests whatsoever, and such persons are declared to
be indemnified for whatever they may do in pursuance ), of which
notice much has already been said (c).
Under any act for making or maintaining a turnpike road, if
any damages or charges are directed to be paid or recovered in
addition to any penalty for any offences, the amount of such da-
mages, &c., in case of dispute, shall be settled by the justice be-
fore whom the offender is convicted, and the justice, in case of
nonpayment, shall levy such damages, &c., by distress and sale
of the offender's chattels, as is prescribed by the act of 3 G. 4.,
for the levying of any penalties, &c. (d)-
(«) 13 C 3. c. 78. s. 64-. The same provisions aii
109, s, 8. for the due performance of that act also.
(b) \:i G.H. c. 78. s. 6;i.
(c) Ante, pp. 65, 118.
(rf) 4.G. 4-. c. 95. s. (JO.
enacted bv St G. S. c.
CHAP. VII.] Management of fVaijs : Tnislccs. 131
Justices of the peace for tlie county tlirough which any turn- Justices
pike road passes shall be added to and joined with the trustees, maybetrus-
&c., for making, maintaining, and re})airing the road, and shall ^^.^^ "^ '""■""
liave the same powers as though they were elected trustees («). P' ^"^ '■"'*°''*
By a subsequent act these powers are extended to the justices of
ridings, divisions, or sokes, as well as to those of counties (/;).
Certain oaths of qualiHcation Avere imposed by tlie act of 3 G.
4., but it was afterwards enacted, that nothing in the above sta-
tute should extend to require a justice to take or subscribe any
oath of qualification before he might act as trustee in the execu-
tion of any acts for making, repairing, or maintaining any turn-
pike road (c).
Justices may act, although they be personallt/ interested, unless
it be otherwise than as a trustee, comviissioner , mortgagee, as-
signee, lender of money, or holder of any security on the credit of
tolls (d).
X
When any oath or affirmation is required under any turnpike Justices to
acts, the justices of the county, &c., or the trustees, &c., of the ^''minister
road (as the case may be) and according to the several jurisdic- °^'''*-
tions given them respectively by the act, are empowered to ad-
minister such oath or affirmation (e).
Secondly, we proceed to speak of the trustees of turnpike 2. Trustees
roads. or commis-
sioners of
Trustees, before they can act, are liable to qualify, which they ^^5'^
must do in the following manner. They must take an oath, be-
fore one or more of the trustees, &c., or affirmation (if Quakers)
that they will execute their offices to the best of their judgments
[f). And if any one shall act before taking such oath, &c., ex-
cept in administering the oath, &c., (the trustees being empow-
ered to administer the same,) he shall forfeit .50/. and full costs,
to any person informing or suing for the same at Westminster,
by action of debt or on the case, bill, suit or information, wherein
no essoign, protection, or wager of law, or more than one im-
parlance shall be allowed. But no act done by such person so
neglecting the oath shall thereby be impeached or rendered
nugatory (^).
Quakers, being qualified according to the rule which Ave shall Quakers
immediately state, are not liable to this penalty, their affirmation
(a) 3 G. 4. c. 126. s. 61.
(6) 6 G. 4. c. 69.
(c) 4 G. 4. c. 95. s. 34.
(rf) 3 G. 4. c. 126. s. 61.
\e) Id. s. 146.
(/) 4^ G. 4. c. 95. s. 32, and see post Appendix, lit. Oath.
fe)s.32.
1.' 9.
Qualifica-
tions.
132
Property.
Trustees
losing
qualification
not to act.
Management of Wayx : Trustees. [^chap. vir.
being sufficient ; but they must make such affirmation, or they
will be equally subject to the forfeiture {a).
The qualilication as to property comes next. No person
chosen or appointed sliall be qualified unless he be in the actual
possession or receipt of 100/. per annum of the rents and profits
oi freehold or cop_ijhold lands, tenements, or hereditaments, above
reprizes [^deductions] in his own right, or in right of his wife,
or unless he be heir apparent of such a land owner, having 2001.
annually. Further, he must take an oath or subscribe an affirm-
ation before any two or more trustees, &c. (such trustees, &c.,
being empowered to administer, &c.) that he is so qualified (i).
But one may be a trustee, &c., of any road within ten miles of
the Royal Exchange, who may be possessed of personal pro-
perty to the amount or value of 10,000/, after the payment of
all debts (c). There is the same penalty on persons acting with-
out taking this last oath, as in the case of neglecting the former,
and it may be recovered in the same manner, and the same pro-
vision is made, that no act done should, nevertheless, be impeach-
ed for want of such last- mentioned oath (d).
The old turnpike act of 13 G. 3., fixed 40/. per annum, in lands,
or 80/. per annum, if an heir apparent, or 800/. personals, as the
qualification. The new act respected this qualification as to such
persons as were then acting by virtue of it. Therefore, whoever
was duly qualified previous to January 1st, 1823, either by that
or any other act previous to that day, and was then acting as
a trustee, &c., was permitted to continue in his office without
requalifying or taking the prescribed oath, although he were not
possessed of the amount of property required by the new act (e).
However, it is provided, generally, that if any trustee, &c.,
sUr U lose or part with his qualification under the old and new acts
respectively, by sale, assignment, bankruptcy, insolvency, or
otherwise, he shall be disqualified and incapable of acting any
longer. The trustees acting before the 1st of January, 1823, must
lose their qualification under the old acts, and such as have acted
since, must lose the increased qualification in order to their being
rendered thus incapable. The penalty for acting after being
thus disqualified is the same as for neglecting the oath, or acting
without qualifying as above, and may be recovered in like man-
ner (./•).
(a) 4 G. 4. c. 0.5. s. 33.
(h) S G. 4. c. 1 2(). s. (>2.
(r) Id. s. G3. \V(j havoscen, that tlicsc oaths of qualification do not extend to
magistrates. Ante, p. l.'JI.
(rf) 3 G. 4. c. 12«. s. 64.
(.) 4 G. 4. c. 95. a. 3b.
{/) Id. s. .%.
CHAP. VII.] Matiagonent (>/' (Vaj/s : TnisLecs.
133
No trustee appointed sliall be capable of acting as such in Trustees in-
any case where he shall be pcrsondllii interested, (except as we j-t^resteil, or
shall see hereafter.) nor durinii; the time lie shall keep a victual- f^P'"f ^
ling, or other house of j)ublic cntertaiumeut ; or shall sell wine, house, not
cider, beer, ale, spirituous, or other strong liquors by retail * ; or to act.
shall be a lessee or farmer of the tolls on any road. The penalty
for disobeying this provision is the same as above, so often advert-
ed to, and may be recovered in the same manner («). Provided, Exceptions.
however, that no mortgagee or assignee of any mortgage or other
security, or any leiuler of money ujxm the credit of the tolls, or
receiving interest thereout for the same, sliall be deemed on that
account to be unqualified (/;). And a justice may act although he
be such mortgagee, &c. as we have seen (c).
Trustees
not to hold
places of
profit, or be
concerned
in contracts,
&c.
No trustee, &c. may enjoy any office or place of profit under any
act in execution of which he shall have been appointed, or shall act
as such trustee, &c. ; nor may he have anv share or interest in,
or be in any manner directly or indirectly concerned in any con-
tract or barsrain for makinig, or alter-
ing, or for the use of the road for \\'hich he shall act as a trustee.
The other exccptiitns mentioned above are reenacted (c). So
tliat by this new provision the trustee may himself join in the
order.
Trustees
having
shares in
canal com-
panies '.vliicii
There is another exception. A proprietor, or holder of shares
in any canal or railway company, whicli shall contract with the
trustees, &c. of the road for which such ])r()priet<)r shall act as a
trustee for the conveyance of any materials for the repair of the
(a) 5 B. & C. )S5, Towsey v. Wiiitc.
(6) 3 G. 4-. c. 12G. s. 65.
(f) 7 & H G. •!.. c. al. s. 1.
CHAP, vii.] Management of flai/s : Trustees. 135
roiul, is excepted, and declared not liable to the forfeiture of convey ma-
100/. above mentioned {a). terials, ex-
cepted.
The mode of appointing- new trustees is pointed out. F(tr Appoint-
should any trustee die, or become disqualified by baidvruptcy, mentofnew
insolvency, or otherwise, or, by writinj; under his haiul, refuse to trustees.
act, (justices always excepted,) the other trustees, (>.
' Trustees of any roatl within live miles of the Royal Excliaiige may expend
twenty shillings per diem, 4 G. 4. c. 05. s. 39, at the end.
136
Managcmenl uf' Jl^aj^s : Trustees. {[^chap. vu.
Meetings
on emergen-
cies.
General
annual
meeting.
Default of
attendance.
vocation or alteration shall be agreed to be made by a greater
number of trustees, &c. than concurred in the making of the
order (a).
Should it, however, be deemed necessary that the trustees, &c.
should meet before the time of adjournment, any two or more
trustees (or the clerk, by an order in writing, signed by any two
or more) may give notice of such earlier meeting by advertise-
ment in some newspaper circulated in the neighbt'urhood of the
road, and affixed on all the turnpike gates on the road, expressing
the time, place, and purpose of such earlier meeting, (such time
not being less than fourteen days from the publication of the
notic-e,) and ail the orders made at this last meeting shall be
valid, provided that no other business than that specirted in the
notice be transacted there (i).
A general annual meeting is directed to be holden in the
months of April, September, or October, on a day to be appointed
by the trustees, &c. or any three of them. Twenty-one days'
notice of this meeting must, however, be given by inserting the
same in some newspaper usually circulating in the county where
the road or roads lie, the said meeting to be called, or known as,
" the general annual meeting of the trustees or commissioners."
At such meeting a chairman is to be elected, the accounts are to be
audited, and the state of the roads reported (c).
Should a sufficient number of the trustees, &c. not meet on the
day appointed by any act for their first meeting, or should such
number not meet on the day appointed by adjournment for their
meeting, so that the intent of the act might thereby be frustrated,
as many trustees, &c. as shall meet, or the major part, or their
clerk, in case no trustee, &c. be present, shall cause notice in
writing to be affixed on all the turnpike gates on the road, or, if
no turnpike gate be erected, in the most conspicuous place in one
of the principal towns or places nearest to wliich the road lies, and,
also, to be inserted in some public newspaper circulated in the
county in whicli the road is situate, ten days at least before the in-
tended meeting, and appointing such trustee, &c. to meet at the
place where the preceding meeting was appointed to have been held.
vSuch trustees, &c. meeting pursuant to the last-mentioned notice
are to carry the act or acts into execution in the same manner as if
no neglect laad happened {d).
And whereas it has happened, that trustees, &a. have not
been able to meet on the day appointed by the act, by reason
(a) 4. G. i. c. 95. .<;. 30.
(6) Id. s, 41.
(r) :J G. 4.. c. 1S6. s. 69.
(d) Id. s. 70,
ciiAi'. VII.] Management of Ways : Trustees. 1.37
that the day appointed for the meeting has been antecedent to
the passing of such act ; in such case three or more of the trus-
tees, &c. may meet at the place appointed for the first meeting
on the 14th day after the passing of any act, and such meeting
shall be good to all intents and purposes whatsoever («). And,
again, if trustees have holden their annual meetings under any act
of parliament at other times of the year than in the months of
April, September, or October, such meetings may be continued
as directed by the act under which they may be appointed, in-
stead of being holden in April, &c. (6).
Lastly, all orders and proceedings of the trustees, &c. together Orders, &c.
with the names of the trustees, &c. present at every meeting, shall ^° ^^ ^^V^
be entered in a book kept by the clerk to the trustees for that '" ^ "" '
purpose, and shall be signed by the cliairman of the meeting at which
such be from time to time had. The book shall be open at all
seasonable times to the inspection of any trustee, &c. without fee
or reward, and such orders, &c. so entered and signed by the chair-
man as aforesaid shall be deemed to be original orders, &c. (f).
And, by a very recent statute, all books kept for registering
mortgages, or assignments, and all entries therein, and all books
containing the accounts and proceecHngs of the trustees in the
execution of any turnpike act, and made evidence thereby, shall
be admitted in evidence in courts, and by all judges, justices, and
others, without proving the facts therein contained, unless such
facts, or any of them, shall be first controverted, notwithstand-
ing any former acts, under the provisions of Vvhich such books
may have been originally kept, may be repealed ; and all such
books shall be preserved by the clerk of the trustees, and be open
to their inspection at all seasonable times, and also to the in-
spection of the creditors of the tolls, without fee or reward. The
trustees, &c. are to be permitted to take copies, &c. without pay-
ment ; and the clerk is to forfeit 51. on refusal to allow the trus-
tees, &c. such inspection {d).-
Having mentioned books, it may be added, that the trustees. Books of
&c. are bound to order a book to be kept by their clerk, who account,
must enter true and regular accounts of the receipts and payments
on the account of the road, and of the several items. This book
shall be ojien to the inspection of the trustees, ike. at all season-
able times, or to any creditors of the tolls, without fee or reward.
The trustees or creditors may take copies or extracts from the
book without paying, and the book shall be produced by the
clerk at all meetings of the trustees, &c. {c)
(a) 4 G. 4. c. 35.
(b) 4 G. 4. c. 93. s. 42.
(f) 3 G. 4. c. 126. s. 'i'2.
(d) 9 G. 4. c. 77. s. 2.
(e) S G. 4. c. I2ii. s. 7^.
138
Management uf JVai/s : Trustee.^. [^chap. vii.
Penalty on
clerk.
Accounts t
be audited
at general
annual
nieetin.
CHAP. VI 1.^ Management oj Ways : 'Trustees.
139
geiiorally to
account
when re-
•juirwl.
amiiied, audited, and signed, the trustees must cause a sufficient
number of copies of such statements to be printed ; and must direct
tlieir clerk to transmit a copy to each acting trustee, &.c. who has
duly qualified himself to act as such trustee, &c. {a).
Indeed, all officers of the road must account upon demand. Officers of
The act declares, that they shall, from time to time, wlien re- ^'"^ ™'"^
quired by the trustees, &c. deliver to such trustees, &c. or to
their appointees, true, exact, and perfect accounts, in Avriting,
under their hands, of all receipts and disbursements, and for
what purposes. They must also deliver the proper voucliers for
their payments, and pay over monies remaining in tlieir hands to
the trustees, or their appointees, and not otherwise, within such
time as such trustees, &c. may appoint (b).
Should any such officer or person refuse or neglect to produce Proceedings
or deliver up such accounts, and vouchers, or pay the money due "!'°" "'^S-
on such account within the time given, or in the proper manner, '^'^^'
or make default in delivering up to the trustees, &c. or persons
appointed by them, Avithin ten days after being required, all the
books, papers, or writings in his custody or power, relating to the
execution of any act — any justice of the county, &c. where the
road is, shall, on complaint by or on behalf of the trustees, &c-
summon, by warrant, under his hand and seal, such officer, &c.
before him, and hear and determine the matter, whether the
party appear or not, and settle the accounts if produced.
JMoreover, if, on confession of such officer, &c., or upon the oath
of any witness, (such justice being empowered to administer the
oath without fee or reward,) or upon inspection of the accounts,
if produced, it shall appear to the justice, that any of the money
collected or received shall be in the hands of such officer, Sec.
the justice shall, on non-payment, by warrant under his hand
and seal, cause the money to be levied by distress, &c. ; and if
no goods be found sufficient to answer the sum required, and the
costs of distress ; or, if the party shall not appear, without suffi-
cient reason of absence ; or, if appearing, shall refuse or neglect
to give an account of the receipts and payments, or to produce and
deliver up the vouchers, or the books, &c. ; then the justice shall
commit such officer by his warrant, under hand and seal, to the
common gaol or house of correction of the county where the road
is. In case of commitment for non-payment of money received,
the offijnder shall remain there without bail or mainprize until he
shall have accounted for and paid the full amount, or compounded
with the trustees, and shall have paid the composition according
to their appointment (such trustees, &c. are declared capable of
compounding) ; but in case of a committal for not delivering up
books, &c. then, until the delivery of such books, &c. or until he
(«) 3 G. I. c. 126. s. 8(1.
(6) t G. k t. 95. s. r/.
J46 Management of Ways : Trustees. [chap. vii.
shall have made satisfaction in respect thereof to the trustees,
&c. But he shall not be detained, if commiUed for iva?it of
sufficient distress, for more than six calendar months («).
And, by a late act, all persons who may be, or shall have been
employed, or M'ho shall have received any tolls or other money on
account of or for the purposes of any turnpike act expired or
repealed, or who may have or shall have had in their custody or
possession any money, books, papers, writings, or other things
relating to any such road, shall account for and pay and deliver
over the same to the trustees for executing any subsequent act,
in like manner, and under the same penalties, as collectors, &c.
receiving money under the turnpike acts, are required to pay or
account (6). And again, every constable, headborough, or tith-
ino- man, refusing or neglecting to put turnpike acts into execu-
tion *, or account for or deliver any forfeiture, &c. ; and every sur-
veyor of any turnpike road, and every toll collector, and all other per-
sons employed, or to be employed, by any trustees, &c. and receiving
salaries or rewards, M'ho shall neglect wilfully for one week after
any offence committed within their knowledge to lay such in-
formation on oath before a justice of the limit, shall, upon due
information on oath before a justice as aforesaid, forfeit 5/. for
every neglect (c). Lastly, any trustee, &c. or their clerk, col-
lectors, surveyors, or other officers, together with such other per-
sons as may be called to assist, may, without warrant or other
authority than the act, seize and detain any unknown person
who has committed an offence, and take him before a justice for
the county, &c. near to the place where the offence has been com-
mitted, or the offender has been seized and apprehended. Such
justice to proceed and act with respect to such offender according
to the provisions of the respective acts ((/).
Officers are These officers are to be appointed by the trustees. The ap-
to be ap- pointment is to be in writing, and the act declares that they shall
pointed by g^^ appoint the collector of tolls, the clerk, the treasurer, the sur-
trustees.
(n) 4 G. 4. c. 95. s. 47.
(b) 9 G. 4. c. 77. s. 14. Vide supra as to the manner of doing this, and the
penalties.
" The words of the act referred to are " this act," but we have used the general
expression of turnpike acts, because the subse(juent statutes confirm the powers
of the act of 1822, and extend them to the provisions respectively contained
in such subsequent acts. See 4 G. 4. c. 95. s. 88. 7 & 8 G. 4. c. 24. s. 20.
9 G. 4. c. 77. s. 19. This observation applies to many other general expres-
sions of the same kind, inasmuch as the statutes just referred to confirm the
powers of the act of 1822, and of other acts respectively in all matters not therein
altered or repealed. It is, moreover, declared by 9 G. 4. c. 77. s. 19, that all the
powers, &c. of the act shall extend to every local turnpike act, and be as eflectual
as if reenaeled in the body of such act, and that the act of 1822, &c. shall not
be recital in such act, save as to such powers, &c. which nny be referred to for
the purpose of being varied, altered, or repealed.
(,,) .•} G. 4. c. I2(i. s. 1S(>.
{d) ;} G. 4. c. 126. s. 140.
CHAP. VI 1-3 Management of Ways : Trustees. 141
veyor, and such other officers as tlioy may think necessary («) * Treasurer
only they may not either continue or apj)oint their clerk, or his a"'' ^-lerk to
partner, or any clerk, or other person, in the employ of their ' '*<^P'i''3te
clerk or his partner, to be their treasurer^ or vice versa, and a ' " '
severe penalty is inilicted on any person accepting" both those
offices at the same time. For the penalty of 100/. is awarded against
any one guilty of that offence, or against any partner of the
clerk, or against any clerk or person in the employment of the
clerk to the trustees, whether he accept the office of treasurer, or
deputy, or if he in any way officiate ; and it is also awarded against
the partner of any treasurer, or the treasurer's clerk or servant,
who shall accept the office of clerk, or act as deputy, or in any
manner officiate ; and, lastly, against any treasurer who shall
hold any place of profit or trust under the trustees, other than that
of treasurer. Such penalty is to belong to any person who will sue
for the same, and to be recovered with full costs, at Westminster,
by action of debt, or on the case, or by bill, suit, or information^
wherein no essoign, &c. shall be allowed (h).
And, moreover, the trustees may not continue or appoint their Surveyor
clerk, or his partner, &c. to be their surveijor, or vice versa. If an'l ''^t^rk to
the surveyor accept any other office of profit or trust than that of separate
surveyor, he shall forfeit 50/. to be recovered as directed in the last '
section referred to (c). The trustees, however, may remove their
officers, and may appoint others on the removal, death, or re-
signation of any officer, and, further, they may allow and pay Salary.
them, or their assistants, such salaries, rewards, and allowances,
for their attendance, &c. out of monies arising on the roads, as
they may deem reasonable (e
appointed, and he shall be entitled to the last-mentioned for-
feitures, and to some further allowance by way of salary, (to be paid
as the surveyor's salary,) if the justices shall think such salary ne-
cessary, and shall order it. The assistant surveyor appointed for
one year is not to be compelled to serve again for three years, with-
out his consent (rf).
If a salaried surveyor, being a non-resident, should take the
office, the churchwarden or overseer, or any principal inhabitant
of the parish, &c. may require him, at the time of his appoint-
ment, or within fourteen days afterwards, to give a bond upon
(a) 7 Term Rep. 169, Rex v. Baldwin and others. See post, in this chapter,
that no certiorari will lie to remove the appointment of surveyors.
(6) 4 East, 142, Rex v. Denbighshire Justices,
(r) See ante, pp. 104, 10(i, 108.
(f/) 13 G. 3. C.78. s. 2.
Salary, how
raised.
Assistant
surveyor.
Bond b}'
surveyor,
when to be
taken.
146
Management of Ways : Surveyor. []chap. vii.
Death, &c.
of surveyor.
Bristol ex-
cepted.
Printed a\>-
stractsof act
to be given
to sur-
veyors.
paper, without a stamp, to some proper person within the parish,
&c., to be nominated by the justices, with sufficient surety to
account for the money which shall come to his hands as surveyor,
such bond to be good and etfectual in law («).
In case of a surveyor's death, or other incapacity for his office
before the next special sessions for appointing such officer, the jus-
tices as aforesaid, or any two of them, may appoint another person
at some special sessions, to act until the annual appointment,
and may allow the successor the same salary as the deceased sur-
veyor, if he had one, in proportion to the time he shall serve the
office. Should the justices appoint more than one person to be
surA'eyors of any parish, &c. all such persons shall be compre-
hended under the word surveyor, in every part of the act (b).
There is one other provision as to the appointment of survey-
ors, and it is where two parts out of three of those so to be as-
sembled in any parish, &c. for the nomination of surveyors as
aforesaid, shall agree in the choice of any particular person of
skill and experience to serve the office, and in the settling of a
certain salary for his trouble, and shall return the name of that
person, together with the list, to the justices at their annual spe-
cial sessions as aforesaid. In that case, the justices, if they think
proper, may appoint that person, and allow him the salary men-
tioned in the agreement, which shall be raised and paid in the
same manner as the salaries mentioned above (c). However,
justices of cities, to)ims corporate, or boroughs, may not fix nor al-
low any salary for a surveyor unless it be such as has been set-
tled and agreed upon by two parts out of three of the persons as-
sembled in the parishes, &c. within such cities, &c. (d).
Nothing in the act before us as to the making and returning
lists, or the appointment of surveyors, nor the repeal of part of
an act made in the third year of King William and Queen
Mary relating to such surveyors, shall in any way extend to the
city of Bristol, but the several acts of parliament passed previous
to this act \\\l\\ regard to surveyors of highways within that city,
and cleansing, paving, &c. there^ shall remain in full force (. lilt.
(d) Id. 8. 55.
(f) IJ. I. 8«.
CHAP, vu.] Management of Ways : Surueyof.. M\
charge directed to be given *. They were, moreover, directed, for
the siiine end, to deliver to eaeli surveyor at the same special sessions
held in the year 177'5 [the same year in which the act passed J,
one other printed al)stract for the use of the parish, ike, which
last-mentioned abstract the surveyor was to fix on the church or
chapel door, or other public place on the Sunday after receiving
it. The surveyors are to pay (3^/. to each of the justices' clerks
for such abstracts (a).
As we have before observed, much of the surveyor's duty has Duty of
been already noticed. Ot'ner general duties, however, are pre- surveyor,
scribed by act of parliament. Thus, by the highway act, sur-
veyors, when they think proper, shall view all the common high-
ways, trunks, tunnels, plats, hedges, ditches, banks, bridges,
causeways, and pavements within the parish, &c., and if they ob-
serve any nuisance f, encroachments, obstructions or annoyances,
contrary to the act, and prejudicial to the road, they shall give
notice to the offenders as soon as may be, either personally or in
writing left at the usual place of abode of such person, and spe-
cifying the particulars of the oifence. Should such nuisances,
&c. not be removed, and the ditches, drains, &c. effectually
scoured, &c., and the trunks, tunnels, &c. made and laid, and
the hedges properly cut and pruned within twenty days after the
notice, the surveyors are empowered to remove the nuisances,
and do all those things for the improvement of the highways
which ought to have been done as aforesaid. The person making
default in cleansing the ditches &c., or cutting the liedges, after
notice given, shall forfeit \d. for CA^ery foot in length which has
been neglected, and the surveyors shall be reimbursed their
charges and expences in removing the nuisances, &c., and making
the other improvements and cleansings by the person who
ought to have done them, over and above the forfeiture. Should
the defaulter refuse to pay the surveyor such expences, and also
the said forfeiture of \d. per foot, the surveyor shall apply to a
justice, and after making oath of the notice given, and of the
work being done in manner aforesaid, and of the expences, such
surveyor shall be repaid by such defaulter all his reasonable
charges as alloAA'ed by the magistrate, or in default of payment,
the same shall be levied like offcher penalties and forfeitures
under the act (6).
* See ante, p. 196.
(a) 13 G. 3. c. 78. s. 71.
f Tlie surveyor of the pavements in the south west district of St. Pancras ex-
hibited an information against a hackney coachman for taking his stand in
Howland Street, and plying there so as to obstruct the carriage way. The com-
missioners of pavement were authorized by act of parliament to direct and regulate
the stands of hackney coaches within the district. It was iiekl, that the word
" direct," meant appoint, and that they I'.ad power to order the removal of the
hackney coach stand. 6 B. & C. 23, Rex v. Rawlinson, Esq.
(6) 13 G. 3. c. 78. s. 12, ante, p. 104.
l2
148
l^lanagement (if Ways : Surveyor. []chap. vii.
Duty of
assistant
surveyor.
Surveyor of
theturnpiko.
The assistant surveyor must assist the surveyor to the best ot
his skill and judgment whenever requested. He must aid iii
calling in and attending the performance of the statute duty, in
collecting the compositions, iines, penalties, and forfeitures, in
making and collecting the assessments, in making out and
serving the notices authorized by the act, and in all other reason-
able matters required of him by the surveyor in the execution of
his office under the act. The assistant, moreover, must truly
account with, and pay over to the surveyor, or his order, all the
money which shall come to his hands as assistant, or forfeit
double the value of his receipts. Wilful neglect or default on
the part of the assistant in the performance of any duty required
by the act, is punishable by a forfeiture of a sum not more than
5/. nor less than 40*., at the discretion of the justice or justices
of the limit within which the assistant has been appointed. The
surveyor is, further, required to send orders in writing upon such
assistant for the payment of all sums due to any person for work
or materials under the act, which amount to 40*. or upwards,
and the surveyor shall not be responsible for any sum received
by the assistant, which shall not be actually paid to him the said
surveyor, or to his order, as we have said above (a). The sur-
veyor himself shall forfeit for any neglect of duty which is not
otherwise provided against and punished by the act, a sum not
exceeding 5/., nor less than lO*., at the discretion of the justice
or justices having jurisdiction therein (i).
Of the surveyor of the turnpike-road, his appointment,
liabilities, and duties, we have spoken in a recent page ; and
in tiie chapter on the repair of roads, this officer was mentioned
as having powers and authorities for the maintenance of the
road. We have also been made acquainted, that the surveyor
and clerk must not be the same person. For the better enforcing
of the turnpike acts, however, the sTirveyor has an especial duty
to perform regarding weighing machines ; for he must make con-
venient places for turning waggons, &c., upon every road where
a weighing machine is erected, within 300 yards of such toll-
gate, on each side thereof, if the ground will admit of it. If
the driver of any such waggon, &'c., being requested to return
with his carriage to the engine, shall neglect or refuse so to do,
he shall incur a forfeiture not exceeding 5/. ; and any peace
officer or other person being present, may, after such neglect and
refusal, drive and take back the carriage in order to be weighed (c).
The surveyor is not personally answerable to the labourers, they
must loo]{ to the commissioners, or the treasurer {d).
(a) 13 G. 3. c. 78. s. 4.
(6) Id. s. 51.
(r) 3 G. i. r. 126. s. 24.
(r/) 1 Sir Will. ]}1. 670, Pccliin v. Pawlcy. But commissioners under an act
for paving tlic streets of St. Aibau's, were held liable in the first instance, although
CHAP. VII.] Managcmcnl uJlVciys : Surveyor. I49
The accounts of the turnpike surveyor have been already men- Accounts of
tioned ; those of the surveyor of highways are examined into surveyor.
with great strictness, as we shall proceed to shew.
The surveyor of highways must coll ^ct the several assessments. Monies,
forfeitures, penalties, sums of money, and compositions, within the
year for which he is appointed surveyor, and must fairlv enter a
true account of such money as shall come to his hands, or those
of his assistant, in a book kept for the purpose. The book must
shew to whom, and on what occasion he has paid the same, and
there must also be a list of all debts due in respect of the pay-
ments, compositions, &c., to be collected. There must also be Tools.
an account of all tools, materials, implements, and other things
provided by order of the inhabitants at a vestry or other public
meeting for the repair of the highways, at the public expcnce of
such parish, &c. The surveyor must produce these books, and Books pro-
the assessments made within the year, to the inhabitants of the (luced.
parish, &c., at a vestry or other public meeting held for the pur-
pose, within fifteen days before the Michaelmas special sessions,
so that the account, assessments, and lists, may be inspected by
the inhabitants. The books, &c. having been produced, the sur- Surveyor to
veyor shall take them to some justice of tlie limit where the verify iiis
parish, &c. may be, and shall verify his account, upon oath, if re- accounts.
quired, some day after the above-mentioned meeting, but before
the sessions ; the day and liour to be fixed by the inhabitants at
their meeting as aforesaid. If the justice find the account cor-
rect, he may allow it, or if he find cause, he may postpone it till
the sessions, and then it may be allowed at the sessions, after the
parts objected to by the justice shall have been verified and ex-
plained by proper evidence, to the satisfaction of the justices at
sessions. But in case any article contained in the accounts shall Disallow-
not be proved to the satisfaction of the magistrates, they may ^"ce.
disallow the same. The accounts being settled, and allowed or
disallowed, the books and assessments shall be transmitted to the
churchwarden, or overseer, or some principal inhabitant if the
place be extra-parochial, to be kept for the use of the parish,
&c. (a)
Moreover, the surveyor must give a duplicate of each book Surveyor to
and account, together with all sums of money remaining in his deliver du-
hands, and all tools, materials, &c., to the succeeding surveyor ; P f »
or if no new surveyor be appointed, and he be continued sur- ^^ succeed-
veyor, then he must retain and account for them in his next ac- ino- survey-
count. The succeeding surveyor is required to recover and col- or.
lect all debts, with as full powers on the subject as his prede-
cessor had (i).
it was said, that they might recompense themselves out of the treasurer's funds in
matters relating to their public capacity. 8 East, 41, Rex v. Kingston. And
see Hardr. 203, Meriel v. Wymonsold.
(o) 13 G. 3. c. 78. s. 4S.
(/>) Ibid.
350
Management of Ways : Surveyor. Qchap. vii.
Penalty on If, however, the surveyor should neglect to provide the books,
surveyor or to enter the accounts and lists, or to deliver the books, toge-
making de- ^.j-^gj. y^,\i\^ t}jg duplicate, and the assessments, tools, &c. in man-
ner aforesaid, he incurs a penalty not exceeding 5/. nor less than
AOs. And should he make default in paying or accounting for
money remaining in his hands A^'ithin the time and according to
the directions above mentioned, he incurs a forfeiture of double
the value of such residue as the justice shall adjudge to be in his
hands (o).
On death of Should the surveyor die before such accounts and lists are
surveyor, made out, or the requisites of the act are complied with, the ex-
ecutors must perform the duty of their testator in the same man-
ner, and under the same penalty {h).
his exe-
cutors to
account.
Fees to jus- The fee to the clerk of the magistrates for the printed abstract
tices' clerk, has been already mentioned. This section awards to the clerk,
s. d.
For the appointment and charge 1 0*
For the bond 6
For the oath to be adsainistered on verifying accounts 1
And if any person shall receive a greater fee he shall forfeit
10/. (c).
It is indispensable, that these accounts should be verified be-
fore a justice, for the special sessions have no original jurisdic-
tion. Where, therefore, instead of carrying his accounts to the
nearest magistrate, as he was directed by a resolution of the ves-
try, the surveyor Avent before the special sessions, where they
were allowed, the Court of King's Bench quashed the order of
petty sessions for this allowance, for the reference ordained by the
act is merely upon those parts of the account which are not allowed
by the single justice ; the allowance, consequently, was not in pur-
suance of the act [d). Notwithstanding this decision, it was con-
tended in a subsequent case, that the exhibitingaccounts before one
justice was merely a matter of form. A surveyor attended with his
accounts, but lu^glccted to bring the assessments, upon which the
magistrates, considering that he could not investigate the ac-
counts without the assessments, desired the surveyor to attend
with all the necessary documents at the petty sessions f. There
(a) l.'J G. 3. c, 78. s. 48.
{b) Ibid.
■* That is, besides ihe sum of 1.?. for the printed abstracts.
(r) l.S G. 3. c. 78. s. 4-8. Surveyors, aiipoiiited under tlie old act of 7 G. 3,
were also directed to acco\int, but no ai)])ointnient of a surveyor was to be made
under such old act. It was repealed by tiic statute before us. 13 G. 3. c. 78. s.
84.
{d) b B. h C. 8ir,, Ilex v. Somcrsclsliirc .Justices. 8 D. & R. 733, S. C.
f " Consent cannot give jurisdiction to a court that has none." 2 Burr. 746,
CHAP. VII.] Maiiagement of Ways : Collectors. 151
the accounts were allowed, but the order was quashed upon mov-
ing it into the King's Bench by certiorari, the statute not having
been complied \Aith, which requires that the accounts shall be exhi-
bited before one jnstice in such a manner as to enable him to exer-
cise his judgment uj)on them (rt). When we come to speak of ap-
peals in a future ])art of this chapter, we shall find, that tlie
judgments of the justice, and of the petty sessions arc conclusive,
and that no original application can be made to the quarter
sessions upon that subject *.
clerks of
turnpike
trusts.
Wc liave little to say concerning the treasurers and clerks 4. Trea-
of turnpike trusts, besides that which has been stated already in surers and
difi'erent parts of the chapter. Although, for the sake of brevity,
they are classed together in this place, their respective offices
may not unite in the same person, as we have seen, under severe
penalties. The treasurer of a turn|)ike trust, however, must give
security. The trustees are required to take sufficient security
from every treasurer whom they appoint for the due and faithful
execution of his office ; it is at their discretion to take such
security from any other officer (/;).
The surveyor is the collector of rates for the maintenance of 5. Col-
highways, the officer who takes the toll on turnpike roads is call- lectors of
ed the collector, and is invested with various powers to enforce *"^^'
the execution of his duty. These collectors are appointed by the
trustees, as we have seen, and upon the death, incapacity, re- Death, &c.
fusal, neglect, or absconding of any one of them, any two trus- °'^ collector.
tees, &c. though not assembled at any meeting, may, by writing
under their hands, appoint a person to continue until the next
meeting of trustees, &c. Such newly appointed collector is to
have the same powers as his predecessor, and to be answerable
like him in all respects. Should any collector, who has been
by Foster, J. So that, before the highway act, where the quarter sessions had ex-
ercised a jurisdiction over the surveyor's accounts, the Court of Kujg's Bench
quashed tlieir order. 2 Burr. 743, Rex v. Hartshorn.
(a) 6 B. & C. 152, Hex v. North Riding of Yoikshire Justices.
* Post. For the punishment of persons assaulting surveyors in the execution
of their duty, see post, p. 134.
(b) 3 G. 4. c. 1)26. s. 76. A banker is in the nature of a treasurer. Where
it was enacted, that if any treasurer, collector, officer, or other person appointed
by the commissioners of a local paving act should become bankrupt before he
might have satisfied all the monies received by him for or an account of the com-
missioners, the assignees should pay in full all tlie money due, in preference to all
debts, except those of the crov;n : it was held, that bankers were within the words
" other person," as being in the nature of treasurers, and that as the statute did
not require their appointment to be in writing, the employment was equivalent to
an appointment. 5 B. &. C. til 1, Frost v Bolland. Where also the same bankers
had sold certain exchequer bills, the assignees were equally lield answerable in full,
for the words of the act included all monies received for or on account of the com-
missioners, and were not limited to monies received by virtue of rates and assess-
ments. 5 B. ^. C. 022, Dougan v. Bolland,
152
Management of fVai/s : Collectors. [chap. vij.
Refusal to
give up pos-
session of
toll-house.
Collector
absconding.
Collector
must put up
his name.
Offences by
collectors,
how punish-
ed.
discharged from his office, or the wife, widow, child, family, or
representative of any collector deceased, or who has absconded, or
who has neglected his duty, or has been discharged, or any other
person, having possession of any toll-house, buildings, or Aveighing-
machine, neglect or refuse to deliver up such possession for three
days after demand made, and notice given in writing for that pur-
pose by any two or more trustees. Sec, or their clerk or treasurer ;
any justice of the county, &c. where such toll-house may be, may,
by warrant under hand and seal, order any constable or peace officer
for the same county, &c. to enter such house, &c. with such as-
sistance as may be necessary, in the day-time, and remove the
}>erson found therein, together with the goods, and to put the
trustees, &c. or their officers, in possession (a).
Should any collector, or other person acting as such, incur a
penalty, and then abscond, any justice, before whom the party
may have been convicted, if the collector abscond after con-
viction, may order and adjudge that the penalty shall be paid
by the lessee or farmer of the tolls under whom the collector acts,
and the forfeiture shall be levied on the lessee, and applied like
other penalties. If the collector have absconded prior to convic-
tion, any justice acting for the county may make a similar adju-
dication upon an examination of the circumstances, and upon as-
certaining from witnesses that the offence has been commit-
ted (6).
Every toll collector must put up his name on some conspicuous
part of the front of his toll-house, i. e. his christian and sur-
names, painted in black on a board with a Avhite ground, each
letter to be two inches in length, and of a breadth in proportion.
Such board is to remain there during all the time of the collec-
tor's duty at such toll-house. A neglect respecting the board as
aforesaid is punishable by a forfeiture of 5/. (c)
The following offiinces by collectors are also liable to the
same penalty. Demanding and taking a greater or less toll
than is just from any person, or any toll from one exempted from
payment of toll, and who shall claim such exemption. Re-
fusing to permit any person to read or hindering him from read-
ing the inscription on the board. Refusing to tell his christian
and surname to any person demanding the same on being paid
the toll, or giving a false name in answer to such a demand.
Refusing or omitting to give a ticket denoting the payment of
the toll, and specifying the toll-gate wliere it has been delivered,
t<»getlicr with the toll-gates (if any) freed by such payment.
Unnecessarily detaining or wilfully obstructing any passenger
(a) i. G. 4. c. !)5. .s. if).
(6) .3 G. 4.. c. 126. s. 54.
(c) i G. i. c. 95. s. 80.
(•HAP. vn.3 Management of IVai/s : CoUeclors.
153
from passing through his gate, the legal toll being paid or ten-
dered. IVIaking use of any scurrilous language to any trustee,
&c., traveller, or passenger (c/).
It is expressly declared, however, that the proceeding against Wlien not
a collector for asking and taking an illegal toll shall be by prosccu- pmiisliable
tion before a justice, and not by an indictment for extortion, or ^' '"'"'-■'^-
by any other course whatever (J)).
Tiie trustees of any turnpike road, or the collector of tolls un- Tolls how
der any local act may demand and take every day (such day for t" l^e col-
the purposes of all local turnpike acts being computed from ^*^^^'^^-
twelve o'clock at night to twelve o'clock of the next succeeding
night) the tolls mentioned in any such act, at the respective toll-
gates, turnpikes, side-bars, and chains, in, tipoti, across, or 07i the
sides of' any turnpike road. Such tolls are to be demanded and
taken before any horses, cattle, or carriage can be permitted to
pass through. The tolls so levied are vested in the trustees of
the local act for the purposes thereby directed (c).
Collectors
how to en-
force pay-
ment of
tolls.
The collector has power to distrain any thing upon which the
toll is imposed in case of a refusal to pay. On a demand being
made, if the party applied to neglect or refuse to pay, the col-
lector may, alone, or with assistance, if he shall think it neces-
sary, seize and distrain any horse, beast, cattle, carriage, or
other thing, in respect of which toll is imposed, together with
their bridles, saddles, gears, harness, or accoutrements, (except
the bridled reins of any horse or beast separate from the horse or
beast,) or any carriage in respect of the horses or cattle drawing
the carriage on which the toll is imposed, or any of the goods or
chattels of the person so refusing to pay. Then, if the toll, to-
gether with the reasonable charges of the seizure and distress,
shall not be paid within four days next afterwards, the person
distraining may sell the horse, &c., or a sufficient part thereof,
returning the overplus (if any) and what may remain unsold, to
the owner, upon demand, such tolls and charges beintj first de-
ducted from the money produced by the sale (rf).
Collectors are compelled to attend to the weighing of carriages. Collectors
For the keeper of every toll-gate or bar, where there is any
weighing engine, or other person appointed by the trustees, &c.,
or by their lessee to the care of such engine, is required to weigh
all waggons, carts, and carriages liable to be weighed, which shall
pass loaded through such gates or bars, and which he shall be-
lieve to carry greater weights than are allowed to pass without
payment of an additional toll. If any collector, &c. shall permit
(n) 4 G. 4. c. 95. s. 30.
(6) Id. s. 50.
(c) 9 G. 4. c. 77. s. 16.
{d) .3 G. 4. c. 126. s.. 39.
to- have car-
riages
weighed.
154 Majiagement of Ways : Collectors. [^chap. vii.
any such waggon, &c. to pass with greater weights than are al-
lowed, without weighing and receiving the additional toll, he
shall forfeit 5/. for every offence ; and if the owner or driver of
any waggon, &c. refuse to allow the weighing, or resist any gate-
keeper or collector in so doing, he shall forfeit a sum not exceed-
ing 51. (a)
Trustees, And in order to detect any fraudulent contrivance or neglect
&c. may of duty in collectors, any trustee, &c. or surveyor of a turnpike-
have car- road, rnay, if he suspect connivance or neglect, cause any wag-
weU^hed S^"' ^'^' which shall have passed through any toll-gate where an
" engine is erected, and shall not have gone more than 300 yards
beyond the gate, to return to the engine, and to be there weighed
with the loading which passed through the gate in the presence
of such trustee, &c. This may be done on requiring the driver
to drive his carriage back to the engine, and on paying or ten-
dering 1,?. to him, which shilling shall be returned to the person
paying it, if upon weighing the carriage and loading, the weight
shall be found to exceed the allowance (6). And further, if any
collector, &c. shall suffer any waggon, &c. to pass upon any road
within his view and knowledge, or to pass with wheels of a less
breadth or a difFerezit construction *, without such names and
description painted thereon as the act directs, and shall not,
within one week proceed for the recovery of the forfeiture, &c.,
or shall allow any coach, &c., or any passenger to pass through
any toll-gate, without paying toll, or shall be guilty of any other
misconduct, he shall forfeit, on conviction before one justice, a
sum not exceeding 51. for each offence, at the discretion of the
justice (c).
These officers are protected in the proper exercise of their
duty. For if any person shall resist or make forcible op-
position against any person employed in the execution of any
turnpike act, or shall assault any surveyor, or any collector, or
shall pass through any turnpike gate, rail, chain, or other fence
set up by authority of parliament, without paying the due toll t,
or shall "hinder or make any rescue of cattle or other goods dis-
trained by virtue of the act, such offender shall forfeit a sum not
{u) 3 G. 4. c. 126. s. 22. And see s. 11, post, in this chapter; and post, in
tliis chapter, for the penalty which they incur for not attending to the lamps.
(6) 3 G. 4. c. 126. s,23.
* The words " or drawn with a greater number of horses than by tlie act al-
lowed," stood in this place originally, but were repealed by 4 G. 4. c. 96. s. 27.
(c) 3 (J. 4. c. 126. s. 52.
\ It is no defence, upon appeal to the sessions, to say that the gate has been
inilawfuUy erected. The rejection of evidence to that cHect is exclusively a ques-
tion for the dct(;rmination of the sessions, and a mandamus was consequently re-
fused. The court also declined to interfere with the conduct of tiie trustees in
iiaving creeled tlie gate, after a lajise of twenty-six years, for there were other re-
medies open to the party aggri(;v(.d than b)^ mandamus, as indictment or trespass,
whicii latter, tlie court observed, would be the more adequate and proper mode of
redress. I I), h H. 325, Hex v. Cambridgesliirc Justices.
CHAP, vii.] Management of )Vcit)s : Tolls. 155
exceeding 10/. at the discretion of the justice before whom he
shall be convicted (a).
No collector, or person renting the tolls;, or i-esiding in the toll- Toll-keeper
house, nor any apprentice or servant of such collector, &c., shall ""'^ "^^ S^'"
therein) gain a settlement (6). This clause, it should be noticed, ^^^ '^'^'^" *
does not preclude a toll-keeper from gaining a settlement at all
events, if he rent a tenement, for example;, and comply with the
provisions of the legislature regarding that mode of settlement,
his right to remain in the parish will not be affected by the
turnpike act. And it v/as thus decided under the old turnpike
act, where the servant of a collector resided in a turnpikc-hcjuse,
but rented a tenement of more than 10/. per annum in the
parish (c).
So again, under tlie old act, which was similar in this respect
to the present, it was determined, tliat the renting of bridge-tolls
was not within the prohibition, the bridge in question being no
part of the turnpike-road ((/). But Vv'here a person rented the
tolls arising from certain gates near the city of Durliam, and re-
sided in a turnpike-house erected by order of commissioners ap-
pointed under an act for paving the streets of that city, he was
held incapable of acquiring a settlement, although the v.^ords
" turnpike road" did not appear in the local act ; for, by the
Court, the one is a stone road, and the other a gravel road, and
every character belonging to a turnpike road belongs as well to
this (e).
A subsequent statute enacts., that no collector or receiver of
tolls for overweight, residing in any house or building erected
or used by the trustees, &c., for the residence or accommodation of
})ersons appointed for weighing, nor any ajiprentice or servant of
such collector, &c., shall Ihcrebij gain a settlement ^f^-
II. Of Tolls.
The mention of collectors naturally leads us to the subject of
tolls. The first thing to be done, is for the trustees or commis-
sioners of the turnpike-road to farm out or let the tolls. This
must be done at a public meeting, Avhere the trustees are to let
the gates on their respective roads. Notice must be given of the Notice of
time and place of letting, at least one month before the day, by af- nieeiing to
fixing it on every toU-gate on the road, and also by inserting it '*^^ '"''^*
(n) SG. 4. c. 126. s. IS9.
(6) Id. s. 61. 54 G. 3. c. 170. s. 5.
(<■) 5 East, 333, Rex v. Denbigh Inlieabitants.
{d) 1 M. & S. 514, Rex v. Bubwith Inhabitants. 3 M. & S. 249, S. P. per
Lord Eilenboroiigh, C. J.
(e) 1 1 East, 93, Rex v. Elvet Inhabitants.
(/) -4 G. 4. c. 95. s. 31.
156
Management of Ways : Tolln. Qciiai'. vii.
Tolls to be
put up at
the last
year's pro-
duce.
Mode of
biddincr.
Private
tender, if
not sold by
auction.
ToUs at fu-
ture auction
to be put up
at any sum.
Penaltj' on
farmer, &c.
Trustees
may bid.
Tolls not to
be let for
more than
three years.
in some newspaper circulated in that part of the country. The
sum which the tolls produced in the preceding year must be
specified in the notice^, clear of" the salary, (if any hired collector
were appointed ;) and it must state, that the trustees will let the
tolls by auction to the best bidder, on his producing sufficient
sureties for payment of the money monthly or otherwise, (as in
such notice shall be specified,) and that they will be put up at
the sum which they were let for, or produced in the preceding
year, clear of the collector's salary (a).
To prevent any fraud or undue preference, the trustees, &c.,
must provide a glass with so much sand in it as will run from
one end of it to the other in one minute, which shall be placed on
the table, and shall be turned immediately after each bidding ; and
so soon as the sand shall have run out, the glass shall be turned
again, and so for three times, unless some other bidding inter-
vene, and if no other person shall bid until the sand have run
through the glass three times, the last bidder shall be the farmer
or renter, and shall forthwith enter into a proper agreement * for
letting the tolls, and paying the money specified in the notice
with such surety, and under such conditions, &c., as the trustees,
&c., may think fit. In default of entering into the agreement
forthwith, the tolls may be put up again immediately, and so
continued until a bidder is found who will enter into the agree-
ment. If there be no bidder, and the tolls should not be let at
the auction, the trustees, &c., may accept a private tender, and
let the tolls for any sum not being less than that at which they
were leased the last time. Or the trustees, &c., may appoint a
collector, or fix some future day for the letting, notice being first
given as above, and they may put the tolls up in that case at
such sum as they shall think Jit (b).
Any person, whether farmer, renter, or collector, who shall
take a greater or less toll than is authorized by the act under
which he collects, shall forfeit 5/. for every offence, and if the
trustees, &c., think fit, the agreement shall be vacated, and
made null and void (f).
The trustees are entitled to bid for the tolls so to be let, either
by themselves, or their clerk or treasurer, or any other person
authorized. But no tolls shall be demised or leased for a longer
term than three years (d).
It is declared more specifically by a later act, that the trustees
(a) S G. 4.C. 12fi. s.-^S.
* Signed by the trustees, &c, or any two or more, or by their clerk or treasurer,
:iMtl the lessee, or farmer, and his sureties. It need not be by deed, or under seal.
n G. 4. c. ia(). s. 67.
(h) Id. s. 55.
(r) Ibid.
1' ^PP°'"^
, , 1 some one to
value (a). bid.
Tolls may
lie let ill
lots, and
then each
lot may be
put up at
any sum.
The tolls may be let in lots. They may be leased either in
one lot, or by parcels and in several lots ; and if the trustees,
&c., think proper to adopt that method, they are empowered to
put up each parcel at such sum as they may choose (6).
It hajjpons sometimes, that a toll-gate or bar belonging to the
trustees, &c., of one road is placed so near to the gate or bar of
another road as to be inconvenient to the respective trusts, and
to the public, in such cases the trustees, &c., of any turnpike-
road may rent the tolls of such other road adjoining to tliat un-
der their care, by agreement at a public meeting holden for the
purpose, and they may collect and receive the same, or reduce
or discontinue them as they may see lit (c).
Having stated how the tolls are farmed, we come now to shew Table of
the legal mode of proceeding to collect them. The trustees, tolls.
&c., are required to put up, and continue at every gate a table,
painted in distinct and legible black letters, on a board with a
white ground, containing at the top the name of the particular
gate, and a list of the tolls payable there, and distinguishing the
total amount of tolls payable under any particular act, and under
the two acts of 3 G. IV. and 4 G. IV., and the different sorts
of carriages for which they are to be paid, when there shall be
any variation therein, together with a list of the several gates
which are wholly or partially cleared by payment of toll at the
gate where the table is affixed. The trustees, &c. are to provide
tickets, denoting the payment of toll, on which the name of the
gate at which such tickets are delivered must be specified, and
also the names of the gates freed by the payment, one of which
tickets shall be delivered gratis to the person paying the toll.
On the production of such tickets at any gate therein mentioned
as being cleared by the payment of toll at the gate where the
ticket was delivered, the person producing the same shall pass
through the gate or gates without paying any further or addi-
tional toll ((/).
Of collectors we have already spoken, and it has been seen. Lessees
that the trustees may, if they think proper, appoint persons to may appoint
collect their tolls, but it is also provided, that during such time persons to
receive.
(a) 4 G. 4. c. 95. s. 63.
(6) Id. s. 52.
(c) Id. s. 54.
(rf) Id. s. 28. ; 3 G. 4. c. 126. s. 37. We have seen, that the collector is
bound under a penalty to deliver these tickets. Ante, p. 152.
158
Management of' fVai/s : Tolls. [caiaf. vii.
Contractors
discharged
from their
contracts by-
virtue of 3
G. 4. and 4
G. 4.
Tolls pay-
able in re-
spect of
what car-
riages.
Carriages
alTixed to
others.
as the tolls are leased, the lessee, &c.j or person appointed, by-
writing und<>r the hand of the lessee, &c., may demand and
take the tolls so leased, and use all such means for recovering
them in case of non-payment or evasion as any collector ap-
pointed under the turnpike acts might use. Such lessee, &c.,
or person so demanding and taking the tolls is to be subject to the
like penalties as such collector so appointed by the trustees, &c.,
as aforesaid (a).
The two statutes referred to in the margin enable contractors
for tolls or penalties in respect of overweight at the time of
passing the act of 1822, and contractors for tolls generally at the
passing of that of 1823, to give up their contracts respectively,
upon giving notice by the 1st of September in each year (6).
And the latter statute gives power to the trustees, &c., upon
such occasion to make any new contract with such lessee, &c.,
or to make any compensation to such persons in respect of tolls
payable on the road, or of the tolls or penalties for overweight ;
or to cause such tolls to be re-let on a day, and at a place ap-
pointed by them, of which re-letting a month's notice was de-
clared to be necessary. Such re-letting to be for the best price,
and not necessarily at the sum for which they were last let. No
other meeting for such re-letting was required (c).
Previously to entering upon the important question as to the
liability of different carriages to pay toll, it may be observed,
that the trustees of every turnpike-road have power to compound
for any term not exceeding one year with any person for tolls
payable in respect of horses, cattle, or beasts, or carriages, pass-
ing through any of their gates, and collected and taken under
the authority of the particular act in the execution of which
the trustees, »S:c., making such composition shall act, or of the
turnpike statutes 3 G. IV. or 4 G. IV. {(I).
The scale of tolls varies according to the provisions of the
local acts which are framed to meet the exigencies of the various
roads which they regulate, but the legislature has made many
general provisions both regarding the quantum of tolls, and the
particular description of carriages chargeable, which it now be-
comes our duty to consider.
With respect to carriages affixed, tied, or secured to others,
(n) 3 G. 4. c. 126. s. 58.
\b) .S G. 4. c. 126. s. 17. 4 G. 4. c. 95. s. 8.
' (c) 4 G. 4. c. 55. s. 9. The statute 3 G. 4. c. 126. s. IS, gave a like au-
thority, hut it was confined to the tolls or penalties in respect of overweiglit,
whereas (lie later art inchuled all tolls.
{il) 4 G. 4. c. 95. s. 13. Tlie prohibition in the act of 3 G. 4, against taking
a composition in respect of tolls for overweight is repealed by 4 G. 4. c. 95. s. 12.
CHAP, vii.^ Management of Ways : Tolls. 159
the act directs, that if no toll Lo specified by any act to be taken
for any coach, chariot, chaise, or other carriage with four wheels
affixed, &c., to any waggon or cart, the same toll, and no more,
shall be demanded, as if the same were drawn by two horses.
So again, any chair, cart, or carriage, with two wheels only, and
so atiixed, &c., shall pay such a toll as though it had passed
through the gate with one horse, provided, again, that no specific
toll be directed by any act. Lastly, if any horse be fastened to
any waggon, cart, or other carriage, not being used in drawing it,
no higher toll shall be taken than as for a single horse. How-
ever, if any coach, chariot, chaise, chair, cart, or other carriage,
so affixed^ &c., shall have any goods conveyed therein besides the
harness belonging, and such articles of package as may be ne-
cessary for the protection of such carriages, the same shall be
liable to double the toll imposed as above (a).
After the 1st of January 1823, the trustees, &c., of any turn- Extra half
pike road were required to demand and take the following extra '^"''^' ^^'*
tolls :
-Ei • i ii 1 fOne half more
ror every Avaggon, wain, cart, or other such , +i <. n ,
• 1 * . t_^ c n* i* ii 11 Pi tnan tiie toils
carriage, having tlic tellies oi the wheels ot | r. 1 1 f 1
less breadth than four inches and a half at the<( ' ' -J . ' . ,
bottom or sides thereof, or for the horse or ' '
horses, or cattle drawing the same
I wheelsof6inch-
(^es in breadth.
For every waggon, &c., [^as above] having , .,. ,
the fellies, &c., of the breadth of four inches j . , ,
and a half, and less than six inches at the bot- J , i* f r* 'i
torn or sides thereof, or for the horse, &c. (6).,. i ^\ f i'^^^'
^ ^ 5_es in breadth.
The rate for the width of wheels, as ordered by the old act of Exceptions.
13 G. III., was not acted upon universally. Provision was, there-
fore, made by the legislature upon a different scale from that given
above, in respect of such roads as were not regulated according
to that statute. Thus, where the trustees. Sec, shall not, previous
to the passing of the 3 G. IV. [the act of 1822J have taken
and collected the additional tolls on waggons, &c., having the
wheels of less breadth or guage than six inches, &c., as directed
by 13 G. 111. and where, under the particular or local act there
shall not be any scale of tolls applicable to the road in question,
such trustees, &c., after the 1st of January, 1824, shall con-
tinue to take,
(a) 3 G. 4.C. 126. s. SI.
{b) Id. s. 7.
160 Management of Ways : Tolls. [^ciiap. vii.
-r^ • 4. i.1, 1 ^The same tolls
liAi>. VII.] Md/ingetnenI uj lV(ii/i : 'J'o/I.s-. 163
duce tlie tolls at all or any of tlie fixates ; but the court said, tliat
such a deduction could only be made at uU the gates, and that tlie
legislature never intended to concede to them the power of redu-
cing or advancing the tolls at one gate, and not at another. A rule
for a mandamus, therefore, commanding tlie trustees to call a
meeting, for the ijurpose of establishing an uniform rate of tolls,
was made absolute («).
We have now shewn, that certain tolls are payable by virtue Additional
of the respective local acts which regulate the different roads, '°'^^ ^"l"
that certain tolls are also payable in respect of a greater or less "^^'''^'^'S •
breadth of wheels, and in the chapter on the user of ways, we
have given a table of the weights which may be ordinarily carried
upon roads at the usual charge. Should there be an excess of
weight in the loading of the carriage, such carriage becomes liable
to another charge, called, an addilivnal toll.
The Scale is as follows : pe"" hundred.
s. a.
For every hundred weight, \_oi 112 lbs. to the hun-
dred weight *] which any waggon, cart, or other
such carriage, togeth.er with the loading thereof,
shall weigh over and above the allowed weight,
for the first and second hundred of such over-
weight 3
Above two hundred, and not exceeding five 6
Above five, and not exceeding ten hundred 2 6
For every hundred exceeding ten 5
Such sums may be collected by the usual persons authorized,
and may be levied and recovered like other tolls or duties pay-
able on the road on which any such weighing engine shall be
erected, and the monies are to be applied to the repairs of the
road (6).
watering
roads.
There are also additional tolls on some roads for watering Additional
them during certain months. The time for watering under tolls for
such acts having been found too limited, the trustees, &c. are
permitted, by a new enactment, to water roads between the 1st
of INIarch and the 1st of November, and to take the additional
toll during that interval. The trustees are to have the same re-
medies for recovering the last-mentioned tolls, as in the case of
other tolls (c).
(a) 4 B. & C. 361, Rex v. Bury and Stratton Roads' Trustees.
* The words of the act,
{b) 3 G. 4. c. 120. s. 15. See under the old acts, Cowp. 365, Chamberlin v.
Songhurst.
(c) 3 G. 4. c. 126. s. 120,
M 2
164
Mayiagemeyit of Ways : Tolls. [chap. vir.
Tolls gene-
rally not
rateable.
Penalties
for evadinj,
toll.
Disputes
concerning
tolls to be
settled by a
justice.
Tolls taken on turnpike roads, whether according to the ordi-
nary scale, or for overweight, are not rateable. Nor are toll-
houses. The Avords of the act are very explicit, that no tolls,
nor toll-house, nor any person in respect of such tolls, or toll-
house, nor any tolls or penalties for overweight, nor any person
in respect thereof, shall be rated or assessed towards the payment
of any poor's rates, or any public or parochial levy whatso-
ever (c/).
The penalties for obstructing the weighing of carriages have
been already mentioned (6) ; it remains only to notice the pu-
nishment which is inflicted upon such as evade the common toll.
Thus, if any person shall go oif or pass from any turnpike road
with any horses, cattle, beast, or carriage, through or over any
adjoining land, not being a public highway, (such person not be-
ing the owner or occupier, or servant, or one of the family of the
owner or occupier of such land,) with intent to evade the pay-
ment of toll ; or if the owner or occupier of such land shall know-
ingly or willingly permit any person (except as aforesaid) to go
over such land with any horses, &c. [^as above] with a like intent ;
or if any person shall give or receive from any person other than the
collector, or forge, counterfeit, or alter any note or ticket directed
to be given with a like intent ; or if any person shall fraudulently
or forcibly pass through any gate with any horse, &c. ; or leave
upon the road, &c. any horse, &c. whereof the payment of toll
may be avoided or lessened ; or have any horse, or other beast or
cattle taken off from any carriage, either before or after passing
through ; or having passed through, shall add or put any horse or
other beast to any carriage, and draw so as to increase the num-
ber of horses, &c. drawing the carriage, after the same shall have
passed through any toll-gate, whereby the payment of toll may
be evaded ; or shall do any other act to evade toll ; such person
shall forfeit for each offence a sum not exceeding 5/. (r)
If any dispute should arise about the amount of tolls due, or
the charges of making, keeping, or selling any distress for non-
payment of toll, the collector, or person distraining, may retain
the distress or the money arising from the sale of it, until such
amount and charges be ascertained by some justice for the county,
&:c. wherein the turnpike gate at which the disputed toll is pay-
able, may be situate. The justice, upon application made to him,
shall examine the matter on the oath of the parties or other wit-
ness, (the justice being hereby empowered to administer such
oath,) and sh:dl determine the amount of the toll due, and award
such costs and charges to either j)arty as may appear proper to
(a) .3 G. 4. c. 120. s. r.l.
{h) Ante, pp. 148, IT)'!..
(c) S G. 4. c. 120. s. 41.
i G. 4. c. 55. s. 31.
CHAP. VII. 3 Management of Ways : T(dls.
165
him. Such costs and charges are to be recovered in case of non-
payment by distress and sale of the goods of the defaulter l)y war-
rant under the hand and seal of the said justice, the overplus to
be returned (if anv) after deducting the costs of the distress and
sale (rt).
Of Exemptions from Toll.
We come now to a very important part of our subject, and one
which embraces many disputed points ; namely, the various ex-
emptions from payment of toll which have been allowed by the
legislature.
First, no toll is to be taken for any horses or carriages attend-
ing his IMajesty or any of the royal family, or returning there-
from \_ox (under a more recent act) for any horses or carriages at-
tending or going to attend, or returning from having attended his
IMajesty or any of the royal family (b).'] Nor in respect of car-
rying or conveying, or going empty to fetch, carry, or convey, or
returning empty from carrying any stones, bricks, timber, wood,
gravel, or other materials for the repair of a turnpike road or
public highway, or for building, rebuilding, or repairing any pre-
sent or future bridge * on any such road or highway, provided,
that the horses or carriages, &c. so exempted have been employed
upon that work only on the same day ; nor from the surveyor of
any turnpike when engaged in executing, or proceeding to exe-
cute within the limits of his own trust t the powers of any act
relating to his road. Nor in respect of the carrying or convey-
ing X any dung, soil, compost, or manure § [^save and except
lime^ II for improving lands, or any ploughs, harrows, or im-
His ma-
jesty's
horses, &c.
IMaterials
for roads
and bridges.
No toll from
surveyor.
JNIanure.
(a) 3 G. 4. c. 126. s. 40.
(6) 4. G. 4. c. 95. s. 24.
* It had been decided, that bridges were not highways within the meaning of
13 G. 3, (the old act,) which exempted carriages carrying materials for the repair
of roads. 2 B. & A. 49, Osmond v. Widdicombe.
f The words " or any adjoining trust," stood here originally, but they were re-
pealed by 4 G. 4. c. 93. s. 25.
I As to going empty for that purpose, see post, p. 169.
§ But if, by any local act, dung, compost, or manure be made specially subject
to toll tlu-oughout the whole of the particular roads which it regulates, without any
local, parochial, or partial exemption, the exemption given by the act of 1822,
mentioned in the text, shall not be available. 4 G. 4. c. 95. s. 23. See further
provisions on the subject of exempting manure, and materials, together with the
implements for unloading tkem, from toll, post. p. 169, et seq.
II But lime is now expressly' exempted. For it had been determined under
an old act, 31 G. 2, that lime was not exempt (a), and by a recent determination,
(a) Anon. LofTt. 324.
166
Management of Ways : Tolls. f(;nAP. vii.
Agricultural
produce.
Horses em-
ployed in
husbandry.
Going to or
returning
from
church.
Rector, &c.
attending
duty.
Vagrants
and prison-
ers.
Mails.
plements of husbandry? (unless laden also with some other thing
not hereby exempted from toll,) or any hay, straw, fodder for
cattle, and corn in the straw, which has grown or arisen on land
in the occupation of the owner of any such hay, &c., potatoes, or
other agricultural produce, and which has not been bought,
sold, or disposed of, nor is going to be sold; the horses, &c. so ex-
empted having been employed only as aforesaid on the same day.
Nor for any horses or other beasts employed in husbandry going
to or returning from plough or harrow, or to or from pasture or
watering-place, or going to be or returning from being shoed or
farried ; such horses, &c. not going or returning on these occasions
more than two miles on the turnjuke road on which the exemp-
tion shall be claimed. Nor from any person going to, or return-
ing'from his parochial church or chapel, or usual place of reli-
gious worship tolerated by law, on Sundays, or on any day on
Avhich divine service is by authority ordered to be celebrated *.
Nor from any inhabitant of any parisli, township, or place, go-
ing to or attending the funeral of any person who shall die and
be buried in the parish, township, or hamlet in which any turn-
pike-road shall lie. Nor from any rector, vicar, or curate going
to or returning from visiting any sick parishioner, or on other his
parochial duty within his parish. Nor in respect of carrying or
conveying any vagrant sent by a legal pass, or any prisoner sent
by a legal warrant, or returning empty after having been so em-
ployed. Nor in respect of any horses or carriages of whatever
description employed in conveying the mails of letters and ex-
presses under the authority of the postmaster-general, either
when employed in conveying, fetching, or guarding such mails
the carria-je of that article was held not to be exempt under the words " any thing
whatsoever used in the manuring of land," in an act of parliament, those expres-
sions being considered to apply only to the carriage of ploughs, harrows, and such
instruments («). Therefore, a provision was made, that no toll should be taken
for lime for the improvement of land, oilier than under the authority of any local
act previous to the passing of the 3 G. ' ^'"^
the tolls, which lie may conse((iiently receive, to his own use, but "I ^^\ mun-
he must apply them to the use of all tlie mortgagees of the said ^'°
premises pari passu, and in proportion to the several sums which
may be due to them as such mortgagees {a).
The trustees, &c., of roads are empowered to pay off their Trustees
creditors by lot, when they wish to discharge a portion of their "^^>' P-'^y °"
debt. Shoidd they be desirous of doing so, and should all the ^^'^
interest on the principal monies be paid, or otherwise satisfied,
they may, if they think fit, determine, by lot, to which creditors
the whole, or any portion, shall be paid, instead of paying rate-
ably amongst all the creditors, and they may pay such creditors
accordingly, or they may pay any creditors, with the consent of
the rest, without lot. The determination by lot must take place
at a meeting, (holden according to the directions of the respective
acts concerning meetings,) of which notice must be given, and of
the purposes for which it is to be called, twenty-eight days at
least preceding the same, by advertisement in some newspaper
printed in, or usually circulated in, the neighbourhood of the
road (/>»).
Should any mortgagee keep possession of any toll-gate, &c., Mortgngee
either in person, or by means of others, and receive the tolls ; or keqinig pos-
of any such rents, &c., such mortgagee having received his full
debt, with interest and costs, he shall pay, as a penalty, to the
trustees, &c., double the sum he may have received, over and
above the sum originally due to him, with treble costs of suit,
to be recovered by the treasurer or clerk, by action of debt, bill,
plaint, or information, in any court of record, such penalty to
be applied to the use of the road where the toll-gate was situate,
or where the rents, Sec, were so appropriated (c).
session un-
lawfully.
But trustees are not personally liable to the payment of mort-
gages, or other turnpike securities, by reason of their having
signed or executed them ; and, further, in case any action, suit,
or prosecution, be br(»ught against them, ill respect of the road,
all their costs, charges, &c., of defence, shall be defrayed out
of the tolls of the road (d).
If trustees execute a deed, which the act will not warrant,
they are not estojiped from saying that they have no interest, as
they would be, if private persons : for the general principle, that
a party is estopped by his own deed, does not apply to a case,
(a) 3 G. 4. c. 12(j. s. 49. See 2 B. & P. 219, Doe d. Banks v. Booth.
(b) 4 G. 4. c. 95. s. 60.
(f) 3 G. 4. c. 126. s. 48.
Id) 4 G. 4. c. 95. s. 61. 7 & 8 G. 4, c. 24. s. 3. See post, p. 189.
N
Trustees
not person-
ally liable.
178
Manageinent of Ways : Tolls. Qchap. vii.
Of toll-
houses.
Erecting,
pulling
down gates,
Justices,
when to re-
move gates.
where trustees act not for their own benefit, but for that of the
public. That point was decided, where trustees had mortgaged
toll-houses, which they were not authorized, as the law then stood,
to transfer («).
We conclude our observations on tolls, Avith the provisions of
the legislature regarding tlie places where such tolls are collected.
The trustees of any turnpike road are empowered to continue all
the gates standing at the time of the passing of this act Qhe act
of 1H27, 9. G. 4.3 in, upon, or across any such road, or on the
sides of it, and to order, by writing, signed by three at least of
the trustees present, at a special meeting held for the purpose,
(which meetings may be holden from time to time,) the building
of such and so many toll-gates, turnpikes, side-bars, and chains,
with toll-houses, out-houses, and other conveniences * in, upon,
or across such road, or on the sides, as they may judge neces-
sary. Of such special meeting, however, public notice, speci-
fying the time and place, must be given in some newspaper,
published or circulated in the county, or counties, where the
road lies, and also bv affixing a copy of the notice on all the turn-
pikes, &c., or side-bars, (if any,) then being on the road, four-
teen days previously. The trustees, moreover, may take in and
enclose suitable garden spots on the sides of the road, for such
toll-houses, not exceeding one-eighth of a statute acre to each
toll-house, as they may appoint. And also, at any such meet-
ing, or any other, to be called as aforesaid, they may, by a like
order, direct any toll-gate, &c., to be taken down, or discon-
tinued, or removed, or placed elsewhere, upon, across, or on the
sides of the road, in such situations as may appear eligible to the
trustees. But the above authority does not extend to authorize
the erection of any gate, &c., where, according to a local act, no
such gate, &c., is permitted to be placed (b).
Should the trustees exceed their power, by erecting or conti-
nuing any gate, &c., where they have no power to erect sxich gate
under any act, the justices of the limit where the gate, so wrong-
fully standing, may be, may hear and determine in a sum-
mary way, at their general quarter-sessions, whether such power
(a) 2 Term Rep. 169. Fairtitle d. Mytton v. Gilbert.
* [Conveniences.] An act jjermitted trustees to make suitable buildings with
conveniences. The defendant proposed to sink a well on his own ground adjoin-
ing a tollhouse, and bear lialf liie expense. The trustees concurred. The de-
fendant did not pay liis moiety, and the clerk to the trustees sued him and reco-
vered. It was held, that the sinking of the well was within the authority of the
trustees, for it was clearly a convenience; that the contract, though entered into
by one trustee only, was binding, since tlie rest had adopted it, and that the consent
of the trustees was a sufficient consideration, for their concurrence was necessary
to the sinking of the well, under the act of parliament. 1 D. & K. 202, Newman
V. Fletcher.
(Ii) 'ations of Lord Kenyon, Ch. J.
upon the report of the above case in Wilson. See 5 B. & A. 837, Jones v. Bird.
(e) 2 Sir Wm. Bl. 926.
(/) 7 Taunt. 1, Everett v. Cooch.
of trustees.
192
Improvement and Management of Ways : Actions, f chap. vrr.
Notice of
action
against
turnpike
officers.
The various turnpike acts commonly prescribe, that a notice
of action shall be served upon the officers before they can be
sued, and we have seen, that the act of 1822 directs, that twenty-
one days' notice shall be the ordinary time required for such
notice. A trustee was sued in debt for penalties for letting out
his horses and cart, to hire contrary to the law in that respect,
but it was not stated in the notice of action, that the defend-
ant was a trustee acting in the execution of the act, and the
notice was consequently holden had. It was further held,
that the omission to give a proper notice did not merely bar the
plaintiff of his right to costs, as had been contended in argu-
ment, but of his right of action altogether {a). The substantial
part of the enactment just referred to is, that trustees or other
officers should have notice in order that they may tender satis-
faction, and that the action should be brought promptly after the
fact committed. But it was contended, on the occasion where
the terms of a local act were similar to those above mentioned,
that the statute applied to actions of tort only, and, therefore,
that in assiimpsit against a toll- collector, it was neither neces-
sary to give the twenty-one days of notice, nor to be particular in
bringing it in the county where the matter arose. But the court
thought otherwise, for in many cases the plaintiif may waive
tort, and bring assumpsit, and they said, that whatever was done
in pursuance of the act came within that provision which re-
quired notice. The /)o.y/e« was delivered to the defendants (6).
A notice of action against a toll-gate keeper " for demanding and
taking of the plaintiif toll for and in respect of certain matters
and things particularly mentioned and exempted from the pay-
ment of toll, in and by a certain act of parliament, intituled," &c.
has been holden uncertain and bad (c).
We have seen, that the late turnpike acts contain clauses
which extend all the powers and provisions of former acts
to the new statutes. This, as will be seen from the following
case, is a provision extremely necessary. The Highway Act
directs, as has been mentioned, that actions shall be brought in
the county where the fact has been committed, and not elsewhere.
A subsequent statute, which imposed new obligations upon per-
sons entitled to the above privilege under the HighAvay Act,
was silent in that particular, and it was consequently holden,
that actions under the latter statute need not have been brought
in the county where the thing complained of had been done (f/).
The present turnpike law remedies this omission by an express
provision.
(a) 5 B. & C. 125, Towsey v. White.
(6) 4 B. & C. 200, Watcriiousc v. Keen.
(c) 2 Cliit. Kcp. 073, Freeman v. Line.
((/) 5 Term Ilei). IC, 13azing v. Skclton. Sec Burn's Justice, cd. 23, Vol. II.
p. 750. n. (a).
cuAP. VII.] Improvement and Management of' Ways : Actio/ts. 193
The Highway Act declares, that every action or suit against Limitation
any person, for any thing done in pursuance of that act, must be of actions,
conimenced or prosecuted within three calendar months after the
fact committed, that such action, ike, must be brought in the
county where the act lias been done, that the defendant may plead
the general issue, and give the act and special matter in evidencCj
and that the same may have been done in pursuance of, and by
the authority of the act. If the same appear to have been so
done, or if any action, &c., be brought after the time limited, or
in any other place than that p(»inted out, the jury shall find for
the defendant. Should the plaintiff become nonsuit, or dis-
continue after appearance, or should judgment be given against
the plaintiff on demurrer, the defendant shall have treble costs,
and have the like rernedy for recovering them as in other cases,
according to law («).
Similar provisions >vill be found in the turnpike act referred
to (b).
lendar
months.
Certain surveyors of the highway, in the course of some Within
improvements which they were carrying on in the street in three ca^
Penzance, undermined the plaintiff's wall. This took place
in May 1810. On the 31st of January, 1811, the wall fell
down, and the action was commenced on the 13th of the fol-
lowing April, whereupon it "was objected, that under the
above section of the Highway Act, the defendants were
entitled to a verdict, .for the thing done was the digging up the
highway, and not the falling of the wall, which was the mere
consequence of that wrongful act. A verdict passed for the
plaintiff, and the court refused a rule for entering a nonsuit, for
the consequential damage was the gravamen, and an action on
the case could not have been sustained until the specific wrong
had happened (c).
This authority was mentioned on a subsequent occasion, when
Lord Chief Justice Gibbs observed, that he should have had
great difficulty in coming to the same conclusion, because the
act directed the action to be brought within six months after
the doing of the thing complained, but his Lordship added, that
the Court of King's Bench had followed the justice of the
case (d). It did not become necessary to decide the point as to
the limitation of time, in the case where Gibbs, Chief Justice,
expressed himself in this manner.
(a) 13 G. 3. c. 78. s. 82.
(b) 3 G. 4. c. 126. s. U7.
(c) IG East, 215, Roberts v. Read.
(d) 1 Marsh. 437, and see id. 4,35.
194
Mortgagee.
Actions by
officers.
Prosecu-
tions and
actions by
trustees, &c.
Toll-col-
lector.
Improvement and Management of Ways : Actions, [^chap. vii.
We have already seen, that a mortgagee of tolls is competent
to maintain ejectment («).
It does not follow, that because penalties are imposed for
offences, a right of action is taken away from parties aggrieved,
as in the case of a scavenger, who was allowed to maintain an
action for taking away dust, although an act of parliament
treated such a proceeding as an offence, and imposed a fine of
10*. for so doing (6).
Trustees, &c., are empowered, if they think fit, at a public
meeting, to direct prosecutions by indictment, or otherwise, for
any nuisance, or other offence done, or committed, on the road ;
or to recover any penalty or forfeiture incurred under the pro-
visions of turnpike acts, at the expense of the revenues arising
from the road, such expenses to be allowed to such trustees, &c.,
at some subsequent meeting (c).
It has been held, that if a person recognize the right of a toll-
collector, although he be illegally appointed, the trustees at the
same time making no objection, he is estopped from setting up
the informality or nullity of the appointment.
The administratrix of a toll-gatherer brought an action for
monies due to her intestate. She had sent to the defendant an
account of the debt, and he sent 51. inclosed in a letter to her,
stating that she should have the remainder next week. This
was held to be evidence to be an account stated (fZ).
And by Le Blanc, J. : " Shall it be permitted to a third per-
son, after having treated with the intestate, as a person legally
entitled to receive the tolls, and having actually settled an ac-
count with him for the amount, shall it be permitted to such an
one now to object to the plaintiff's recovery, not upon the special
count, but upon the account stated ? " (e)
(o) Ante, p. 176.
(6) 2 Chit. Rep. 582, Ward v. Bird.
(c) 3 G. 4.. c. 12G. s. 133.
(d) 10 East, 104, Peacock v. Harris.
(e) Id. 108.
]95
CHAPTER VIII.
Of Bridges and Ferries.
Section I. — Of Bridges.
Section II. — Of Ferries.
Section I. — Of Bridges.
Bridges are public or private.
A public bridge is a common king's highway.
A private bridge, as to a mill, &c., is similar in its nature to
a private right of way, and subject to most of its incidents.
We propose to consider in this chapter,
I. What is a public bridge.
II. By whom, and how, it is to be built, &:c.
III. Of other incidents relating to bridges — as rating tolls,
punishment of annoyances, &c.
IV. Lastly. Of the liability to repair, and the various re-
medies for non repair.
The principal circumstance necessary to constitute a public I. What a
bridge is, that people at large may have a free and uninterrupted P»Ij1*'c
user of it, not upon sufferance, but as a matter of right. The ^''"^'se-
mode of construction and the manner of continuance, are matters
which deserve consideration upon inquiries of this nature, but
they must be weighed as connected with other facts, and are of
much or little Aveight in proving a general privilege, in pro-
portion as they are supported or contradicted in that respect.
A bridge may have originated in the convenience and for the
protection of an individual, and may yet be of public right.
It may not even be open at all times, but the user of it may be
restricted to certain seasons. Thus, a bridge was used bv the
public at all times, on foot and witli horses, but only occasion-
ally with carriages, except in times of flood, or frosts, when it
was usual to pass through the river beneath, and then carriages
o2
196 Bridges, [[chap. viii.
always passed over the bridge. It was said by the court in this
case, that such a limited enjoyment was quite consistent with
the idea of a public bridge (a). Again, a causeway and bridge
were only used by the public in time of floods, and in the time
of very high floods the bridge itself was impassable, but they
were at all times open to the public. It was holden, that this
was a public bridge (b).
how built.
II. Who to Sometimes a bridge is built by the county, sometimes by pri-
build, and y^^g persons, but it has been held, that the owner of an ancient
" ' ferry cannot suppress the old right, and erect a bridge, without
a licence for that piirpose, under the writ of ad quod damnum (c).
But, in general, it is competent for any one to build a bridge,
although, if it be likely rather to burthen the county, than beneflt
the public, the county may interfere, and hinder the erection.
No one can be compelled to make a bridge, except by act of par-
liament, where none existed before {d), and so it was ordained
by the great charter (c).
Bridges, however, are very frequently made by companies under
the authority of acts of parliament, and then, as Ave shall see by and
by, the expense of maintaining them falls upon the body who are
thus acting for their own benefit. It follows, from hence, that
where it is needful the county may erect a passage of this kind,
for the expense both of its creation and repair falls necessarily
upon them ; and, indeed, powers are given to the justices at ses-
sions to obtain land* for the purpose. For they may, in any
county, city, &c., at their general, or general quarter-sessions, or
the major part of them may agree Avith any person, or body po-
litic, for the purchase of any piece of land joining, or near any
county bridge within the limit, for enlarging or more conve-
niently rebuilding the same, provided such purchase do not ex-
tend to more than one acre. The money is to be paid out of the
county rate by the treasurer, under the authority of the justices,
under their hands and seals, and the lands are to be conveyed to
such persons as the justices shall appoint in trust for the above
purpose (,/)• " If the words of the statute be taken strictly,"
says ]Mr. Justice Bullcr (g), " they would be confined to the
sum contracted for with the seller ; but the purchase cannot be
completed without some other contingent expenses, taking
(a) 2 M. & S. 262, Rex v, Northamptonshire Inhabitants.
(b) Ry. Si M. 144, Rex v, Devon Inhabitants. See 2 Campb. 455.
(c) 1 Salk. 12, Payne v. Partridge.
(d) 2 Inst. 701.
(c) n II. :i. o. 15.
* That land given for the repair of bridges must be lot at its fair value, see
ante, p. 93.
(/) U G. 2. c. 3.3. s. 1.
(;r) i Term Rep. 590.
CHAP. VIII.] Bridges. 197
an abstract of the title, drawing tlie conveyance, &c., wliich
must therefore necessarily be included in the act."
Whoever undertakes to build a bridge, must, nevertheless, How built,
so construct it as to be of public utility, for if it be done in a &<-•.
slight and imperfect manner, for the purpose of throwing the
expense upon the county, it will become a public nuisance, and
so indictable («). And so it is in the case of jjrivate bridges, if
they become public nuisances (i).
The legislature, at length, interfered to point out the description
of public bridges. It is accordingly declared, that no bridge here-
after to be built in any county []or hundred, &c. 54 G. 3. except as
to future bridges] by any individual or body politic, shall be deemed
to be a public bridge, liable to be repaired by the county, &c.,
unless it be erected in a substantial and commodious manner, under
the direction or to the satisfaction of the county surveyor, or per-
son appointed by the justices at their general quarter-sessions, or
the justices of Lancaster at their annual general sessions. The
surveyor, or person so appointed, is to superintend the erection
of the bridge, when requested by the parties desirous of erecting
it ; and in case the said parties be dissatisfied, the said justices
shall determine the matter at their respective sessions (c).
Again, the bridge must be built in the highway, if a public
bridge, and no indictment will lie for the non repair of any other
bridge (f/).
Before the statute above referred to, justices at sessions had Changing
no power to alter the situation of bridges (e) ; that must have ^^^ situation
been done by an ad quod damnum, or by authority of parlia- L)i"'age-
ment (,/")• But that act gave them impliedly the authority to
do so, for the words " enlarging or more conveniently rebuild-
ing," enable them to suit the public convenience by varying the
position of the bridge, and changing the road {g).
The right of property in a bridge is precisely analogous to Right of
that of the highway, which we have seen to remain in the ad- property in
joining proprietor in land, subject to a right of passage by the """S^-
public (//). Sir G. W. permitted the plaintiff to build a bridge
over his land, for public use, it Mas to be repaired by the plain-
(a) 2 East, 348, by Lord Ellenborough. Id. 332, by Grose, J.
(6) 6 Mod. 255, by Holt, C. J.
((?) 43 G. 3. c. 59. s. 5. Orders respecting bridges in Yorkshire are to be made
at the Easter sessions. Save, that, in cases of emergency, any two justices of any
riding may give orders for the making of temporary bridges, or temporary repairs.
Id. s. 6. The act does not extend to bridges repairable ralione tenura:. Id. s. 7.
((/) 6 Mod. 253, by Holt, C. J.
(e) Bv Buller, J. ' 5 Term Rep. 283.
(/) See 6 Mod. 307, The Queen v. Wilts Inhabitants.
(g) 3 Term Rep. 283.
\h) 2 Inst. 705. 1 Ro. Ab. 392.
198
Bridge
[^CHAP. VIII.
tiff, and he was not to demand toll. The defendants, the owners
of a house in the neighbourhood, took down the upper stones of
the battlement at one end of the bridge, and carried them away,
and subsequently built a wall with them. The plaintiff brought
trespass. It was contended, that the action would not lie, since
the bridge, when built, had been dedicated to the public, and
the plaintiff had then no interest in it. But the court held,
that the complaint being for taking away materials from the
bridge, the fourth count, on the asportavit, was sufhcient to
entitle the plaintiff to a verdict against the defendants, who were
wrong-doers ; that those materials were dedicated by him to the
public, for given purposes, and that, when those purposes could
no longer be answered by their ceasing to be combined in that
form, they returned again to the plaintiff as his absolute pro-
perty (a).
III. Inci-
dents.
Tolls of
bridge not
rateable.
No ale-
houses on
bridges.
Damaging
bridges, &c.
We will just mention here some few incidents relating to
bridges, before we proceed to inquire into the liability of repair,
since the latter is an extensive subject, and deserves an entirely
independent consideration.
First, the tolls of a bridge are not rateable per se. The lessee
of certain tolls was assessed to the poors' rate in respect of them,
but appealed against the rate, which was confirmed. When
the case, hoAvever, came before the Court of King's Bench for
their revision, they quashed the order, for it did not appear that
the lessee was the occupier of any dwelling-house within the
parish, nor that he Avas an inhabitant resident (6) within the
parish, and deriving profit from the tolls beyond the rent he paid
for the same, which was applicable to public purposes (c).
For the preventing of obstructions, which (to use the words of
the act) frequently happen by the stopping of carriages on or near
public bridges, it is provided that any collector of tolls at bridges
for carriages, or cattle of any kind, who shall keep any victual-
ling-house, ale-house, or other place of public entertainment, or
shall sell, or permit the sale of any wine, beer, ale, cider, spiri-
tuous or other strong liquors, shall forfeit 5/. for each offence,
upon conviction, before a justice of the limit, by the oath of a
witness, or confession ((/).
Annoyances committed by damaging bridges are punishable
as we have mentioned in the chapter on obstruction, and to
which the reader is referred (c). And the inhabitants of coun-
ties Qand of hundreds, except as to future bridges, &c., by 54
(a) East, 1 54, Harrison v. Parker.
(6) Sec 12 East, S.'iO, Ilex v. Nicholson, as to the tolls of a ferry.
(c) 12 East, 410, Rex v. Eyre.
(d) 13 (J. 3. c. 78. s. 63.
(c) Ante, p. 45.
CHAP. VIII.] Bridges. 199
G. 3.] may sue for any damages done to bridges and other
works maintained and repaired by such counties, &c., and for
the recovery of any property behjnging to such counties, &c.,
in the name of their surveyor; and may also be sued in his name.
And no action or prosecution brought by or against them by
virtue of the act shall abate or be discontinued by the death or
removal of the surveyor, or by the act of tlie surveyor, without
the consent of the justices assembled at the quarter-sessions,
the surveyor in such actions to be deemed the plaintiff or de-
fendant, as the case may be. But every such surveyor shall be
reimbursed out of the monies in the hands of the treasurer of the
public stock of the county for his costs, whether by reason of his
being [)laintiff or defendant in actions, or of his prosecuting in-
dictments (fl). An obstruction to the passage over a bridge
must be removed, and cannot be dispensed with (b). The punish-
ment for maliciously damaging a bridge is transportation for seven
years (c).
In speaking of the repair of bridges, it will be found, that IV. Of the
the county, city, or corporation, where they are situate, are re- repair of
spectively bound to repair, as a general principle. But we shall '^'"'ges.
mention exceptions to this rule. The nature of the bridges to
be repaired will also claim our attention, and the description of
repairs which are requisite. This consideration will lead us to
set out the provisions of the legislature for the obtaining of
materials for such repair, for the contracting, on tlie part of
magistrates, for that purpose, for providing against the emergency
of sudden damage or decay, by raising a fund for temporary
repair. And lastly, we shall disclose tlie mode of raising money
for paying the expences of general repair. The amendment of
private bridges will be then noticed, and the chapter will be con-
cluded with a review of the different remedies which are avail-
able in case of non-repair.
A county bridge, being for the common good and ease of all Who to re-
the inhabitants, ought to be repaired by the whole county (d), pair public
unless it be shewn that some other than the inhabitants ought bridges.
to bear the obligation (e).
This was at common law, in affirmance of which the statute The county,
of Henry 8. was made. By that act, the justices of peace
in every shire, franchise, city, or borough, or four of them, one
to be of the quorum, are empowered to inquire of and deter-
mine, at their general sessions, all annoyances of bridges broken
(fi) 43 G. 3. c. 59. s. 4. The act does not extend to bridges repairable by
reason of tenure. Id. s. 7.
(6) Vaugh. 340.
(c) 8 G. 4. c. 30. s. 13.
Id) 10 E. 3. 28. 13 Rep. 33. Cro. Gar. 366. 2 Inst. 701.
(e) Cro. Car. 3B5, Langforth Bridge case. 4 Vin. Ab. S82, S. C.
200
Bridges.
[^CHAP. vin.
Who to re-
pair.
in the highways, and to make such process and pains upon
every presentment before them, for reformation of the same,
against' such as should be charged to the amending such bridges,
as they may see fit («).
Upon this section Lord Coke observes, that if the franchise,
city, or borough, be a county of itself, and have not four justices,
&c., no other justices can, under the act in question, interfere ;
but the decay must be enquired of and remedied as at common
law (6). And he says further, that the provision extends only
to common bridges in the highways, and not to private bridges,
to mills, &c. (c)
The statute goes on to declare the persons who are liable.
Thus, where it cannot be known what hundred, town, parish, or
person, ought to repair, if they be not in a city or town corporate,
the inhabitants of the shire or riding shall repair ; and if part of
the bridge happen to be in one shire, and the other part in
another, or in some city, or town corporate, then the respective
shires, cities, &c. shall repair withiy their several limits (rf).
This section again is declaratory of the common law, only it was
new, that a hundred might be chai'ged with such repair by pre-
scription (e).
Inhabitants. One who has lands and tenements in his own possession in the
county, &c. is an inhabitant within the act, according to Lord
Coke, although he dwell in a foreign county, &c. So, if he keep
a house and servants in the shire where the bridge is, although
he dwell in another. So, again, every corporation and body
politic residing in any county, or having lands and tenements
there, are inhabitants. So, again, an infant having house or
lands bv descent or purchase. And the husband of a J'eme
covert (f)' Inhabitant is the largest word of the kind (g).
It has been held, that if a new district be added to a city, the
inhabitants of the city generally must repair the bridges within
such district, for all privileges of exemption are taken away by
the words, " every inhabitant," used in a subsequent clause (h).
And, therefore, where the inhabitants of a newly added liberty
refused to contribute to the general rate, a mandanms was
granted to the justices of that liberty for the purpose of com-
pelling them to impose it (z).
(rt) 22 II. 8. c. 5. s. 1.
{b) 2 Inst. 702.
(c) Id. 701.
(d) 22 H. 8. c. Jj. ss. 2 and .3.
(e) % Powell, J. and Holt, C. .1. 2 Lord Raym. 1251.
(/) 2 Inst. 703. See G Ilcp. (iO.
Ifi) 2 Inst. 702. 4. B. & C. 778.
(/() 2 Lord Raym. l2i'J, the Queen v. St. Peter's Liberty in York Justices,
(i) Id. S. C.
Who inha-
bitants with-
in the sta-
tute.
CHAP, vni.] Bridges. 4 201
It has been said, that corporations are rateable to the repair of City or
bridijes togetlicr with the county, where they liave no brid
With regard to the repair of private bridges, the obligation Private
biidges.
(a) 3 G. 4.C. 126. s. 107 and 108.
(6) 7 & 8 G. 4. c. 24. s. 17.
(c) 12 G. 2. c. 29. s. 1.
(rf) 4 Term Rep. 591, Rex v. Essex Inhabitants.
(e) By Bnllcr, J. 4 Term Rep. 595.
(/) 2 Lord Rayni. 1249, the Queen v. St. Peter's Justices in Yoric.
214
Bridges.
[^CHAP. VIII.
Remedies
for com-
pelling the
repair of
bridges.
Present-
ment.
must be borne by those who permit the easement^ on the same
principle as in the case of highways.
This rule, however, is liable to be rebutted in like manner by
evidence that the persons have immemorially performed the
amendments required, or are bound by covenant or agreement
to do so.
The ordinary remedy for a neglect to repair public bridges is by
presentment or indictment. It was early observed, that an
assise of nuisance would not lie for the laches or omission to re-
pair a bridge ; and a distinction was taken between a neglect to do
this repair, and a Avilful damage or obstrtiction, in which latter
case an assise was allowable (a).
And furthei*, no action on the case can be maintained in this
instance, for the fault of non-repair is an injury to all the king's
subjects, and so punishable only by presentment and fine (6).
An attempt, however, was made in modern times to charge a
county in that form of action ; and the plaintiflfs' complaint was,
that in consequence of a bridge being out of repair, their waggon
received an injury. The declaration was demurred to, and Lord
Kenyon observed, that if the experiment had succeeded, it would
have been productive of an infinity of actions. The court also
recognized the case in Brooke's Abridgment, where it is said, that
no action lies, if a highway be out of repair, so that a horse be
mired (c) ; and judgment was given for the defendants (d).
This presentment might be, at the common law, before the
King's Bench, or justices in Eyre, or commissioners of oi/er and
terminer (e). The non-repair may also be presented in the tourn or
leet {f)- And by the old statute of H. VIII., above quoted, if
the bridge be in one shire, and the persons or lands to be charged
in another; or if it be in a city, or town corporate, and the persons or
lands are out of the city or town, the justices of such shire, city,
or town, are authorized to hear and determine any annoyances,
if within the limits of their commissions. And if the annoyance
be presented, they may then make process into every shire of
the realm against such as ought to repair, and do further in
every behalf as they might do if the persons or lands chargeable
were in the same shire, &c. where the annoyance is {g).
The only matter necessary to be presented is, that the bridge
(a) 1 1 H. 4. 88.
(6) Vaugh. 340.
(c) Bro Action sur le case, ])1. 93.
(d) 2 Term Rep. 6«7, Russell v. the M«n of D«von.
{e) 2 Inst. 70 1 .
(/) Ibid.
(g) 22 H. H. t. .}. s. o.
See ant«, p. 53.
CHAP, viii.] Bridges. 215
in question is a ptihlic brido-e, and out of repair, which must
be shewn in the order. However, when it is doubtful who
ought to repair, the advice given in 2 Inst, (a) is said to be very-
good, that an inquiry ought to be made by the grand jury (/;).
The certiorari is taken away from the defendant, but not from No certio-
the prosecutor. Thus, all matters concerning repairing such '^^""
bridges and highways, — that is, higlnvays at the ends of bridges, —
shall be determined in the county, and not removed by cer~
tiorari (c). It is worthy of observation, that this section applies
only to the repair of county bridges ; and, therefore, where a
parish, or private person is charged, it survives, according to
the provision of 5 and (i W. and M., c. 11. s. 6, which enacted,
that where the title to repair should come in question, a certiorari
might issue upon a suggestion, and affidavit to that effect, so as
that the parties prosecuting the certiorari should find t'H'o manu-
captors to be bound in a recognizance, conditional to try at the
next assizes (f/).
We said, that the certiorari was not taken away from the pro-
secutor, and tliis point has been decided on more than one occa-
sion. Thus, where the whole county of Wilts was concerned
in the repair of a bridge, the Attorney-General moved for a
venire to Berks, and his motion was granted as a matter of right
on his part (e). And in a more recent case, which subse-
quently Avent up to the House of Lords from the Court of
King's Bench, the same point was established {f)- It is said,
that 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 that the justices ought to retain the private act
upon which the order is founded (g). Where bridges are repairable
by parishes, we have seen, that the Highway Act takes away
the certiorari, except in cases where the right of repair may
happen to come in question, and the exception also as to the
prosecutor has been mentioned, together with the authorities
upon the subject, in a former chapter (/<).
It is enacted, that no fine for not repairing bridges, and the Fine.
highways at the end of them, shall be returned into the Exche-
quer, but that they shall be paid to the treasurer of the county,
and applied by the justices towards the building or repairing of
(a) 2 Inst. 703.
(6) Andr. 101, 285, Rex v. Middlesex Inhabitants. See F. N. B, 127. (E.)
(c) 1 Ann. Stat. 1. c. 18. s. 5.
(rf) 2 Str. 900, Rex v. Hamworth Inhabitants.
(e) 6 Mod. 191, 307, the Queen v. Wilts Inhabitants. 1 Salk. UC^, case of
Cardiffe Bridge. 1 Lord Raym. 580, S. C. See also 1 Str. 177, 180, 183.
(/) 6 Term Rep. 194, Rex v. Cumberland Inhabitants. 3 B. & P. 354,
S. C. in error.
(g) Burn's Justice, ed. 1820, Vol. I. p. 380.
(/() Ch. VI. p. 88, and see also Ch. VII. p. 187.
210
Bridges.
Q:hap. vin.
Covenant
for not re-
building a
bridge.
Penalties
General
issue.
Remedies in
case of tiie
non-repair
of private
bridges.
such bridges, &c. («). One fine only can be imposed for the
non-repair of a bridge. The Montgomeryshire sessions imposed
a fine of 300/. upon the township of Machynlleth and pa-
rish of Penegoes, for non-repair, and, that fine not being sufficient,
they made an order increasing the fine " by the sum of 200/."
A certiorari was obtained for the purpose of quashing this last
order, and the Court of King's Bench considering that the power
of the sessions was at an end after the first fine, and that they
had no jurisdiction to impose a second, quashed the order (/»).
There might be writs of distringas until the bridge should be
repaired, or a new indictment might be preferred, and a fresh
fine imposed (c).
It has been determined, that an action of covenant may be
maintained against a person who agreed to build a bridge in a
substantial manner, and to keep it in repair for a certain time,
although it M^as broken down during that time by an extraordi-
nary fiood {d).
With respect to penalties, the statute of Anne directs, that
all penalties under the act should be applied to the repair of
bridges and the highways at the end of them (e). Further,
such as act under the authority of that statute may plead the
general issue, and give the act, together with the 22 H. VIII.
c. 6., in evidence^ and if judgment be for them, shall have
double costs {f).
Upon a question between a county and a parish as to the lia-
bility of repairing a bridge, the court refused to compel the inha-
bitants of the parish to allow the county to inspect the parish
books and documents respecting the repair of the bridge (g).
The old remedy for the non-repair of a private bridge was the
old writ de panic rcparando. Thus, if one had a passage over a
bridge, and the person Avho ought to have repaired made default,
a writ might have been obtained against him (A). So, if the
bridge led to a mill, being a private bridge, which A. ought
to have maintained, and over which B. had a passage, the latter
might have had his writ de po?ite reparando (i). And now, at
(a) 1 Ann. stat. I. c. 18. s. 4.
(6) 4! B. & A. 469, Rex v. Machynlleth and Pencgoes Inhabitants, and see ante,
p. 91.
(r) See 4 B. & A, 470, n. Rex v. Old Malton, cited there. So, if for doing a
thing ))roiiibited by statute, tlie party ottending liavc been fined to the king in an
action brought by tiio party, as for not repairing a common street of a town, &c.
it seems, tliat he siiall not be afterwards punisliod by indictment, for tiien lie would
be lined twice for tiie same ofiince. 2 Hawk. 210. s. 4.
(f/) T. U. 750, Brecknock and Abergavenny Canal Navigation v. Pritehard.
(e) 1 Ann. stat. I.e. 18. s. 0.
(/) l<»-s.7.
(^') 8 B. & C. .375, Rex v. Buekingiiamiiiirc Jublices.
(/.) F. N. B. 1-^7. (D.)
(») 2 \\vA. 701.
CHAP. VIII. 3 Ferries. 217
this day, it seems, that an action on the case will lie for such
neglect to repair, inasmuch as it is not a pul)lic, but a private in-
jury; for in the former case, the remedy by indictment is the proper
course to avoid a multiplicity of suits, in the latter, the party
aggrieved can be remuneruted in damages for the inconvenience
or mischief he may have sustained.
Section II. — Of Ferries.
The same principle which compels us to call a bridge, or a
river, a common highway, applies to a ferry, for it is a common
passage, which is no more than a common highway (a). It is
a liberty, by prescription or the king's grant, to have a boat for
passage upon a river for carriage of horses and men, for reason-
able toll {/)). And thus an action will not lie against a man for
not keeping a boat for the ferry, since it would be to multiply
suits, wliich the law will not allow (c). But one who accepts
the grant of a ferry is bound to keep a boat for the public good,
and may be indicted for the neglect, although no action lies {d).
And we have seen, that the owner of a ferry cannot suppress it,
and erect a bridge, without a writ of ad quod damnum (c).
The owner may have an action on the case for a disturbance
of his right. It was said formerly, that an assise of nuisance, or
an action lay (^f). However, the possession of an exclusive
right to ferry from A. to B., will not prevent persons from going
by another boat from A. to C, although C be near B. A pre-
scription to the above effect was proved, and the court were
quite clear, that tlie plaintiff's demand for the enlarged right to
ferry was unreasonable, for the parties were substantially and
not colourably carried over by tlie defendant. Fraud would
alter the case, but there was no pretence for that in the case
before the court {g).
It is no answer to an action by the owner of a ferry for the
disturbance of his right, that the ferryman has neglected his
duty, for such a default does not, ipso facto, destroy the right to
the franchise, which must be impeaclied by scire facias or quo
wq.rranto (Ji).
{a) 3 Mod. 294.
(i) Cro. E1.59J.
(f) 3 Mod. 289, Pain v. Patrick. 1 Show. 243, 235, S. C. 1 Salic. 12, S. C.
Comb. 180, S. C. Holt, 6, S. C. Carth, 191, S. C. See 2 Wils. 58.
(rf) 1 Show. 257. Hardr. 163.
(e) Ante, p. 196. But the court, upon another occasion, refused an injunc-
tion to restrain the defendants from using the plaintift"'s ferry. Hardr. 1G2.
Churchman v. Tonstal.
(/) 22 II. 6. 14.
(g) 4 Term Kcp. 666, Tripp v. Frank.
\h) 6 B. & C. 703;, Peter v. Kendal.
218
Ferries.
QCHAP. VIII.
Custom for
inhabitants
to be ex-
empted
from tolls of
a ferry.
Right of It has been holden, that the owner of a ferry has a right
ferryman. to use the land on both sides of the water for the purpose of
embarking and disembarking his passengers, without having
at the same time any property in the soil on either side*. For
the principle is, that a ferry is in respect of the landing-place,
and not of the water. It is sufficient if the landing-place be
in a public highway. The original owner of the land may
have granted the soil of it, and reserved out of the grant, to him-
self, &c., the right of using the land on both sides for the pur-
pose of embarking and disembarking passengers (a).
The owner of a ferry demised it byparo'l at a certain rent. The
lessee, finding that it did not answer, agreed with his landlord
to be his boatman, and to account for all money received, and
to receive daily wages. This stejD was holden to be a surrender
by act and operation of law of the lessee's interest in the ferry (6).
And it should, seem, that such a letting, being of an incorporeal
hereditament, ought to be by deed (c).
A custom that the inhabitants of a certain vill should pass
over a ferry toll-free has been holden good. Such a custom may
have a reasonable commencement, as that the inhabitants of the
town might have been at the charge of procuring the grant, and,
in consideration of that, that one man should find the boat, and
enjoy the tolls, but that the inhabitants should be exemjDt from
payment. The interest of the ferryman would be encumbered
with this discharge (d). If toll Avere extorted from an in-
habitant under such circumstances, he might have an action
on the case, because there would be a special damage (e).
But in the particular instance which gave rise to these reso-
lutions, judgment was given for the ferryman, the defendant,
because he was charged, in an action on the case, for not keep-
ing a boat, which, being a general, and not merely a particular
damage, was held to be punishable only by indictment (^ ).
Ferry not ^^ ^^^ been determined, after great consideration, that the
rateable. tolls of a ferry arc not rateable where the owner does not reside
within the parish or township. It was said in support of the
liability to be rated, that a ferry was real property, that it was
local in its nature ; but it appearing, that the lessee of the tolls
* Overruling a passage in Savil. 1 1 to the contrary. Com. Dig. Tit. Pis-
cary, who cites the same passage.
(a) G B. & C. 703, Peter v. Kendal. Savil. 11.
(b) Ibid.
(c) Id. 708. By Bayley, J. Whether a ferry be demandable in a jiracipe
quod reddnl? Qu. And see 12 East. 334', n. It should seem not, after the de-
cision in G B. & C, wliere it was held, tliat the land on either side of the water
need not belong to the owner of tiie ferry.
(r/) I Siiow. 267. Observations of Holt, C. J.
(e) Ibid.
( f) Id. 256, Payne v. Partridge.
CHAP, viir.] Ferries. 219
had no land or visible property in the parish, the court held,
that his jiroperty in the ferry was not within the statute of
Elizabeth, for to make property rateable, it must be the subject
of occupation, and must be visible and tangible (a). " All
the cases of tolls held rateable," said Lord Ellenborongh, " have
been where the tolls arose out of the use of land." (J))
*^* It may be added to this, that a way-have is rateable Way-leave,
where the parties enjoying it have the occupation of the ground, ^''''^" '■^'^-
but not so where there is a mere privilege of using the right of ^ ^'
passage. Upon principle, it resembles, in this respect, the right
of common. A person who had certain way-leaves, or liberties
of passage, over lands, which way-leaves, &c., he rented for the
carriage of coals to the river Wear, was rated in respect of such
privileges, and, on appeal, the sessions confirmed the rate. But,
as in this case he had a mere right of passage, which is an
easement, and not a grant of the profits of the land, the court
held, that it could not be the subject of a rate (c). But where
the appellants, in pursuance of a lease, made waggon-ways,
erected a bridge, and railed off the ways, so as to maintain an
exclusive possession of them, and built two houses for their
servants, the court of King's Bench considered that the liability
in this case Avas very different from that above cited, for here
was clearly an occupation of the ground, and a possession of
property rateable to the relief of the poor. The court further
said, that they could not enter into the question, whether the
Dean and Chapter of Durham (who had granted the lease) had
power to grant any thing more than a mere way-leave, for if a
disseisor obtain possession of land, he may be rateable as the
occupier of it. The order of sessions was, therefore, confirm-
ed {d\
(a) 12 East, 330, Rex v. Nicholson.
(6) 12 East, 336.
(c) 2 Term Rep. 90, Rex v. JoUifre.
id) 7 Term Rep. 698, Rex v. BeU.
320
Indictments
for non-re-
pair of
highways.
Nuisances
therein, &c.
Against a
parish.
CHAPTER IX.
Of Tjidictments and Pleadings generally on the Subject of Ways.
It is our purpose in this chapter to speak of the indictments
which may be maintained against a parish for the non-repair of
highways, against a township, and against persons liable to the
obligation of repair by reason of their tenure, and also of indict-
ments against offenders who obstruct the highway wilfully, or
otherwise. Indictments for the non-repair of bridges will also be
noticed, and the pleas, or defences, to all these charges will be
discussed at length.
We shall then proceed to the consideration of declarations for
the disturbance of private rights of ways and private bridges,
and of other matters connected with the mode of proceeding when
those rights are interrupted.
The pleadings will then be introduced. The manner of stat-
ing a public highway, and of shewing a title to a private way,
whether it be by prescription, by grant, cr of necessity, will be
laid before the reader, and the chapter will be concluded by some
instances of replications and rejoinders in answer to the claim of
right of way when pleaded, as is above mentioned.
First, as to indictments for the non-repair of highways, they
are most commonly preferred against the respective parishes in
which they are situate. The parish is burthened, in the first in-
stance, with the liability, as has been shewn in a former
chapter («), and Avhere it is not knoAvn in particular that any
other parties are in reality answerable, the parish is made the
subject of the indictment ; and if there be any substantial defence
to the charge, it is then disclosed upon the trial under the general
issue, or by special pleading.
It is with the form of indictments that we have more especially
to deal in this place.
The ordinary charge upon these occasions is, that there is a
common king's highway situate in a certain county, and that a
certain part of it lying in the parish indicted, describing it par-
ticularly, is out of repair, so that the king's sul)jects cannot use ik
as they ought, and, in conclusion, it is alleged, that the inhabit-
(«) Ch. VI.
CHAP. IX.] Pleading.
ants of the parish arc bound to amend this way when necessary.
The venue shouhl l)o laid in tlic county where the ruinous road
lies. The day is iuunaterial, so as it be before the caption of the
indictment (a). There is a distinction between public and pri-
vate ways in this respect, that the former need not be alleged to
have existed from time immemorial ; whereas, if a prescription
for the private riglit be pleaded, such an allegation must be made.
Where a plea was demurred to on account of the omission of the
words, " from time immemorial ", the court said, that it was
quite sufficient to state in a compendious way that it is a highway,
and that the instances of indictments were decisive (J)). So,
again, in a case where it was decided, that the public had a right
to use the cranes on public quays, the plea did not allege, that
Smart's Quay, which was said to be a public, open, and lawful
quay, had existed from time immemorial ; but the court said that
the quay was in this respect similar to a highway, which might
be described as, " a public and common king's highway ", with-
out saying, immemorially; and judgment was given in favour of
the plea upon demurrer (c). So, again, where to trespass it was
pleaded, that the place was a common highway for all the king's
subjects, paying a certain toll, without saying, immemorial, here
the omission of the word " immemorial" saved the plea, for it
being objected that the allegation was inconsistent. Wood, Baron,
observed, that it might have been a highway created by act of
parliament ()
This is the ordinary method of proceeding when a road is Imlictment
found to be ruinous and out of repair, but a particular division agii'nst. a
of a parish, as a hamlet, &c., may be the subject of such an obli- t"^^'"**li'P»
gation, and in that case the indictment is somewhat different.
The highway is set out as mentioned above, but it is described
as lying within the particular division or precinct at L., within
the constabulary of A., for instance, in the parish of B., and
that it is in need of repair. Where the obligation lies upon the
inhabitant of a particular district, as in the case before us, it
must be especially mentioned, whether by custom, prescription,
or legislative provision, and, therefore, the indictment proceeds
to allege that within the parish there have been divers townships
from time immemorial, of which L. is one, and that L. has al-
ways repaired the M-ay, which would otherwise be repairable by
the inhabitants at large, and also the ruinous part of the way,
the subject of the indictment, and, consequently, that L. is still
bound to do such repairs as may be necessary. Another count
may be added, stating that the several townships have been ac-
customed (if such be the case) to amend their own highways
respectively, and independently of each other.
In this indictment the prescriptive liability to repair is men-
tioned, and for want of such an averment a judgment has been
reversed upon error (c). Where the charge was, that the inhabit-
ants of the division of Great B. ought to repair when ne-
cessary, it was determined, upon a writ of error from the sessions,
that the judgment must be reversed ; for it ought to have been
shewn, that these inhabitants had repaired, and not merelv that
they immemorially ought to repair, as the indictment stated {d).
So, where the defendants were indicted for the non-repair of a
way to a chufch, but there was no allegation of the reasons for
their liability, either by tenure or otherwise, the indictment was
holden to be bad (e).
(a) Goilb. 59, the Lady Gresliam's case. S. P. Cro. Car. 584, Leyton's
case.
{b) 7 G. 4. c. 64. s. 20.
(c) Andr. 276, Rex v. Marton Inhabitants.
(rf) 5 Burr. 2700, Rex v. Great Eroughton Inhabitants. S. V. 2 Term Rep.
514, Rex V. Link-field Street in Rygate, eited.
(r) 2 Show. 201, Rex v. Mayor and Burgesses of Warwick.
q2
228 Pleading. j^chap. ix.
Again, it was said by a learned judge, that "where the indict-
ment is against a township, or particular persons, it must allege
that from time immemorial they were bound to repair ; which
shews that the particular allegation is not necessary where they
are bound by the general law." (a) And where a hamlet was
charged, without saying how, the court directed the judgment to
be arrested, observing, that the objection was to the substance,
and not merely to the form {b).
So, where the inhabitants of an extra-parochial hamlet were
indicted, but it was not stated, that they were immemorially bound
to repair, nor that the hamlet did not form part of a larger dis-
trict, the inhabitants of which were bound to repair, the indict-
ment was holden bad, and the judgment reversed (c). As the
hamlet was Avithout the parish, it seems also, that a consideration
ought to have appeared, according to the rule which is establish-
ed, when one parish seeks to throw the burthen of repair upon
another.
We have seen, that no consideration need be shewn for charg-
ing a particular division of a parish with repair (d) ; and although
in one case {c), a consideration did appear on the face of the re-
cord, yet " the object of the form of the plea in Rex v. Eccles-
field Qthe case mentioned], probably was to allow greater latitude
to the evidence in support of it, and also because possibly the
road indicted in that case was not an immemorial highway." (_/)
The advantage gained, therefore, by alleging that each sub-di-
vision has been accustomed to repair independently of the rest,
is, that evidence may be admitted of the general custom (g). If
there be any exceptions to this general custom, however, these
also should be specially alleged (A).
And so it is in the pleading or statement of exceptions, if any
road be exempted out of the general course of repair. As where
the indictment charged the corporation of Liverpool with the re-
pair of highways within their township, except such as ought to
be repaired according to the form of the several statutes in such
case made, but it failed to shew that the highway indicted was
not within any of the exceptions. Judgment was therefore ar-
rested (?).
(n) By Ashhmst, J. 2 Term Rep. 111.
\b) 2 Term Rep. 513, Rex v. Penderryn Inhabitants. See also 2 Wms.
Suuiul. 158, 1). 9.
(c) 2 B. & C. 190, Rex v. Kingsmoor Inhabitants.
(d) Ante, p. 79.
(e) Rex V. Ecdesficld, 1 B. & A. .'^4.8.
(/) By Abljott, C. .1. !■ B. & A. 624..
(;?) 2 Stark. Crim. Pleading, Vol. II. p. 698, in the note.
(//) Ibid.
(i) Ji East, 86, Rex v. Mayor, &e. of Liverpool.
nurcB.
CHAP, ix.^ Pleading. 229
Anotlier form of indictment is to charge a particular ])erson, Indictment
or particular individuals, by reason of his or their tenure; and in against a
this case the same mode is pursued as in tlie proceedings against F''^"" ''«-
a parish, only that instead of stating the liability of the parish at
the end, it is alleged that //. B., late of • ■, ought, by reason
of his tenure of certain lands, situate, &c. to do the needful re-
parations. The indictment must be by reason oi tenure {a).
Although it %\'as formerly holden, that tlie word " his " was
indispensable in the expression, by reason of his tenure {h), this
is not so at present. Indeed, the case in Noy was overruled not
many years afteru'ards, when the court said, that the precedents
were generally without the word, sues (c). And in another case,
the court recognized the case in Ventris, and observed, that if,
in the matter before them, it were needful to use the pronoun, it
was impliedly averred, by subsequently calling the house, by
reason of which the defendant ought to repair, his mansion
house id).
The words, " late of," &c. are usual, and for want of describing
the defendant to be an inhabitant of any place, an indictment for
non-repair of a highway was once quashed (e). It must be
shewn, also, that the party is liable by reason of tenure of some
property, as a house, &c. ; for thus it appears how he has become
chargeable. So that where an indictment for not paving the
highway omitted to say, that the defendant \Aas seized of any
house, or that he had any tenement, it was quashed for uncer-
tainty (/).
It is said in the old books, that if a man be bound to repair a
way by reason of tenure of such land, title of prescription need
not be alleged in a presentment or a plea, because a jirescription
is implied in the estate of inheritance in the land, but that where
one is bound by reason of his residence, a prescription must of
necessity be alleged {g). It follows, that the estate which the
(rt) Sty, 4.00.
(6) Noy. Rep. 93. It was said, that another might have tlie land. Latch.
206, semb. S. C. See 5 H. 7. 5.
(c) 1 Ventr. 331, Rex v. Fanshaw.
{(l) 1 Str. 187, Rex v. Corrode. 1 1 Mod. 302, S. C. See 2 Wms. Saund.
158, n. 9, and especially the observations of Mr. Sergeant Williams on Sty. 400,
which also see.
((■) Noy, Rep. 87. Sir Richard Lucy's case. Where one was indicted for
encroaching upon the highway, it was held no objection, because it was not ex-
pressed of what place he was, ibr process of outlawrj- lay not against him, but dis-
tress. Cro. El. 148, Lord Dacre's case. The statute of additions only extends
to cases wherein process of outlawry lies. Per Lee, C. J. 1 Wils. 246.
(y) Godb. 400, Sergeant Hoskin's case.
(g) Keilw. 62. Sty. 108, Rex v. Spillev. But see 1 Sid. 464, Rex v.
Staughton. 2 Wms. Saund. 158, n. 9, reco^'nizing the case in Keilway as good
law.
230 Pleading. Qhap. ix.
occupier has in tlic lands charged is immaterial (a). Inliabitants
as such, cannot hold lands by tenure, and, therefore, an indict-
ment charging the inhabitants of a town, by reason of their
tenure of certain lands, with the repair of a bridge, was holdcn
bad (6).
An indictment charged an individual with the repair of a
bridge by reason of liis being the owner and proprietor of a ccr-
lain navigation, and it A\'as contended, that these words were
equivalent to ratione lenurcc. The latter expressions, however,
were said by Lord Ellenborough to embody the condition upon
which the land is granted, by the technical sense given to them.
But ownership at the utmost implies only estate and quantity
of interest. Therefore, as a person could not be chargeable to
the repair of a bridge, merely from tlie circumstance of his being
the owner of a navigation, and as the allegation of ownership
was the only charge in the indictment, the judgment of the
quarter sessions Vv'as reversed (c).
Against We do not find any indictments against trustees of a turnpike
trustees. road for non-repair ; because, although they may be and are di-
rected to repair roads out of the money they receive for tolls,
such tolls are only an auxiliary fund in their hands, the parish
or to'vnship, &c. being primarily liable. And by Abbott, C. J.
in a late case, " It is strange, if the trustees are liable, that in
the midtitude of turnpike acts, almost all of which contain similar
])rovisions to the present, no case has yet occurred, of any indict-
ment being preferred against persons in that situation." (d)
With regard to presentments, they must allege the offence to
have been done against the form of' the statute. So that where there
was a presentment by a magistrate under 13 G. 3, of a nuisance
in a highway, which stated, that the magistrate had presented
/;?/ virtue of an act, &c., omitting to conclude, "against the form
of the statute," it was moved to arrest the judgment, and the
court made the rule absolute, for, whatever the offence might be,
they said, it was only presentable as an offence against the act ((?).
And by Lord Ellenborough, C. J., the words " by virtue of the
act," (iCc. only refer to the magistrate's power to present, and not
to the offence presented (j).
(a) 1 Salk. .S57. 7 Mod. 65. Sec 3 Salk. 1 82, and Sir W. Evans's note
iijion tliat passage.
(b) 2 B. & C. 166, Rex v. Machynlleth and Penncgoes Inhabitants.
(c) 1 M. A S. '1.S5, Hex V. Kcrrison. It seems, that an indictment founded
(ipnn a private act of parliauienf, should set fort!) tlie act. 1 M. & S. 4'39, by
Abbot, arfjiiciido.
(d) 2 IJ. &. A. l«o. Sec ante, p. 77.
(c) 13 Kasl, 258, liex v. Winter.
(/) Id. -idO.
IX.]
Pleading.
231
Before we s})eak of indictments respecting bridges, it may not
be improper just to mention some of tlie answers which are
given to the charges for non-repair above mentioned.
It would be a good plea in abatement to say, tliat it is not Plea in
shewn by the indictment, of what vill the defendant is. The abatement,
court expressed themselves to this etiect, where the defendant
was alleged to be of the parish of Shepey, there being four vills
in the j)arish (rt), or that the road has been set out in the indict-
ment with such uncertainty, as that the charge M'ould apply to
other roads (6). But where the defendant pleaded in abatement,
that there were four vills in the parish of Shepey, and it was
not shewn in which of the vills the highway lay, the court were
against him upon this point (r).
Under " not guilty," the parish can do nothing except to shew Pieas to in-
that the way is in repair, that it is not a highway, or that it dictments
does not lie within tlie parisli : if they would cast the burden ^'"^ iion-rc-
upon others, tliey must plead specially, because their obligation 1'^"^'
is of common right ; but a private individual, or such as are not
bound of common right, may be relieved under the general issue
only ; but should they think fit to deny their obligation, these
latter persons must then go further, and shew who, in particular,
ought to repair (<■/). It may be added, that the plea of not guilty
will suffice for the parish where an act of jmrliament casts the
burden on others (e).
It may just be observed, before we proceed to illustrate the
foregoing positions, that if a highway be described too indefinite-
ly in an indictment, advantage of the error can only be taken by
plea in abatement. It was alleged, that there was a highway
leading from Hammersmith towards and unto Uxbridge ; and,
uj)on this, it was said, that the road had been as well described
as the road to London, for the description would apply to many
other roads. But Lord Ellenborough answered, that this gene-
rality of statement was a subject for a plea in abatement, since,
in fact, the road in question did lead from Hammersmith to
Uxbridge (/')•
With respect to the plea of not guilty by the parish, it was Not guilty
said, concerning the amending of Leather-lane, by Holt, C. J., ^' rarish.
that if you plead not guilty, it goes to the repair or non-repair ;
but if you will discharge yourself, you must do it by prescrip-
(«) Say. 119, Rex v. Blower. See 2 Inst G69.
(ft) 1 Stark. 358.
(c) Sav. 119, Rex v. Blower,
(d) 2 Wnis. Sauiicl. lo[>, ii. 10. 1 Sir. 181, 181.
(<■) 3 Canipb. 222.
(/) 1 Stark. 357, Rex v. Hauimei smith Iiiliabitaiiu.
232 . Pleading. [cfiap. ix.
tiou, or ratione teiiurce (a). And this position has been uniformly
adopted. When, however^ the Inirtlien of I'cpairing is trans-
ferred from the inhabitants of the parish by a public act of par-
liament, to whicli all are supposed to be })rivy, and of Avhich all
are sup])osed to have cognizance, the rule Avas said by Lord El-
lonborough not to apply (Zi). But the parish may also prove
that the way is not a highway, or not within the parish (c) ;
for the defendant may controvert every thing on not guilty,
whicli the prosecutor is bound to prove {d) ; and Pratt, C. J.
said, that according to his notes of Rex v. Hornsey, H(tlt, C. J.
had declared, that the defendants might negative the high\\'ay (e).
However, according to the report in Carthew, the inhabitants
of Hornsey pleaded not guilty ; and Holt, C. J. held, that the
fact of the way not being a highway coidd not be given in evidence
under the general issue ; but the other judges were of a contrary
opinion {f)- Yet if the parish lay the burden upon others in
pleading, they admit the highway, and so, of course, cannot
disprove it at the trial {g) ; and if they deny their liability gene-
rally, they must name the persons, &c. who are bound to repair (h).
Various pleas may be put on record on behalf of parishes,
as that they are not guilty as to part of the road, and for the
rest, that particular individuals are bound to the repair of it ;
that the parish consists of several townships, each of which is
bound by custom to repair its own road, &c. (?') With regard
to the last plea, Mr. Sergeant Williams has these observations :
" The way of pleading the prescription, |^that is, for each town-
ship to repair,] seems to be, that each district claiming an ex-
emption from repair should state in a separate plea to the indict-
ment, ' that the parish has immemorialh^ been divided into a
certain number of districts or townships called A. B. C. (naming
them) ; and that the inhabitants respectively of the several dis-
tricts of A. and C. (the district in which the highway lies) have
immemorially been used and accustomed to repair and amend
the several and respective highways, situate and lying in their
said res])ective districts, independent of each other ; and that
the said part of the said highway in the said indictment men-
tioned lies in that part of the said parish called the district of
C. ; and by reason of the premises, the inhabitants of the said
(o) 1 Mod. 112, Rex v. St. Andrews. 3 Keb. 301, S. C. S Salk. 183. 1
Ventr. 250. S. P. Comb, 312, Rex v. Terrel. Id. 39C, Rex v. Iieton Inha-
bitants. 3 Campb. 223. By Lord EUenborough.
(b) 3 Catnpb. 223.
((•) 1 Sir. 177, Ilex v. Norwidi Inhabitants, Fortescue, J. contra.
(d) By Eyre, J. Id. 183.
(e) Id. Ibl., Rex V. Hornsey, cited. 1 Show. 291. S. C.
(/) Carth. 212, Rex v. Hornsey Inhabitants.
(a) 1 1 Mod. 273.
(h) Carth. 213. ■!• Mod. 38, S. C. Fort. 254, S. C. 12 Mod. IS, S. C.
Holi, S3H, S. C. I SIkjw. 270, 2f)l. S. C.
(i) See 2 Stark. Criminal Pleading, Vol. II. p. 798, Sa:
CHAP. IX.] Pleading. 233
district ought to have repaired the same independent of the in-
liabitants of the said district of A. in the said parisli. And tliis,
&c. wherefore, &c.' " The prosecutor tlien traverses the prescrip-
tion, and issue is taken upon it («).
But wliere the iidiahitants of a parish put in a plea, stating
that the parish from time immemorial was divided into seven
townships, that such townships had repaired, inde])endent of
each other, the higlnvays situate respectively within them ;
that part of the highway indicted, and said to be ruinous, was
in the township of G. B., and tliat the residue was situate
Avithin the township of Little B. ; and, further, that the respec-
tive townships of Great and Little B. ought to repaii-, &c. there
was a special demurrer, because the plea did not set forth or dis-
tinguish what part of the highway alleged to be ruinous lay
within the township of G. B., and what part within Little B.
The court were of opinion that the demurrer was good, inasmuch
as the parishioners must necessarily have known the limits of
their several townships ; and they Avere bound to shew with
certainty the parties liable to repair any part of the way in-
dicted, and in what right they were so bound. The counsel for
the defendants, however, had leave to amend before argument (6).
It is -worthy of observation, that the parish when they seek to
throw the burden upon others in their plea, ought not to traverse
their obligation, because it is matter of law ; but a particular
person, if he plead specially (although such pleading is unne-
cessary) to the indictment, must in that case traverse his own
liability, although lie shew in particular the parties whom lie
considers to be responsible (c). A parish may also plead that
another parish ought to repair, but then a special consideration
must appear upon the record. The law upon this subject has
been fully stated in a former chapter (d).
With regard to pleas by a private person, we have said, that Pleas by in-
under the general issue of not guilty, he may shew his non- ilividuals.
liability to repair, because the charge against him is not of com-
mon right (f). And so it is, where a particular division of a parish
is indicted, for it is against common right to proceed against a
district (./")• However, if such parties plead specially, it is not
enough that they traverse the right to repair, but it must be
(o) 2 Wms. Saund. 159. (c) n. 10. Such an issue was tried in 1800, before
Heath, J. at Hereford, and the jury established the prescription. Ibid, citing Ilex
V. Leominster Inhabitants.
(6) 1 1 East, 304, Rex v. Bridekirk Inhabitants.
(c) 2 Wms. Saund. 169. (b) n. 10.
(rf) Ch. VI.
(e) 1 Str. 180, 184. 3 Salk. 183.
(/) 2 Wms. Saund. 159. (a) n. 10, Rex v. Wliealen Aston.
234
Pleading.
[cilAP.
Indictments
for ob-
structions,
&c.
shewn also who ought to do that duty(«); and, moreover, if
they so plead, and shew who ought to repair, they must traverse
their own liability : the allegation and the traverse are neces-
sary (b). And, as in the case of the parish, if there be a special plea
that another ought to repair, the highway is admitted. So that
where the defendant pleaded that the inhabitants of D. ought to
repair the way, without this, that he the defendant ought, and
he then desired to give evidence, that the way was not a high-
way, the court held that he was concluded by his plea, since he
had confessed the highway (c). Where one was presented for
not repairing a highway by reason of the tenure of lands, which
it was alleged he had inclosed and encroached, and pleaded that
others ought to repair, without this, that he ought to repair, bi/
reason of t outre, his plea was holden good, although it was con-
tended, that the encroachment should have been traversed. For
the principal matter was his alleged liability by tenure ; and if
he had traversed his obligation to repair by reason of encroach-
ment, he had traversed a matter of law, which Avould have been
bad pleading (f/).
There are other indictments against persons in regard of higli-
ways, besides such as are presented for non-repair. As for
obstructions, on which occasion the act of obstruction complained
of must be stated accurately. A presentment was made at the
leet, that the defendant had diverted the queen's highway, and
it was held void, because a highway cannot be diverted, (the
word divert rather pointing towards the diversion of a water-
course, which may be,) but may be obstructed or stopped (e).
It is a common form to use the words, " with force and arms "
in an indictment of this kind, but they are not necessary {f)- And
by the new act, no judgment upon any indictment or informa-
tion for any felony or misdemeanor shall be stayed or reversed,
whether after a verdict or outlawry, or by confession, default, or
otherwise, for want of the words, " with force and arms." {g)
Again, there may be an indictment for encroachments on the
highway (//). And so again, there may be indictments for nuisances
to the highway, by carrying on improper trades near it, &c. As
where one erected a tallow furnace across the street of Denmark
House, in the Strand, it was found to be a nuisance {i). In an
(a) 1 Sid. UO.
\b) 2 Wnis. Saiind. 159. (b) n. 10.
■' \r) 1 1 Mod. 273, the Queen v. Brown.
{(l) 2 Saund. KiO, Ilex v. Stoughton.
((■) 1 And. 231', Agmondesham v. Cornwallis.
(/) Sec Stat. 37 II. H. c. 8. I'oiili. 20G, Ilcbboinc's case.
In) 7 Ci. c. (it. s. 20.
(/() See Cro. I''l. 231, Chambers and Johns,
(t) Cro. Car. 610. Tohaylc's case, cited there.
(HAi'. 1X.3 Pleading. 235
indictment of this sort, it is sufficient to lay tlie nuisance to have
been committed near the liiglnvay. The defendant was indicted
for this offence, and it was hxid to have been committed near the
liigliway, and near several dwelling houses. It Avas objected,
that, as the pleading did not state the nuisance to have been done
in, but only near the way, it was insulHcient ; but the court
said there was a nuisance to such as were in the highway, and
that the indictment was good in this respect («). So again,
Avhere the indictment laid the offence to have been " at the parish
of Twickenham, near the common highway," not saying in : it
was held that this method of pleading was sufficient (6).
It was held, before the making of the present highway act, that Indictment
an indictment would not lie for the non-performance of statute f"'' "°^ 1'*^'"
duty, there being another remedv. And upon a case of this kind, '"^'"!"^^, ,
, ^ 1 ,, , P , 1 -^ • 11 ^ 1 r J- statute duty.
the words " being then and continually thereafter surveijurs 0/
the hig/nvaj/s, &.c." sufficiently alleged the prosecutors to be sur^
veyors (c).
The ordinary plea to these last mentioned indictments is, not Pleas.
guilty, but other pleas may be adopted where necessity requires.
To an information against five persons for obstructing a higliway,
they pleaded a writ of ad quod damnum, and inquisition thereon,
without this, that they inclosed and stopped it with hedges ad
commune nocwnenfum ; and it was resolved that the plea was not
good, because it did not go further and say, that the king's licence
was actually obtained ; for the writ issued to inquire, whether it
would be to the damage, &c. if the king should grant such licence
to stop the way((/). Where there was an indictment against a
man for not working towards the repair of the highways ; and
shewed that six days were appointed by the justices, but that
the defendant did not come within any of the six days, it was
holden bad, for want of setting out the particular days (e).
n lion- re
Having considered the indictments against parties for the non- Indictments
repair of highways, in the ordinary sense of that term, together '^"' """■
with the pleas which are applicable on such occasions respectively, Ij'i!^^],".^
we proceed to say a few words on the subject of indicting bridges. ^
And here it is to be observed, that, as in the case of common
highways, the parish, in which each road is situate, is generally
the subject of an indictment, so the county where the bridge is
which needs reparation, must be resorted to, unless it be known
that the burthen of repair lies upon others.
(a) 2 Str. 686, Rex v. Pappineau.
(6) 1 Burr. 333, Rex v. White and Ward.
(c) 2 Burr. 832, Rex v. Boyall.
((/) Cro. Car. 266, Rex v. Warde and Lyme.
((•) 1 Salk. 357, the Queen v. Kime. 2 Lord Ravm. 8bS, S. C. See now
the hiyliwuy act, 13 G. 3. c. 78.
236 Pleading. []chap. ix.
The indictment alleges, that the bridge in question is a com-
mon king's liigliAvay ; and that it is in a ruinous and decayed
state, so that the public cannot use it as they have been accus-
tomed, and it is then alleged, that the inhabitants of the county
are bound to do the necessary repairs ; or, if the prosecution be
against an individual by reason of his tenure, that he is on that
account, liable to the repair alluded to.
The usual description of the bridge is, "a common bridge,
commonly called ■, lying and being in the parish of B., in
the county of E., in the common king's highway." («) Where
an indictment stated the bridge to be a common bridge, but did
not shew that it was in the highway, it was considered by Rolle,
C. J., to be suittcient, without the addition of the latter allega-
tion (6). The county where the bridge is situate must be
mentioned ; and for want of this, an indictment against a person
for not repairing ratione tefiurce, Avas quashed (c). And the same
principle prevailed where the indictment stated, that an ancient
bridge, within the pariihes of Blachynlleth and Pennegoes, was
out of repair, and that the inhabitants of the said parish of Pen-
negoes, and the inhabitants of the said toivn of Machynlleth were
liable, by reason of the tenure of their lands and tenements,
without alleging that the parishes before mentioned were within
the town. Here was a fatal defect in the indictment for not
making the inhabitancy of the persons liable to repair correspond
accurately with the place where the bridge was alleged to be si-
tuate ; and the judgment of the sessions was reversed for this ob-
jection (rf). The kind of bridge should also be expressed, as
Avhether it be a foot or horse bridge, &c. Thus, the usual form
is to say, that the king's subjects may pass and repass at their
free will and pleasure, with horses, carts, and carriages.
And where an indictment failed to shew the kind of passage
which was claimed over the bridge indicted, it was quashed, upon
an exception taken, for this reason (e).
In another case, also, the court expressed a strong opinion to
the same effect, although they did not quash the indictment,
then under their consideration, upon that ground (J").
If the words, " at their free Mill and ])leasure," be used, care
must be taken to sustain that allegation by tlie evidence. For,
(«) See Stark. Criin. Pleading, Vol. II. p. 701.
(b) Sty. )(»S, Hex v. Sir Henry Sjiiller. See 1 Salk. 339. (J Motl. 255. 2
Lord Kaym. 1 174.. Holt's eases, 129.
(r) Sty. 108, Rex v. Spiller.
(f/) 2 B. & C. lG(j, Hex V. Machynllctli and Pennegoes Inhabitants.
(e) Stv. 108, Hex V. Spillcr.
(/ ) l" Salk. S59, Keginu v. Saiiilliill. S. C. 2 Lord Rayni. 1 17d.
OHAP. I X.J Pleading. 237
where there was such a description of the right, and it turned out
at the trial that the bridge was hicked, except in times of Hood,
Lord EUenborough said, that the evidence disclosed a limited
riglit only on the part of the public ; and that the indictment,
which set out a riglit without limit or qualification, could not be
supported (c/). And where tlie indictment charged, that a bridge
Avas a public carriage bridge, and also for the king's subjects to
pass and repass on foot, but it appeared, upon the evidence, that
the bridge was not a carriage bridge, although it had been used
by passengers on horseback and on foot, it was holden that the de-
fendants could not be convicted {h).
But where it appeared, that the bridge indicted was open at all
times to carriages, &c., an averment, that it was used by all sub-
jects, at all times, &c., was held good, although it was proved,
that the public used it on occasion of floods only, for it might
have been used at all times (c).
Moreover^ the bridge must be alleged to be ruinous and out of
repair ; and an indictment was quashed for this amongst other
errors which were moved (d).
It was objected, in an old case, that the quantity of the road on the
bridge out of repair ought to have been shewn, that is, so many feet
in length, and in breadth ; but the indictment having stated, that
half the bridge was in need of repair, the court overruled the ex-
ception [c) ; and according to the form of modern precedents, it
does not now seem to be necessary to state the length and breadth.
There was an indictment for not repairing three public bridges ;
and the words were, " usque ad pontem de Harford ad exteriorem
partem rivi." The chief justice considered, that the farthest
bridge was included in these expressions, inasmuch it was said
to extend ad exteriorem partem rivi{f)-
If the indictment be against a person for non-repair by reason
of his tenure, it is the safer course, in general, to allege, that the
bridge has existed immemorially. But if the bridge has been con-
stituted within the time of memory, or altered or enlarged, as from
a foot into a carriage bridge, &c., it will then be improper to state
the burthen of repair as by prescription, although the original li-
ability to repair pro rata, still continues. The inhabitants of the
West Riding were indicted for not repairing a public carriage
(n) 4 Campb. 189, Rex v. IMarq. of Bucldngham.
(6) Stark, on Ev. Pt. 4. p. 316, Rex v. Lancashire Inhabitants.
(c) Ry. & M. 144, Rex v. Devon Inhabitants.
((/) Godb. 346, Bridges and Nicholls's case. Another error was, for not saying
tliat the bridge was over a water, but this is no ground at tliis day for quashing an
indictment.
(e) 1 Salk. 369, Regina v. Sainthill, S. C. 2 Lord Raym. 1 174.
(/) 1 Str. 177, 180, Rex v. Norwici Inhabitantes.
238 Pleading, [^chap. ix.
bridge. They pleaded that certain townships liad immemorially
repaired;, &c., and issue was joined. It appeared in proof, that
this bridge had been originally a foot-bridge, that it had been en-
larged to a horse-bridge by the townships at their expense,
and, at length, to a carriage -bridge. The judge thought that
the evidence did not support the issue, for the proof was, that the
carriage-bridge had been erected within time of memory ; but
the jury found for the Riding. The court granted a new trial («) ;
and by Bullcr, J., " where a party is bound to repair a foot-bridge,
he shall not discharge himself by turning it into a horse or car-
riage-bridge, but still he shall only be bound to repair it as a foot-
bridge, that is pro rata ; but otherwise the county are bound
to repair all bridges of public utility." (b)
As we have seen, the proper way of charging a party under
these circumstances, is, by reason of his tenure ; and, therefore,
Avhere Sir H. S. was said to be bound to repair by reason of his
manor, the indictment was holden insufficient, for want of shew-
ing that he was bound by the tenure of his manor, for it did not
appear,, by that mode of pleading, that he was possessed of the ma-
nor (c). Clearly, then, if the charge were, that one ought to re-
pair, without making any mention at all of the tenure, it would
be bad (d), if it were intended to prove a liability of that nature.
It is no objection to an indictment which charges several with
non-repair, that one only is found liable m maimer and form as
is supposed by the said indictment. For each may be bound to
repair for their respective lands ; and contribution may be had pro
rata. And so it was adjudged in an old case (e).
Against a There may also be an indictment against a parish for not re-
pansli. pairing a bridge; and here, again, if the bridge have not existed
from time immemorial, a prescriptive liability must not be alleged.
To an indictment against the county of Surrey, it was pleaded,
that the said bridge had been immemorially, and still ought to
be, repaired by the inhabitants of F. parish. The original bridge
was a small wooden bridge, but this having been destroyed by
fire, a much larger bridge of brick had been constructed, and it
appeared, that although the parish of F. had always repaired the
old, the trustees of the high road had exclusively maintained the
new bridge. Lord Ellenborougli then inquired, how it could be
made out that F. parish had immemorially repaired the said
bridge mentioned in the indictment, and no sufficient answer
having been returned to this objection, there Mas a verdict
(a) 2 East, 853, n. Rex v. Yorkshire West Riding.
(/>) Id. 354., n.
(c) Slv. 108, Rex V. Sir Henry Si)iller.
(d) Godl). 34.(;.
{e) I Ventr. 331, Rex v. Sir Thomas Fanshaw, See 27 Ass. pi. 8. Bro.
Prescri|ition, pi. 4-9, citing S. C. IJro. Nusanoe, pi. 24, citing S. C. And see
also 14 I''nst, :J48, Itex v. Ma3'or, &c. of Stratford-upon-Avon.
IX.]
Pleading.
2TO
against the plea («). So again, wlierc an indictment alleged that
tlie bailiff's and freemen of Kingston had immemorially repaired a
bridge, but it turned out, that the otlice of bailiff was compara-
tively of modern creation, it was holden, that the indictment
could not be supported. A pica by a county to an indictment
against them shared tlie same fate for the error of stating that
immemorial liability (b).
If a contractor be compelled to sue for his expenses in the re-
building of a bridge, he must be careful to proceed against the
right party. Certain justices were empowered to contract for
the rebuilding of a bridge in Bedfordshire, and to appoint super-
intending justices. The contractor was to give security to the
clerk of the peace, in whose name all actions, tkc. were to be pro-
secuted or defended, and wlio also was to be reimbursed his costs
upon such occasions. The expenses of rebuilding were to be paid
out of the county rate. The superintending justices covenanted
with the contractor by deed, that they, or the treasurer of the
county, Avould pay him a certain sum, by instalments. He
brought an action against these justices for the non-payment of
two of these instalments, and the defendants demurred. The
court held, that the action should have been brought against the
clerk of the peace, for that officer was to be indemnified for his
costs, and to him the contractor was to give security. Judgment
was given for the magistrates (c).
This mention of a plea naturally leads us to observe, that va-
rious pleas may be offered in answer to indictments for the non-
repair of bridges, as in the case of highways. And the same
rule regarding the evidence under a plea of not guilty prevails on
the subject of bridges, as we have already seen to be applicable
when roads are indicted {d).
The plea must directly answer the charge, or traverse some
material fact. An information was prosecuted against certain
inhabitants for not repairing L. bridge, and it Avas called an an-
cient bridge in the pleadings. The defendants, protesting that
it was not an ancient bridge, said, that it had been lately erected
by the king for the benefit of his mills, and, upon demurrer, this
plea was holden ill, for it did not traverse that the bridge was an
ancient bridge, which was the substance of the information (e).
Where a bridge lay in two parishes, it v/as considered insufficient
for the county of E. to plead, that a certain common bridge in
(a) 2 Campb. 455, Rex v. Surrey Inhabitants.
{b) 1 B. & A. 64, n. Rex v. IMiiidlcsex Inhabitants, cited,
(c) 2 aioore, 621, Allen v. Waldegrave.
(rf) See ante, p. 233, and 2 Wms. Saund. 159. (a) n. 10.
1 12, Rex V. Nottinghamshire Inhabitants. S. C. 3 Keb. 370.
(e) Cro. Car. 365, case of Langforth Bridge.
Covenant
for non-pay-
ment of the
expenses of
rebuilding a
bridge.
Pleas.
See also 2 Lev.
240
Pleading.
[chap. IX.
Declara-
tions for dis-
turbance of
ways.
D. parish had been formerly out of repair^ and that one Sir
T. F. had been convicted for the non-repair of it, and, therefore,
that the county were not liable, because the bridge contained in
the information was said to lie in two parishes, but the bridge
mentioned in the plea only in one. Sir T. F. might be bound to
repair so much of the bridge as lay in D. parish, and the county
the other part (a).
We have now done for the present with public rights of way,
and proceed to speak of the mode of pleading private rights of this
nature, although it should be observed, that the plea of a public
right of Avay will be mentioned in a future part of the chapter,
when the subject of defences to actions comes to be discussed.
First, as to declarations, a very common mode of proceeding is
by an action on the case for disturbing the plaintiff's right of
way. And here, according to the usual rule in cases of incor-
poreal hereditaments, it is sufficient to declare upon the posses-
sion of the premises to which the way may be appurtenant. So
that it is enough to say, that the plaintiff is lawfully possessed of
a certain messuage, &c. *. And this rule holds also, where it is
sought to charge a defendant for non-repair, whether he be owner
or occupier. An action was brought against the defendant for
not repairing a private road which led through his grounds.
The declaration stated the possession of a messuage, &c. by the
plaintiff, and that the defendant was possessed of a certain close,
&c., and that, by reason of his possession of the said close, &c.,
he ought to have maintained the way. There was a demurrer to
this declaration, and a distinction was suggested between the
mode of charging the owner of the inheritance, and the occupier
only, and it was said, that in the latter case, a prescription
ought to be alleged. But the court held, that the defendant had
been sufficiently charged bij reason of his possession (6). " In
the former case, the plaintiff is presumed to be ignorant of the
defendant's estate, and cannot therefore plead it ; but in pleas,
the defendant, knowing his own estate in right of which he
claims a privilege, must set it forth." (c) So, where the de-
(a) The. Raym. 384, Rex v. Essex Inhabitants.
* An allegation, that the plaintiff was possessed of a certain piece of pasture
was held bad for the uncertainty. 1 Lutwy. ISi, Jones v. Humond. As to
the occupation, see post, p. 253.
(6) 3 Term Rep. 766, Rider v. Smith. 1 Lutwy. 119, Blockley v. Slater.
S. P. 1 Lord Raym. 266, Dorney v. Cashford. Sec Cro. Car. 575, disturbance
of a watercourse. 4 Mod. 420. 2 Lord Raym. 1093. Willus, 508, Blissett v.
Hart. 6 Ji. & C. 703, Peter v. Kendal. 2 Y. ^ J. 285, Trotter v. Harris, dis-
turbance of a ferry. J Wils. .326, disturbance of a pew. The cases of Holbach
V. Warner, Cro. Jac. 665, Raker v. Brereman, Cro. Car. 418, are overturned by
this decision of Rider v. Smith. And the (^)inion of tlie judge in Jones v. Ham-
mond, 2 Lord Raym. 751, is also shaken by the same authority. See also 'Z
Saund. 11.3, n. 1.
(r) 3 Term liep. 708, by Buller, J.
CHAP. IX.3 Pleading. 941
claration merely stated, that the phiiiitifF was seised in fee of &
parcel of ground adjoining to the defendant's meadow, and had a
certain way, &c., it was objected, that no title had been shewn
by prescription or otherwise, but the court held the pleading
sufficient («). The ])laintitf having said^ tliat he is possessed of a
messuage, &c. proceeds to declare, that hi/ reason thereof he is
entitled to a certain wav *• Here it is observable, that if the
right be not by reason of possession, but by licence, agreement,
&c. such a mode of pleading will be faulty (A). And thus,
where the plaintiff, claiming a right to a water course, declared
on his possession ; but it appeared, that the defendant, although
he had agreed to let certain laiul to the plaintiff, never executed
a conveyance, the court held, that the plaintiff could not be said
to have this right to the water by reas(m of his possession, and
the rule was made absolute for a nonsuit to be entered (c). The
word "way", it seems, cannot be understood by "passage", for,
upon demurrer, the court said, that passagium was properly a
passage over water, and not over land, and that the usual words
known in the law ought to have been observed (d).
The terinini of the way should be set out, and in this respect, Termini.
as we have before seen, a private way is pleaded differently from
a public way (e). It is, therefore, usual to add, " from and out
of, &c. unto, into, through, and over a certain close, &c. and from
and out of the same unto and into, «&c." [wherever the way
leads] , and so back again.
Thus, it was very early agreed, that a way should be shewn to
pass from such a place to sucli a place, as from one close to
another, from a house to a close, &c. (f) And the reason is, be-
cause a man may not go over the grounds of another but to the
right place (g). The same doctrine was adopted, where the right
claimed was a way for the purjiose of carrying home tithes in
(a) 3 Lev. 266, Winford v. Wollaston. S. P. 2 Ventr. ISn, Warren v. St.
Hill. 1 Ventr. 274, St. John v. Moody, vvliere such pleading was held good
after verdict, though Twisden, J. doubted if it could be so on demui rer, but the
above case of Rider v. Smith has set the matter at rest, S. C. 3 Keb. 52S. 531.
S. C. 2 Lev. 148.
* Where the plaintifT said, that he had a way, but that the defendant erected a
wall, so that he could not have his way, the writ was held to be repugnant, for
stating first, that there was a way in possession, and then, that the way could not
be enjoyed. By Prisot, 33 H. 6. 26.
(6) See 2 Chit, on Pleading, p. 4-05.
(c) 4 East, 107, Fentinan v. Smith.
(d) Yelv. 163, Alban v. Brounsall. 1 Brownl. 215, S. C.
(e) See the judgment of Wilson, J. 1 H. Bl. 353 ; but, by Gould, J. " in
pleading a right of way you need not describe the terminua a quo, because the
plaintiff may reply extra viam, which will be a matter for evidence." 3 Wils. 273.
This, however, was an obiter dictum.
(/) 39 H. 6. 6.
(g) Hob. 190. See Hutt. 10. Coble v. Allen.
R
242 Pleading. Qchap. ix.
kind («). So even in the case of a way in gross, it ought to be
alleged in certain, and not in one place to-day and in another
to-morrow ; for it should be bounded and circumscribed within
a certain space (b). Where, therefore, the pluintiif declared,
that the lord of the manor had, for himself and his customary
tenants a certain highway, without saying to what village it led,
judgment was arrested (c). If, instead of leading to a common
highway, the way in question lead to a private close, it becomes
necessary to state some interest which the plaintiff has tlierein(f/).
Though, where a nuisance was alleged to have been committed
by stopping a way unto a field, (which was named in the declara-
tion.) the court said, they would intend it to be a common field,
but that it would have been otherwise had the words been, " to
such a close." (e)
So, where the plaintiff prescribed that the inhabitants of C.
had been used to have a common cross way, and that he was an
inhabitant of C, it was held, that he should have judgment not-
withstanding the objection that C. was not stated to be an ancient
town, for the plaintiff did not claim any right or interest in the
cross way, but only an easement (f). One prescribed to have a
cross way in a certain way unto such a close in D. ; and it was
objected, that inasmuch as this should be intended to be a
common cross way and so of common right, the prescription was
gone. But it was adjudged, that although a man could not
prescribe in a common cross way without more, yet to have a way
in, by, and through that common cross way, he might well pre-
scribe ; for, notwithstanding that being in the highway he might
continue his course without prescription, yet the cross way might
be inclosed and hedged on both sides, and then to prescribe to
pass, cross, and repass through would be a good prescrip-
tion (g).
Where, in pleading a way, a highway is alleged by way of
abuttal, it need not be shewn J'lom what vill to what vill such
highway leads. As where a way was stated to be from a house to
a meadow, that is, from a house to a highway lead'mg from T.
unto a bridge, and when at the bridge, turning into the defendant's
close, and tlience into the plaintiff''s close. Here the highway
was not the matter of justification, for then the termi?ii must have
been shewn ; but the plaintiff' only mentioned it as an abuttal
(a) 2 Leon. 10.
(6) Yi). StiG.
(//) 1 Vciitr. 13. See also imtc, \\ 231. &c. \\ '-11: mid 7 E. & C. -111.
(<•) By Gould, .T. 1 n. Bl. :Vo\.
(tl) 2"S,-ilK-. 4-5B, Lodie v. Arnold. See Cro. Car. 184..
(c) Yelv. Ul, Home v. Widlake. See Willes, 282.
If) 3 Term Hep. 766, Rider v. Smith.
CHAP. IX.] Pleading. 253
to his close, or messuage. He tlien states tlie user of this way,
and lastly, concludes by justifying the supposed trespasses al-
leged in the declaration.
With regard to a man's prescribing for a way in his own land,
the reader is referred to a former page, where the authorities are
mentioned («).
The words of the plea which mention the persons entitled to
the way, arc usually these : " his and their servants, farmers
and tenants, occupiers, &c." The defendant may sustain a plea
having these expressions, although his messuage, to which the right
of way belongs, be in the occupation of a tenant, and although he
do not allege himself to be an occupier. Thus, a defendant plead-
ed to trespass qiiare clnusuvi fregit 1st, Not guilty. 2dly, A pub-
lic right of way. 3dly, A private right " for himself and them-
selves, and his and their farmers and tenants, occupiers," ike.
The plaintiff took issue on these pleas ; it appeared that the
defendant had let the messuage, to which he claimed the ease-
ment as appurtenant, to a tenant who was in the occupation of
it at the time of the trespass, and that he had built a new house
on a dift'erent part of the same estate for himself, which he was
occupying at the same time. Upon this, the plaintiff contended,
that the justification could only apply to the new house occupied
by the defendant, and not to that in the occupation of his te-
nant ; but the cause proceeded, and he had a verdict on the plea
claiming a private right of way. After a laborious argument in
stipport of a rule, either to enter a verdict for the plaintiff on
the special plea in question, or for arresting the judgment, the
court held the pleading sufficient. The plaintiff might have re-
plied the fact by way of new assignment, that the defendant
had let his messuage, and was only the occupier of a newly-
built house, and that the pleadings might have been brought to
the issue for which the plaintiff was contending, or he might
have obliged the defendant, by a proper application, to state in
respect of which messuage he claimed the right of way. He
should have admitted the claim, and pleaded that there was a
new house, and that the trespass complained of was committed
extra viam, and in the way to the new house (6). After the
judges had expressed their opinions to this effect, the plaintiff's
counsel still insisted, that the pleas should have gone farther,
and have alleged, that the defendant was the occupier of the mes-
suage and land, in right of which he claimed the prescription in
order to bring him within the prescription, which was for occu-
piers only. But the coiu't answered this, by saying, that the
allegation of seisin implied occupation, until the contrary were
(a) Ante, p. 244.
\b) 16 East, 343, Stott v. Stott.
254 Pleading. Qciiap. ix.
shewn in pleading, and that if the plaintiff intended to insist
upon that fact^ he should have replied, that the occupation was
in another («).
There is another case upon occupation, regarding rights of waj-,
which, although the point arose upon a declaration, may be pro-
perly introduced here after the former decision. The plaintiff de-
clared upon his possession and occupation of a messuage, &c., and
claimed a right of way for himself and his servants over a certain
close of the defendant to his own messuage and land. At the
trial he called a witness, who stated himself to be a labourer in
the service of the plaintiff, and said, that the messuage above
mentioned (which was a cottage) was divided into two parts,
one of which he occupied ; that he paid no rent, but had less
wages by 51. a-year^ on account of his paying no rent in money,
'and was only a weekly servant. It was objected, that this was
not the plaintiff's occupation, but that of a tenant, and the
plaintiff was accordingly nonsuited. However, it was moved to
set aside this nonsuit, and the Court of King's Bench were quite
clear, that, upon this occasion, the occupation of the servant was
virtually that of the master, and that the servant did not stand
in the relation of a tenant to the premises. The rule was, con-
sequently, made absolute (A). It should be observed, that if the
servant had paid rent in this case, the declaration would have
been faulty, because the plaintiff* could not then be said to have
occupied his premises, and the servant's occupation could not
have been identified with that of his master. The difference
between the two cases is, that in the former, the seisin in fee,
not bei?ig de?iied, drew to it all the rights annexed to such a
seisin, and it was admitted, therefore, on the record, that the
defendant was seised in such manner as to be entitled to a right
of way, if the right of way existed (c). And, in the other
cases, Lord Ellenborough said, " If the man had been in the oc-
cupation of it [[the cottage] before, as a tenant paying rent, I
should have thought that he still continued to occupy it in that
character, if no new agreement had been entered into in that
respect when he was taken into the plaintiff's employ, and that
he was only to pay his rent in service instead of money. But no
rent had ever been paid by him before, nor did he ever stand in
the relation of tenant to the plaintiff." (d)
But where in an action upon the case for stopping a way, the
plaintiff claimed the casement as lessee of the Company of Haber-
dashers in London, and claimed the way for them, it was held,
{a) 1() East, 351, in Stott v. Stott.
(b) Id. .'33, Hertie v. IJoaumont.
(r) Sec ill. S'U), by Lord EUenboroutrli.
((/) Id. 30.
CHAP. IX.] Pleaditig. 255
that the company, liaving let tlic premises in respect of wliich
the way was demanded, could not have it ; and that, if any pre-
scription were made, it should have been for the tenants and
occupiers of the company's premises. As the declaration was
laid, the company ought to have brought the action (a).
The propriety of stating the way to be appendant to some mes-
suage, &c. has already been discussed in treating of the manner
of declaring for obstructions {h).
It should be remarked, that certainty is required in setting Persons en- '
out a right of this kind ; and that the persons, or the description titled.
of persons entitled to it should be accurately mentioned. There-
fore where a count in a declaration * stated a seisin in fee in the
plaintiff of an ancient messuage, that the only way for persons tra-
velling in carriages from that messuage to B., was over the defend-
ant's closes, &c. ; and tluit the plaintiff, and all those, &c. had been
accustomed immemorially to enjoy the way in question for him-
self, and themselves, and others, travelling in carriages from
that messuage to B., &c. — it \^'as holden bad for uncertainty.
For it was too general to urge a right for the plaintiff, and others
(naming no persons) and by no means certain enough for a pre-
scription (c).
It was said by the court, in an old case, that the quantity of Quantity of
this close over which the right of way was claimed needed not be ^^^y-
shewn in pleading, but that the quantity of the way, as so many
feet, &c. should be stated ( (/) ; this course, however, is not
adopted at the present day, the casement being mentioned gene-
rally as a right of way. And the close being once mentioned,
must be she^n in evidence to be that in respect of which the
right is claimed. So that where the defendant made his prescrip-
tion for a way to Badsley-well-close, it was held, that he could
not justify the going over another close called Warton Langdale,
and judgment was given for the plaintiff (c).
The termini of a private way should be set out in a plea with Termini.
as much correctness as possible ; for, as we have before seen,
although this accuracy may be dispensed with in the case of a
public way, it is otherwise when a private right comes to be
pleaded. Those cases, therefore, which go the length of saying
(a) Sty. 300, Cantrell v. Stephens.
(6) Ante, p. 246.
* We have placed this case under the liead of pleas, because the plaintiff
thought fit to set out his titlr.
(c) Willes, 71, Chichester v. Lethbridge. 2 Lev. 178, Underwood v.
Sanders.
((Z) 39 H. 6. 6. Bro. Ciiim. pi. 6, cites S. C.
{c) I Lutwy. Ill, Laughton v. Ward.
256 Pleading. [chap. ix.
that the way need not be stated as extending from such a place
to such a place, cannot now he supported. Thus, where one
prescribed that he, and all those, &c. had been used to have a
Avay by and through the pound garden unto the sessions, and
from the sessions by and through the pound garden, without
saying from or to any house, it was moved in arrest of judg-
ment, that such pleading was insutiicient ; but by Doderidge,
J., " it signifies not whether he had the way from or to the
house, or not ;" (a) and in support of this he cited two cases from
the year books (6). And, lastly, it is desirable to observe, that
the justification must answer the whole trespass as laid ; for
where the plaintiff complained of the defendant for going over a
close with horses, cows, and sheep ; and the defendant justified
by reason of his having a way for horses, cows, and slieep, where-
upon he went over with horses, the plea was holden ill on de-
murrer, inasmuch as the justification was for horses only (c).
Plea of When a copyholder pleads his right of way, he alleges, that
right of there is a custom within the manor for every customary tenant
^'^y ^y of the customary tenement which he holds, and which, as well
copy 10 er. ^^ ^^^ locus in quo, he has previously stated to be parcel of the
said manor, to have the way in question, (setting out the ter-
mini,^ for himself and his servants, &c. He then goes on to
shew the user of this way, and concludes in the usual manner.
The place in respect of which the way is claimed must appear
to be within the manor, and a positive affirmation of the custom
is necessary. The defendant pleaded to trespass qiiare claiisum
Jregit, that the manor of C was an ancient manor, and that
there was a custom within that manor that eacli tenant should
have a way over the place where, &c. The plaintiff demurred,
and had judgment. First, because it was not alleged, that the
place where, &c. was within the manor, and thus the custom
stated did not extend to it ; and, secondly, because the words
were, that each tenant should have, which is not a direct affirm-
ative to the right, instead of " have had, and still of right
ought to have." (d)
The expressions " being so seised, and having occasion to use
the said way," are very comprehensive, as will appear from the
following decision. The defendant, landlord of the premises to
which tlic right of way was attached, pleaded to tresjiass, that a
copyhold tenement had been surrendered to him with all ways
then used by the tenants and occupiers of the said tenement, that
(a) 2 Ro. Rep. 1:34.
(6) 28 H. «. 9. II H. 4. fi.3, which .see, and also ante, p. 247.
(c) II Mod. 219, Roberts v. Morgan.
(d) 1 Sid. 237, Cornelius v. Taylor.
CHAP. IX.] Pleailuii^. 257
the surrenderor was tlien seised in foe of the locus in quo, accord-
ing to the custom of the manor, that a way was then used by
the tenants and occupiers of the surrendered tenement, from
thence over the locus in quo to a ])ublic street ; that tlie defend-
ant was admitted, and continued seised, and being so acised,
and having occasion to use the way, he committed the supposed
trespasses. The re))lication traversed tlie way, and there was a
new assignment, that the defendant trespassed on the close at
other times, and on other occasions than those mentioned in the
plea. Tlie right of M'ay was jn-oved at the trial, and there was
a general verdict for the defendant ; but as it appeared that the
premises were in the occupation of a tenant, leave v.as given to
the plaintiff to move to enter a verdict on the new assignment,
with 1^. damages. And it was contended, upon a motion for this
purpose, that the landlord had no right to use the way, whilst
his tenement was out on lease, either in order to remove an ob-
struction, or to assert his privilege ; and it was further con-
tended, that the words, " being so seised, and having occasion to
use the said way," must mean, that he ^vas then possessed of the
tenement, and that he used the way for the ordinary purposes of
an occupier in passing over the locus in quo in going to and from
the tenement. But the court refused the rule ; they said, tliat
while the tenement was occupied by the tenant, tlie landlord
might use the way to view waste, or demand rent, or to remove
an obstruction ; that the language of the plea comprehended all
the purposes for which a person seised of the tenement might
lawfully use the way ; and that the new assignment meant, that
the defendant had trespassed on the close for some purpose un-
connected with the use of the way claimed in the plea (c/).
If the way be claimed by a particular tenant, the course is, to Way plead-
shew that such an one is seised in fee of the place to which the ed by a par-
easement is appurtenant, that, being so seised, he is entitled to t'^^'^^r 's-
a way, and then to shew the grant to the lessee, for when a par- "'^" '
ticular estate is disclosed in pleading, the fee must be stated to
belong to some one (6).
If a way by grant be claimed, the plea must be framed ac- Way by
cording to the terms of the grant (c). grant.
Lastly, there is the way of necessity, M'hich is, after all, upon Way by
most occasions, nothing more than a way Dy grant (fZ). Tlie more necessity.
prudent method of setting forth this right, is, in general, to plead
it as arising under a prior existing grant. There are occasions,
however, when it may be pleaded merely as a way of necessity,
(«) 1 B. & C. 8, Proud V. Hollis.
(6) 6 Mod. 4.. Selw. N. P. 1:3^3.
(c) See 2 Chit. Pleading, p. 624.,
( ^'t^-
itself should be traversed.
Thus, where the defendant pleaded a highway from time im-
memorial, and that, because the highway was obstructed by a
quickset hedge, he cut it up, the plaintiff" rcjdied dc injuria, and
after a verdict against the defendant judgment was arrested, for
the prescription alleged had not been traversed, and therefore
tliere was no proper issue. In this case also the words absque
tali causa were omitted ; A^hich was said to be another error,
inasmuch as the ^\hole case was in issue (/;). For the plea of a
right of way is not merely in excuse^ but it claims an in-
terest (c).
If the plaintiff have obstructed the defendant's right of way,
by setting up a gate or other impediment, and the defendant be
called upon to justify the removal of it, it is proper to plead,
that because the gate was wrongfully erected across the way, the
defendant broke it down, and removed it to a convenient distance
from the place Avhere it was erected, and deposited it in a proper
and convenient place near to the spot where the gate had been
erected /or the use of the plaintiff. In a case of this kind, Avhere
trespass had been broxight for breaking down and carrying away
an iron gate, there was a plea similar to the above, and the
plaintiff's replication Avas, after protesting that the gate had not
been removed to a convenient distance, that after the breaking-
down of the gate, the defendants converted the same to their own
use. After a verdict for the plaintiff, the court made the rule
absolute for a new trial, since the plaintiff had the power of coming
upon the defendant's land to take away liis gate without com-
mitting a trespass, and as he did not deny the facts stated in the
plea, but replied a subsequent conversion, it was incumbent upon
(m) Mar. 35, pi. 83, Hicks v. Webbe.
(b) Cro Jac. 598, Rex v. Hopper.
(c) 8 Rep. G7. Willes, 101. See also 4- Leon. 16, Ruislibrook and Pusanies'
case. The prescription claimed a free course for sheep, and was not traversed by
the replication, which was consequently lield to be bad.
262 Pleading. [chap, ix.
him to prove some trespass wliicli was not covered by the plea,
and that, the court were of opinion he had not done (a).
Care should be tahen to suit the replication to the particular
form of action, as will appear from the following case. An action
of debt was brought upon a bond conditioned for the performance
of articles, by which the defendant agreed with the plaintiff, his
heirs and assigns, that they should thenceforth have and use a
way through a close belonging to the defendant, in consideration
of which the plaintiff agreed to pay the defendant so much, as well
as to repair a certain gate between their respective closes, and
the defendant covenanted that his son should contirm these ar-
ticles when he arrived at the age of twenty-one. The defendant
pleaded, that his son had not then as yet attained the age of
twenty-one, and that he had himself performed all the residue.
Then the plaintiff replied, that the son, after the entering into
these articles, being the tenant of the close in which, &c, to the
defendant, obstructed the plaintifi"'s way. To this the defendant
demurred. The court held, that this replication was wrong, be-
cause it did not shew that the son had any title to the close,
whereby he might stoj) this way, and in that case, the injury
would be, not a breach of covenant, but trespass, and so, that the
action in the form presented to the court was ill conceived.
Judgment was, therefore, given for the defendant (6).
Duplicity. Care must also be taken that there be no duplicity in the re-
plications or rejoinders, when a plea of right of way is put upon
the record. The following is an instance of such a departure.
The defendants pleaded to an action of trespass, not guilty, and
a right of way. The plaintiff rej)lied an allotment under an en-
closure act, and that he was entitled to stop up the way in ques-
tion, being one which the commissioner had not noticed, and was,
therefore, left to the operation of the general inclosure act *.
The rejoinder to this was, that the commissioner did not, in or by
his award, order or direct the way to be stopped up, diverted, or
turned, or give any orders or directions touching or relating to
the same way, or in or by his award set out, or appoint any
other way or passage to or from the cottage in lieu or stead of the
way in tiie last ])lea mentioned. To this there was a demurrer
on the ground of duplicity, and the court gave judgment for the
plaintiff (c).
(a) 4- Term Rep BCA, Houghton v. Butler.
(b) 3 Lev. .S05, Holms v. Seller.
* -tl (J. 3. c. 109, wliicb declare!!, tluit all ways not set out, slial be for ever
stoj'ped up and extiiifjuished.
(r) 3 .Moore, 23, While v. Reeves.
263
CHAPTER X.
OJ' Evidence.
In treating upon the subject of evidence as applicable to the
law of ways, our first inquiry will be into the competency of wit-
nesses; for instance, of the inhabitants of a parish, a hundred,
&c., in the progress of which examination it will be found, that
the testimony of some persons is declared to be admissible by
virtue of acts of the legislature. The evidence against a parish
for the non-repair of a highway will then succeed, together with
the proof necessary for their defence. The same inquiry will
continue concerning a lesser district than a parish, a particular
individual who is charged ralione lenune, a county indicted for
the non-repair of a bridge, and also concerning obstructions in
highways.
Next, the evidence needful to sustain a special plea of a public
right of way will be mentioned, after which we shall proceed to
the testimony requisite u])on the trial of private rights of that
sort. First, as to declarations for disturbance, declarations in
ejectment, &c. The evidence under a special plea of a right of
way by prescription, whether by a freeholder or copyholder, will
be then laid before the reader ; also such proof as will be suffi-
cient to maintain an easement claimed by custom, by a particu-
lar tenant, by grant, and lastly, from necessity.
The chapter will close with the matters usually offered to re-
]jut the pleas of rights of way so proved as we have above men-
tioned.
It is a rule of the law, that all persons, who gain or lose directly Who may
by the event of a cause, are incompetent to give evidence («). ^^ goo'l
And moreover, if the person be so far interested in the question at "'""'^^•'^':^ '"
issue, as that a bias would probably influence his mind if he were ["s^eciiii'^
permitted to give evidence, he is incompetent though he do not ri"lits of"
gain or lose immediately (/j). Upon these grounds it is, that the way.
inhabitants of a parish, hundred, ^-c. are in general disqualified
from giving their testimony upon proceedings respecting high-
(d) riiil. on Ev. ith cd. Vol. I. p. I'M.
(6) 1 .Alotl. '>[)■>.
Evidence.
QCHAP. X.
In general,
not inha-
bitants of a
parish.
ways. There is this difference between inhabitants who would
seek to disprove an obligation to repair roads in their parish, and
commoners whose aim it is to establish their rights to ])asturage,
&c. namel)', that in the former case, the inhabitants have an im-
mediate interest in procuring a verdict of not guilty, inasmuch as
a record of guilty would be evidence against them upon another
indictment ; whereas, in the latter, the record would not, in ge-
neral, affect another commoner, and yet the testimony of both is
excluded. The words of Parker, Chief Justice, are very illus-
trative of the principle in the case of the commoner. He says,
" If an action be brought by a commoner for his right of com-
mon, shall another person that claims a right of common upon
the same title be allowed to give evidence } No : and yet it is
certain that he can neither get nor lose in that cause ; for the
event of that cause will no way determine his right. But
though he is not interested in that cause, he is interested in that
question upon which the cause depends ; and that will be a bias
Tipon his mind. It is not the swearing the thing to be true that
gives him any advantage, but it is the thing's being true ; and
the law does judge, that it is not proper to admit a man to
swear that to be true which it is plainly his interest should be
true." («) Certain inhabitants of Shoreditch, upon an issue,
whether the inhabitants of Shoreditch should repair the high-
way, offered themselves as witnesses to prove, that some particu-
lar persons, inhabitants, had used immemorially to repair ; but,
inasmuch as, in effect, they were defendants in the information,
the court would not receive their testimony (6). So, where an
information Avas brought against the defendant for not repairing
a highway raiione ienurce between Stratford and Bow, none of
the persons who lived in either of the parishes of Stratford or
Bow were admitted to give evidence {c). So again, a mere in-
habitant, not occupying any land within the parish, was consi-
dered by Lord Kenyon to be incompetent u])on the trial of an
issue on a plea by the inhabitants, that one li. v/as bound to re-
pair the road in question ratlone tcnurce, and this, because, 1st,
every inliabitant is liable to do statute-duty, and next, because,
in the event of a verdict against the defendants, the witness
would have been liable to contribute towards the payment of the
fine {(l).
Again, upon the trial of an indictment at Nottingliam against
a parish for not repairing a highway, I^Ir. Justice Bayley held,
that a rated inhabitant of another parish, in which it was con-
tended by the defendant that the highway in question lay, could
(fi) 10 Mod. 202, by Parker, C. J.
{b) Mar. 2G, jil. 02, Rex v. Shoreditch Inhabitants,
(c) 4. Mod. 'l-H, Rex v. Butkeridge.
(<7) Slark. on Ev. I't. IV. p. 7b0, Rex v. Wheateu Aston. £c8 2 Vern.
.317.
CHAT. X.] Evidence. 2G5
not be a witness to disprove tliat fact (a). And nlicre a ques-
tion arose upon tlic propriety of suspending the entry of the
judgment for the defendants, on an indictment against the pa-
rish for a similar misdemeanour, the incompetency^of the pa-
rishioners was recognized by tlie court, who imposed, as the con-
dition of staying the judgment, tliat the parishioners (whose tes-
timony would not be legal evidence on the ground of interest *)
should be examined at the next trial (/^).
Upon the same principle, the inhabitants of a hundred cannot Inhabitants
be witnesses. Thus, after observing, that a certain way should t^' liuiicirt;(l.
be deemed a public way. Chief Justice Parker added, that no one
living in a hundred should be allowed to give evidence for any
matter in favour of tliat hundred, though so poor as upon that
account to be excused from the payment of taxes, because, though
poor at present, he may become rich (c). There Avas a prescrip-
tion for a way through a certain gate leading into a conmion field.
A person was called who had an interest in the field, and
claimed a Avay through the gate to his part of the field; and upon
his saying, that if the gate -v^'cre stopped it would be a great in-
convenience, he was set aside (d). But it has been said, that a Toll and
man who uses a way, may give evidence v^ hether a toll has been nuisance.
paid, and so it is in the case of a nuisance (c). And upon an in-
dictment, charging the inhabitants of P. with a liability to repair
all roads within their township, it was holdcn, that an inhabitant
of an adjoining township, within the same parish, was a compe-
tent witness to prove that the place in question was a common
high\\'ay ; because, although a conviction would discharge the
parish, yet there would be this evidence to shew that the
road was public, whereby the latter township, from whence the
witness came, would be charged (/). Where in trespass a wit-
ness came to prove a highway, it turned out on the voi?- dire
that he was the ou'uer of a field adjoining to the loc?ts in quo,
and had agreed with the defendant to let him pass across that
field at all times, at a rent of ()/. a-year for the easement ; and
that the defendant could not reach the road so assigned, if the
/ucits in quo Mere not a public road. Upon this his testimony
was objected to, but Lord Kenyon overruled the objection, and
he was examined {g).
(a) 15 East, tTi, cited b}' Coltinan, arguendo.
* Verba Lord Ellenborough.
(6) 1 B. & A. 66, in Ivcx v. Wandsworth Inhabitants.
(c) 10 Mod. 150, by Parker, C. J.
(d) 12 Vin. Ab. 14, pi. 60, per Pratt, C. J. Westminster sittings, Pasch. Vac.
(1721.
(e) By Holt, C. J. 11 Mod. 225.
(/) Kex V. Pilling Inhabitants, cor. Holroyd, J. Appen. to Staik. on Ev.
Isted. Pt. IV. p. 67.3.
(S) Peake, N. P. Cases, 18, Pollard v. ScoU,
266
Evidence.
[[chap. X.
Prosecutor
of indict-
in en t com-
petent.
Inhabitants
of count}'
admissible
on questions
as to the
repair of
bridges in
the county.
But, it seems, that the prosecutor of an iiulictme'iit fur non-
repair is a competent witness ; a person in that situation has been
sworn, and no objection was taken to his qualification when exa-
mined in support of the prosecution (a). " Though the court is
authorized to award costs against the prosecutor in case the pro-
ceeding shall appear to have been vexatious, yet the court would
scarcely presume, in the first instance, that the prosecutor's
conduct had been vexatious, so as to raise an oi)jection to his com-
petency, especially after the finding of a bill by the grand
jury." {h)
The inhabitants of a county are admissible witnesses upon
indictments for not repairing bridges within the county. They
were considered to be competent in early times from a principle
of necessity, though the rule was by no means universal *. And
so it was held, that if a man Avere indicted for the non-repair of
a public bridge, to which repair he was bound by reason of his
tenure, those of the county might be witnesses, because none
else could testify concerning the matter (c). And the same
oi)inion was advanced by Dolben, J., wlio said he had known
such an admission in the case of Peterborough Bridge (d). The
inconvenience, indeed, of a contrary .doctrine, which, it seems,
prevailed upon many occasions, was so seriously felt, that the
legislature interfered. The preamble to the act for establishing
the testimony of such persons sets forth, that whereas many
private persons, bodies politic or corporate, are obliged to repair
decayed bridges, and the highways thereunto adjoining ; but
because the inhabitants of the county, riding, or division where
the bridges lay, had not been allowed, upon indictments or in-
formations, to be legal witnesses by the judges before whom such
indictments or informations were tried ; therefore the act pro-
ceeds — in all indictments or informations in any of her JMajesty's
courts of record at Westminster, or at the assises or quarter
sessions, the evidence of the inhabitants, being credible persons
of the town, corporation, riding, or division, in which the de-
cayed bridge or highway lies, siudl be admitted (e). And so,
subsequently to the passing of the statute, it was said, that one
of the county is a good witness in the case, []for repairing a
bridge,] though not a good juror ( /').
If this latter class of witnesses, however, thus sanctioned by
the provisions of the legislature, be not an exception to the ge-
(a) 1 Stark. ."58, note (a), in Rex v. Ilannnersmith luiiabitanls.
(ft) Ibid.
* Sec the preamble to the statute of Anne, iiifrii.
(f) 2 Show. 47. See 2 East, 561.
(r/) 1 Ventr. 351.
(V) I Ann. St. 1. c. 18. s. l.'J.
( /) ti l\Iod. 307. Sec po.-,!, Cii. XI. iis to the trial.
eHAP. X.3
Evidence.
267
neral rule, those acts of parliumeiit wliich autliorize the inhabit-
ants of parishes to give their testimony in cases of forfeitures,
and which permit the evidence of trustees of turnpike roads, of
surveyors, and of collectors to be received, certainly recognize
that exception. These enactments shall now be presented to the
reader's attention.
The highway act declares, after pointing out the mode of re- Inhabitants
covering penalties, that any inhabitant of any parish, township, when good
or place, in whicli any oiFence may be committed contrary to the witnesses,
act, shall be deemed a competent witness notwithstanding his or
her inhabitancy (ti). A similar provision is made by the turn-
pike regulations (/^).
So again as to the surveyor of highways. The surveyor of Surveyor of
any parish, township, or place, shall be deemed, in all cases, a highways.
competent witness, in all matters relative to the execution of the
act, notwithstanding that his salary may arise in part from the
forfeitures and ])eiialties inflicted by the act (f). The surveyor
may also be a witness for the defendants {(I).
Trustees of turnpike roads, mortgagees, or creditors of the Trustees of
tolls, farmers, lessees, or collectors, treasurers, surveyors, and turnpike
other officers appointed under any turnpike act, are made com- "^^'^ *'
petent witnesses by an express provision for that purpose. For
it is enacted, that no person shall be deemed incompetent to give
evidence, or be disqualified from so doing in any action, suit,
prosecution, or other legal proceedings at law or in equity, or
before any justice, by virtue of any turnpike act, by reason of
his being a trustee, &c. as we have just mentioned ; nor shall
any testimony or evidence for any of the reasons aforesaid be re-
jected or liable to be questioned or set aside (c).
With regard to collectors, there is a 8ej)arate and independent Collectors.
enactment. For the statute declares, that in case any dispute,
suit, or litigation, should arise touching the tolls granted by any
act of parliament, the persons appointed to collect the same, or
any persons ajjpointed by the authority of the trustees or com-
missioners, shall not be incompetent to give evidence upon such
occasions on account of their appointment as collectors (J )•
To sue a trustee of a road successfully, proof of his appoint- Actions
nient, and of his having acted as such will be sufficient. Thus, against
trustees.
(ri) 13G. 3 c. 78. s. 77.
(6) 3 G. l. c. 126. s. 137.
(c) 13 G. 3. c. 78. s. 69.
{(J) Arclibolifs Criminal Pleadinj.
(f) i G. 4. V. 9b. s> 81.
( /■) 3 G. '!• c. 126 s. ay.
:h1 cd, p. 118.
268
Evidence.
QCHAP. X.
Penalt}' on
witnesses
not attend-
ing sum-
monses
under the
turnpike
acts.
\
Books of
proceedings
by turnpike
trustees evi-
dence.
if an action be brought against any trustee or commissioner of a
turnpike road, evidence of his having acted as such, together
with the act of parliament containing his appointment, or the
order, or a copy of the order for his appointment or election, in
case he have been appointed or elected by the trustees or com-
missioners, shall be sufficient proof of his being a trustee or
commissioner (a).
Having now set forth the authority upon which the testimony
of particular persons may be received in disputes regarding
public rights of way, we proceed to mention the particular evi-
dence which is requisite for the support of indictments, and of a
claim for rights of way generally. But before we do this, there
are one or two points, regulated by act of parliament, which it
may not be amiss to introduce in this place.
There is a penalty upon all persons summoned as Avitnesses
under the turnpike acts, who do not attend pursuant thereto.
Thus, if any person, after having been paid or tendered a reason-
able sum for his expenses, shall be summoned as a witness, to
give evidence before any justice, touching any matter of fact
contained in any information or complaint for any offence against
any turnpike act, either on the part of the prosecutor, or the
person accused, and being so summoned, shall refuse or neglect
to appear at the appointed time and place without a reasonable
excuse, he shall forfeit a sum not exceeding 40^'., and the same
penalty is inflicted upon any one, who, after having appeared,
shall refuse to be examined upon oath, and give evidence before
such justice, a reasonable sum for his expenses having been first
paid or tendered (6).
We have seen, in a former page (c), that orders and pro-
ceedings by turnpike trustees must be entered in a book kept
for the purpose, and that the book must be open at all seasonable
times to the inspection of any trustee. It is further provided,
that all books of this kind, as well as the books in which the oath
or affirmation directed to be taken by such trustees shall be
entered, and also the books directed to be kept for registering
mortgages and assignments, and all entries in such books re-
spectively, shall and may be read in evidence in all courts what-
soever, in all cases of appeal, and in all prosecutions, suits, and
actions whatsoever (rf). And by a very recent turnpike act, it
was declared, that all books kept for registering mortgages or
assignments, and all entries therein, and all books containing the
accounts and proceedings of the trustees, in the execution of
(a) 3 G. 1. c. 12G. s. 131.
lb) Id. s. I.'i8.
(r) Ante, p. 137.
{(I) 3 G. i. c. 126. s. 7^.
X.]
Evidence.
269
any local turnpike act, kept according to the directions and pro-
visions of sucli act, or of the 3 (i. 4., or by this act [9 G. 4-3
and made evidence thereby, shall be admitted in evidence in
all cases of appeal, and bv all judges, justices, and others, with-
out proving the facts therein contained, unless such facts be
first controverted, notwithstanding any former act, under the
provisions of which such books may have been originally kept,
may be repealed ; and all such books shall be preserved, and kept
by the clerk for the time being to such trustees, and shall at all
seasonable times be open to the inspection of the trustees, or any
creditor, without fee or reward ; and the trustees or creditors
may take copies or extracts from the books, or from any part,
without payment. If the clerk refuse to permit, or do not jier-
mit the trustees or creditors, or any of them, to inspect the
books or take the copies, &c. he shall forfeit a sum not exceed-
ing 5/. for every such offence (a).
The first case to which our attention is directed, is the evi-
dence necessary to sustain the ordinary indictment against a
parish for not repairing a highway within it.
First, it must be shewn that the place indicted is a common
highway {h), which is done by calling witnesses to prove that
the way has always been considered public by common reputa-
tion (c), or that it leads from one market town to another [d),
or that there has been a dedication of the way to general use by
the original owner of the soil * ; and that the parish has ac-
quiesced in the dedication, for, as we have seen before, a parish
must acquiesce under such circumstances before they can be
burthened with the obligation to repair (c). It is not necessary
to set out the termini ; but if they should, inadvertently, or for
any particular purpose, be mentioned, proof of the accuracy of
the statement of such termini must be adduced, or the defend-
ants will be acquitted {f).
Further, it is necessary to shew that the road, or that part of Within the
it which is indicted, lies within the parish {g), and, of course, P^i''sli»
that it is within the county which gives the venue. Should
(a) 9 G. 4.. c. 77. s. 2.
(6) 1 Str. 181. See Stark, on Ev. Pt. TV. p. 662, &e. That evidence of a
public footway will support a claim of a public higliway, see 8 East, 4, Allen v.
Ormond.
(c) By Lord Kenyon, 1 East, 357.
{d) 1 Ventr. 189.
* The subject of dedication has already been discussed at large in the second
chapter, to which the reader is referred.
(f) 4 B. & A. 447, Rex v. St. Benedict Inhabitants.
(/) See 6 Esp. 136, Rex v. Great Cantiekl.
{§) 1 Str. 181. Archbold's Crim, Tleading, 3rd ed. p. 63.
Evidence
against pa-
rish upon
indictments
for tiie non-
repair of
their ways.
A public
road.
270 Kridence. [cilAP. x.
there be any local description of the road which, upon the trial,
turns out to be inaccurate or uncertain, provided that it be
described as a direct road, advantage can only be taken of the
error by plea in abatement, and not under the general issue («).
Out of re- The prosecutor then goes on to shew, that the way is out of
P^ir- re])air ; and the liability of the parish in ordinary cases to amend
it being presumed, and therefore not required in proof, the case
in support of the indictment is so far sustained as to require an
answer from the parish.
Other evi- Other evidence in support of the obligation to repair maj',
dence. however, unquestionably be given ; and it need hardly be said,
that upon almost every indictment the proof varies according to
the circumstances of the case.
Prior convictions are not unfrequently resorted to, for the
purpose of fixing a parish, inasmuch as they are conclusive evi-
dence against the parish. Thus, where a parish consisting of
three townships was indicted for not repairing a highway, the
township of B. pleaded, that each township had, from time im-
memorial, separately repaired the highwavs within its bounds,
and that the highway in question was in the township of E. The
custom so alleged was traversed by the crown. Several indict-
ments against the parish were produced on the part of the prose-
cution, to which it appeared that a plea of not guilty had been
put in, and on which the parish had been convicted. And by
Le Blanc, J., " The records prima facie disprove the custom
alleged." The defendants offered to shew, that the inhabitants
of B. were not aware that pleas of not guilty had been pleaded,
and the judge said, that he would admit evidence to the effect
that they were pleaded only by the inhabitants of the other
townships ; for he said, that the rights of the township of B.
could not be affected by what the others exclusively did. The
custom, however, was negatived on other grounds, and the de-
fendants were convicted (6). Again, upon an indictment against
the inhabitants of St. Pancras, after the case for the prosecution
had closed, the defendants produced a copy of a record of con-
viction u])on an indictment against the inluibitants of the parish
of Islington for not repairing tlie road in question ; and Lord
Kenyon held, that tliis record was conclusive evidence against
the j)arish of Islington (r). " I admit," said the learned Chief
Justice, " that had there been an acquittal, the record could not
have been evidence for tlie parish of Islington. The reason why it
(r;) 1 Stark. .S.57, Ilex v. llammersmitli Iiiliabitants.
{b) 2 Carnpb. .19-1., Hex v. Kar.lisland.
(c) Teake, N. P. Cases, 220, Kex v. St. Pancras Iiiliabitants.
CHAP, x.] Er'uleiur. 271
would not have been evidence for them, is because some other
parties might have indicted them, and those parties could not
be bound by this record." " Unexplained/' added Lord Kenyon,
" this is conclusive evidence."
Such are the principal heads of evidence applicable to a public
highway. But there are occasions u])on which some of tliese
cannot be made available in support of the riglit. Thus, evi- Reputation.
deuce of reputation cainiot be received in general j)usl litem
motam. " Re])utation ", said Lord Ellenljorougli, respecting the
case of a prescription, " is in general \veak evidence ; and when
it is admitted, it is the duty of the judge to impress on the minds
of the jury how little conclusive it ought to be, lest it should
liave more Aveight A\'ith them than it ouglit to have." («) The
defendant was indicted for not repairing a highway in Stafford-
shire, which it was alleged he was bound to repair ratione
ienu7'ce, and on the part of the prosecution a bond executed sixty
years since was offered as conclusive evidence of the obligation
to repair. It was conditioned to abide the award of J. B. de-
ceased ; and the a\\'ard determined that the tenant and occupier
of N. farm, and not tlie township, was bound to keej) the road
in repair. The defendant was tenant and occupier of A\ farm.
The judge * said, that as a tenant could not bind his landlord,
the bond could not be received in evidence at all, and that the
other document could not be received as an award, whatever
effect it might have as evidence of reputation. It was then ob-
jected for the defendant that, being pout litem viotatu, the a\\'ard
was not admissible even as evidence of reputation.
Dampier, J., " The award must either be received as an
adjudication, or as evidence of reputation. I have already said
I cannot receive it as an adjudication, for it could only be bind-
ing on an individual who AAas a party to the admission, and
could not affect Lord Shrewsbury, who was seised in fee of the
premises, or any person subsequently holding under him. I am
likewise of opinion, that it is not admissible as evidence of re-
putation. The reason why the declarations of deceased persons
upon public rights made ante litem motam, when there was no
existing dispute respecting them, is, that these declarations are
considered as disinterested, dispassionate, and made without any
intention to serve a cause, or to mislead posterity. But the case
is entirely altered post litem vmtam, when a controversy has
arisen respecting the point to which the declarations applv- De-
clarations then made are so likely to be produced by interest,
prejudice, or passion, that no reliance can safely be placed upon
them ; and they would more frequently impose upon the under-
(a) 1 M. & S. 687.
* Dampier, J.
272 Evidence. ' \c,\\kv. x.
standing, than conduce to tlie elucidation of truth. It lias there-
fore been wisely decided, that evidence of reputation arising post
litem motam shall not be admitted. Was there not lis vwia at
the time this award was executed by jMr. G. ? The very sub-
mission to him shews, that the question was then agitated be-
tween the township of A. and the occupier of A^. farm, which of
them was bound to repair this highway. What deceased wit-
nesses then stated to the arbitrator would not be receivable ;
and his ojiinion formed upon that, and expressed in his award,
cannot be entitled to more credit." (o)
Award. An award, indeed, must be acquiesced in by the parish sought
to be charged, before it can be operative, and so it was holden,
where such a document, executed by virtue of an enclosure act,
was offered in evidence by a parish indicted, to shew that the road
in question was not locally situate within the parish. The
learned judge refused to receive this last-mentioned award, un-
less it could be shewn, that the notices required by the act had
been given. For the commissioners had been authorized to as-
certain the parochial locality of roads belonging to the adjacent
and contiguous parishes, after having given previous notices to
the parishes to be affected by the award. A verdict was found
for the crown.
Upon a review of this case before the Court of King's Bench, the
learned judge reported, that he should have admitted the award had
the usage been pursuant to it, presuming that the proper notices
had been given ; but that, in this case, the award seemed to be
wholly unknown until the prosecution. And the court dis-
charged the rule for a new trial. For although it is intended,
according to the general rule upon the subject, that a person re-
quired to do an act, for the omission of whicli he would be criminal-
ly answerable, has duly performed it, until the contrary appears ;
yet, in the case before the court, there was negative evidence, to
wit, that the parish indicted had continued to repair, and thereby
the presumption, that all had been duly performed, failed, for if
that were so, they ought not to have continued to repair (b).
Defence by Under not guilty, the parish cannot give any thing in evi-
parish. dence, except that the highway is in repair (c). That is, of
course, admitting that the road is a public passage, that it is si-
tuate within the parish, and that the particular part which is
ruinous is so situate (rf). In fact, upon not guilty, the defend-
(a) 3 Campb. 444', Rex v. Cotton.
{b) 2 M. & S. .558, Hex v. Ilaslingfielil Inhabitants.
(r) Comb, .'j'jfi, Rex v. Irelon Inhabitants. 1 Vcntr. 256, Anon. 1 Mod.
1 T2. Carth. 212. So also it was wiierc a man was indicted for not working at
the higliways upon notice. Comb. 312, Rex v. Terrcl.
i'l) Sec Stark, on Ev. Pt. IV. p. G71. Archbold Grim. PI. p. 418.
CHAP. X.] Kr'uh'}ice. 273
ant may controvert ovory thing, wliicli tlie prosecutor is bound
to prove (rt). Now, as the prosecutor must shew, upon this in-
dictment, that the place is a hij^hway — is within tlie parish —
and is otit of repair, it follows, that the parish may disprove all
these things by opposite testimony.
The same rule prevails upon a presentment as upon an indict-
ment (/;). There is, however, an exception to the rule Avhere the
obligation to repair is transferred from the parish to other per-
sons, by an act of parliament, because all are supposed to be
privy to an act of that kind, and to have cognizance of it (c).
Upon a special plea that some other persons are liable, the
parish must be prepared to prove that allegation (fZ), as, that A. B.
is bound to repair ralionc iejiurcv, &c.
Tlie record of an acquittal, upon an indictment against the
parish, regarding the same piece of highway, is not evidence in
their favour, upon a special plea, because some other party might
indict them, -who would not be bound by the record. Nor is the
record of a former conviction evidence against them, if thei/
plead speciallij that others ought to repair. Although, upon
their pleading the same plea to a subsequent indictment, the re-
cord of a judgment after a verdict against them, ^\'ould, pro-
bably, be conclusive evidence against them (e).
A very different rule prevails where the indictment is against Evidence
a particular district, as a township, &c. In this case, the com- "P°" »ndict-
mon law obligation does not exist, and, consequently, upon the ^ ]pssp^ fUs
plea of not guilty, the prosecutor must enter upon the particular trict than a
obligation which lies upon the defendants to repair the road in parish,
question. Therefore, an immemorial custom to repair must be
proved, in addition to the facts of the Avay being public and of its
being out of repair. But no consideration for this liability need be
shewn, as in the case of charging another parish with the repair {J").
The subject, independently of the question of evidence, has been
discussed at large in the sixth chapter, which treats gencrallv of
the repair of ways. Nevertheless, it should be observed here, that
if the prescription stated in an indictment against a township, be
that the inhabitants have been immemorially used to repair all
roads situate within it, which, but for such usage, would be re-
(a) 1 Str. 183, per Eyre, J.
(6) 2 Wms. Saund. 138, n. 3.
(c) By Lord Ellenborou£;h, 3 Campb. 223.
(tc
have the effect of relieving the ])urchaser from the obligation, be- ''^'"^'■^•
cause the liabilitv cannot be severed. And, therefore, where part
of the demesnes of a manor were aliened, it was holden, that an
indictment or an information would lie against any or all of the
alienees ; and therefore the defendant was convicted (i). Tlie
judgment, however, was subsequently arrested for Mant of an
allegation of some prescriptive liability to repair, or that the
liability arose by reason of tenure (c). It was said upon the
same occasion, that where a man is obliged to repair a bridge, his
tenant for years being in possession will be obliged to do it ;
and if he fail, he will be indictable for it (d).
In an indictment against a county, they pleaded that i\Ir. M.
was liable ralionc tenura;. It appeared that tlie bridge had always
been repaired by the Cadogan family, that JMr. M. purchased the
whole of an estate belonging to that family and liable to the re-
pair, except 100 acres; and that since the conveyance. Lord
Cadogan had continued to repair the bridge. It was holden upon
this, that as Lord C. still retained an ownership over part of the
property, and had repaired since the alienation to Mr. M., the
inference would be, that he was still liable in respect of the
portion remaining to him ; and a verdict \\'as accordingly given
against the county. A new trial was moved for ; but the
judges said, that the defendants had not maintained their plea (7
And here we must advert to a difficulty which has arisen as
to the reception of hearsay evidence in support of a claim of this
nature. This question, indeed, upon which differences of
opinion have occasionally prevailed amongst learned judges, em-
braces the evidence of prescriptive rights generally, which are
strictly private, there being no doubt of the propriety of admit-
ting reputation as evidence of public rights. The weight of
opinion seems indeed to preponderate against the introduction of
such proof, but it is a point upon which much probably will be
said before the question is finally set at rest. We are not, how-
ever, without some authority in favour of the evidence above
alluded to. Thus, it is laid down in a book of great credit, that
in questions of prescription it is allowable to give hearsay evi-
ence in order to prove a general reputation ; and that, Avhere
the issue was of a right to a way over the plaintiff's close, the
defendants were admitted to give evidence of a conversation be-
I tween persons not interested, then dead, wherein the right to
the way was agreed (c). There does not api)ear to be any deci-
sion to the contrary of this on the subject of rights of way, but
there are several determinations and declarations concerning
other prescriptive rights, some in favour of, some against the
evidence (d). And it seems, that the practice of the Western
and Northern Circuits has been to receive the evidence, while
that of the Oxford has uniformly rejected it (e).
Lord Kenyon expressed himself very forcibly upon one occa-
sion. " Evidence of reputation upon general rights is receiv-
able, because all mankind being interested therein, it is natural
to suppose that they may be conversant with the subjects, and
that tliey should discourse together about them, having all the
(a) See ante, Ch. I.
(b) 2 Leon. 148.
(t) Bull. N, P. 29.5, Skinner v. Lord Bellainont, cited there,
(r/) See Stark, on Ev. Pt. IV. p. 1208, and Phil, on Ev. Vol. 1. p. 2G1. All
the authorities are collected in these books on Evidence.
{c) 1 1 East, S29, 330.
CHAP, x] Evidence. 285
same moans of information. IJut liow can tin's apply to private
titles, cither with regard to particular customs or private pre-
scriptions? How is it possible for strangers to know any thing
of what concerns only these private titles ? " (a) " In such cases,"
says Mr. Phillips, " common reputation appears to give no
satisfoctory information, and to be inapplicable to the point in
issue." (/;)
In a case, where hearsay evidence tending to abridge a right
of common in respect of the season for enjoying it was held ad-
missible l)y the Court of King's Bench, after observing that mo-
duses, and boundaries of parishes might be proved by traditional
testimony, as affecting a large number of occupiers within a dis-
trict, and so partaking of the nature of public rights, IMr. Justice
Dampier said, that there might be particular cases where it would
be difficult to press the distinction, as in the instance of a mere
private right of way over a particular field ; perhaps it might not
apply there, added the learned judge (c). However, under either
view of the case, a foundation for the admission of such evidence
must be laid, by first proving an exercise of the right, which lets
in reputation (d), and in no case ought evidence of reputation to
be received, except a foundation be first laid by other evidence
of the right (<,') *.
A claim of a right of way in respect of an estate for the de- IVIessuage.
fendant, and all those, &'c. his and their tenants, farmers, and
occupiers of that estate, was held to be sustained by evidence,
that the defendant was seised of an ancient messuage in the parish,
although the messuage was in the occupation of a tenant, and the
defendant occupied a newly built house in the parish at the time
of the alleged trespass. The plaintiff's replication had denied the
right as claimed, and that was the issue at the trial {J").
(a) 13 East, 329.
(b) Phil, on Ev., Vol. I. p. 264.
(c) 1 M. & S. 691. See 12 Vin. Ab, 118, pi. 9.
(d) Id. 690, bv Dampier, J.
(e) 14 East, 330, by BuUer, J.
* Unless strongly corroborated, this kind of testimony is by no means to be
confided in, even if it should, hereafter, be deemed proper to admit it generally.
But the argument against the admission, that the common belief of the existence
of a right amongst inhabitants and neighbours is of no avail, seems hardly enti-
tled to so much weight as to exclude this kind of evidence by virtue of its own
force. For as in the case of a highway, the evidence of reputation is fortified by
the continued user, so also would the traditional testimony be strengthened' by
evidence of a long exercise of the right. On the one hand, there is necessarily a
greater power of evidence because of the unceasing and general traflic which tal^es
place on a highway ; but on the other hand, the author cannot help suggesting,
that the residents in every neighbourhood are so much interested in comparing
and investigating the rights which appertain to each otlier, that, like members of
the same society, they are equally well acquainted traditionally with every visible
enjoyment of rights withintheirdistricls, and are especially cognizant of easements so
openly used as are rights of wav, wliich cannot be exercised privatelvand in a corner.
(/) 16 East, 34.S, Stott v." Stott.
286 Evidence. fciiAP. x.
Termini. The termini of the way claimed must be proved as laid. And
thus it was said of old by Chief Justice Richardson that you must
prove the way, from whence it is, whither it goes, and over what
land (a).
Too much care cannot be adopted, in reconciling the proof
with the claim disclosed in the pleadings. Thus in a case
already mentioned, the right demanded was a way from such a
place to the village of Allesley, and so from thence back again,
&c. Between the place from whence tlie way was said to arise,
however, and the village mentioned, there was a close lying in
the direct line, which had been conveyed in fee to a stranger
without any reservation of the right of way, and thus the ease-
ment, as prescribed for, stopped short at that intermediate close.
The court said, that this might be a good prescription to go
towards Allesley, but certainly not to tlie village, and the verdict
was accordingly entered against the right of way (6). However,
in another case, where an intervening close was in the possession
of the party who claimed the privilege, the court said, he should
nevertheless recover, for he had in that case a clear right to go
from one end of the line of way to the other ; whereas, in the
first case, another j^erson possessed the close adversely to the
right of the claimant (c).
It is no ground for setting aside a prescription, that a larger
right is proved than that pleaded. Thus, the defendant proved
a prescription to use a way over the locus in cjuo for certain inhabit-
ants of VVater Eaton and other towns to go toLeighton and Woburn.
But the prescription as pleaded was for the inhabitants of Water
Eaton only. And by Probyn, J. "the proving more does not
vitiate the prescription." Verdict for defendant (d).
Evidence of a way for all manner of carriages will not neces-
sarily support the claim of such a right for all manner of cattle.
But it is a question for the jury to say whether a right of way
for cattle is to be presumed from the usage proved of a cart-way,
&c. Such a right may be inferred by a jury, but it is only evi-
dence, and they are to compare the reasons which they have for
forming an opinion on cither side. The usage affords evidence
of the right commensurate only ^ith the user*. As, for instance,
there may be good proof of a right to drive pigs along a certain
way, but the user of the way for pigs is no proof of a right of
way for oxen (t). ]Mr. Justice Chambre ditfcred from the rest
(a) Liu. Rep. 295.
{b) 1 East, 377, Wiiglit v. Rattray,
(c) Id. 381, .laclcsoii v. Sliillito, cited tiiere.
(c/) Selw. N. P. 7tli ed. p. \3U, Fountain v. Cook. See id. 428, 1 Browiil.
177. Cartii. 219.
• Mr. Justice Chambre dissented from the position in the case quoted below,
(t) 1 Taunt. 279, IJnllard v. Dyson.
oiiAP. X,] Evidence. 287
of the court upon this occasion ; he said, that as a riglit of way
for carriages, and also for driving liogs had been made out in
proof, a prima J'acie case in favour of a right for all manner of
cattle had been shewn, and that the hurtlien of ])roving a re-
striction of the general easement ought to lie upon the grantor.
The learned judge added, that, for one case where the evidence
of restriction would be lust in consecpience of a decision to that
effect, a thousand cases would ha])peu where a restriction would
be created which did not exist in the original grant (a).
Again, evidence of a right to carry corn and manure over the
locn.s in quo Avas held not to give a general and unlimited right.
The question arose in an action of trespass, and it appeared,
that the land in dispute was a head-land between a close belong-
ing to the plaintiff and some land of the defendant, that this
latter had a quarry in his field, from which he was in the habit
of carting lime daily over the locus in quo. The defendant
urged, that from the right of using the road for agricultural
purposes, a right to use it for all purposes might be inferred.
" This", said JMr. Baron Wood, " is not the law." There being,
however, some slight evidence of a general user, the learned
judge left the matter to the jury, who found for the plaintiff,
thereby deciding against the unlimited right (h). It follows,
from a review of the foregoing cases, that evidence of user is
necessary to sustain the prescriptive claim. In trespass, the de-
fendant justified in respect of a right of way, and for the pur-
pose of explaining an ambiguity in the award of commissioners
under an inclosure act, he shewed, that the occupier of his tene-
ment had enjoyed the road in question for nearly fifty years sub-
sequent to the making of the award, and that one of the
commissioners, who was a party to the award, had occupied the
plaintiff's close soon after the award, and had left a space of
ground along which the defendant passed, unploughed, for the
purpose of being used as a road. This evidence having been
received, and a verdict found for the defendant, a new trial was
moved for on the ground that parol evidence of the act of the
commissioner could not be received to contradict his award. But
the court refused the rule, observing, that the language of the
award being ambiguous, it was competent to go into evidence of
the enjoyment, in order to see what was the meaning of those
who worded it (c).
As the plea of right of way by a copyholder usually sets out. Evidence of
that there has been an ancient and laudable custom from time ''ght of way
immemorial for every customary tenant of the defendant's cus- j"''^"Py-
tomary tenement to have the right claimed, evidence must be
(a) 1 Taunt. 287.
(6) Holt, N. P. Cases, 435, Jackson v. Stacey.
(c) 5 Taunt. 752, Wadley v. Bayliss.
288
Evidence.
j^CHAP. X.
given of the existence of tlie custom. Tlie copyholder's title
must then be shewn, together with his user of the privilege.
Evidence of So where a custom to have a towing-path along the banks of a
custom. river is asserted, the usual evidence in support of an old usage
should be adduced, such as the testimony of aged witnesses,
deeds of antiquity, &c.
Evidence of
way for a
tenant.
Where a tenant contends for a private right of way, his pos-
sessory right must be shewn, such as his lease for years, or de-
mise from year to year ; proof of his entry upon the land, and of
the privilege, together with the exercise of it, must then be
tendered.
bv grant.
Evidence to If it be intended to claim a way by grant, it is scarcely ne-
sustain a ccssary to observe, that the deed which gives the title must be
right of way produced in evidence. This is, of course, the best and most au-
" "'""* thentic proof of the casement demanded by the pleading. If
the deed be lost, and there have been an uninterrupted user of
the way for a considerable period of time, still, by proving the
user to the extent mentioned, the jury may be warranted in pre-
suming a grant originally made, but which, as stated in the plea,
may have been destroyed by time or accident. Thus, in a case,
where a right of way by deed, which deed was said to have been
lost by time or accident, was disputed in an action of trespass, it
appeared, that all ways over certain commons, wastes and mes-
suages, had been extinguished by virtue of an inclosure act ;
that commissioners were to set out new ways, both public and
private, and that by their award, an occupation way was assigned
to John W. by mistake for Joseph W. (the person under whom
the defendant claimed). The road, consequently, could not be
legally enjoyed by virtue of the award. But it also turned out,
that the occupiers of the defendant's close had always used the
occupation-way over the locus in quo for upwards of twenty
years, and that they had not used the way set out under the
award for the defendant's estate. Further, it was proved, that
with the exception of a year or two (where there happened to be
an union of the plaintiff's with the defendant's close,) there was
an adverse user over the plaintiff's close. Fourteen years since
a ditch was cut between the two closes, and at that time a piece
was left uncut for the defendant's tenant to pass over into the
plaintiff's moss-dale, and wlien the latter was ploughed, room
enough was left for a road to communicate with the defendant's
close, and when some turf was set in the way, it was twice re-
moved by tlie d(!fendant's servants. No leave was at any time
asked by the defendant's people, according to the evidence, nor
was any interrui)tion manifested till about two years before the
action. It was relied on for tlie defendant, that after this unmo-
lested usage for more than twenty years, the jury would be jus-
CHAP. X.] Evidence. 289
tified in presuming a grant. The Iciirned judge presented to
them the distinction between the enjoyment of a way by leave
or favour, and under a claim or assertion of right, and said, that
if they thought the defendant had used the way by licence, tliey
must rind for the plaintiff; but that, on tlie contrary, if they
considered that there had been an adverse user for upwards of
twenty years, they should rind for the defendant. There was a
verdict for the defendant, which tlie Court of King's Bench re-
fused to disturb, holding, that such a length of enjoyment was
strong evidence of a right (a). In a case of a similar descrip-
tion, where, however, the result was diflPerent, the same doctrine
was laid down and subsequently recognized : it was an action of
trespass. The premises of the plaintirif and defendant adjoined to
each other. There had been an unity of possession, but the pre-
mises were afterwards severed, though the right of way was not
reserved. There was conflicting testimony as to the undisputed
use of the way, but it clearly appeared, that the right had been
constantly contested. Gaselee, J. told the jury, tliat, if
upon the issue [[which was a denial of the grant]] they thought
the defendant had exercised the right of way uninterruptedly
for more than twenty years, by virtue of a deed, and that that
deed had been lost, they would find a verdict for the defendant ;
if they thought there had been no way granted by deed, they
would find for the plaintiflf. The jury said, they could not find
any deed, and found for the plaintiff. This direction of the
learned judge was held to be correct by the Court of Common
Pleas (6). And by Park, J. " Nothing but uninterrupted
usage can raise a presumption of a grant ; here the usage was
always interrupted " (c).
Evidence that the defendant had a way over close A. for the
occupation of his close B. would not, it seems, be sufficient to
sustain a similar right over close A. for the enjoyment of a newly
purchased close, C.{d). For the termini being required to be ac-
curately stated in the pleading, must be as accurately proved.
But where the evidence was, that the defendant had a barn, and
had purchased a way over the plaintiff's land to that barn, and
afterwards had bought other lands lying contiguous thereto on
the one side, and to a haven on the other side, and had carried
carriages that way to the barn, and through it over his newly
purchased land to the haven. Lord Chief Baron Hale said, " If I
purchase a general way to such a place, I may go from thence on
my own ground which way I please, though I purchase the
ground after the way purchased." (e)
(a) 3 East, 294, Campbell v. Wilson. See ante, p. 19.
\b) 3 Bing. 115, Livett v. Wilson. Ante, p. 19.
(c) Id. 118.
(rf) See 1 Lutw. Ill, Laughton v. Ward. Stark, on Ev. Pt. IV. p. 1678.
(e) 12 Vin. Ab. 258, Heynsworth v. Bird, Norfolk Summer Assizes, 1665.
u
290 Evidence. ^chap. x.
Although this last case may seem, at first sight, to clash with
the other quoted from Lutwyche, and, indeed, with the general
law on the subject, which forbids a man to use a way otherwise
than according to his grant, yet it cannot escape observation, that
Lord Hale considered the above as a general way, which not being
subject, therefore, to the occupation of any particular close, might
be used freely, and for all purposes. We have seen, that, where
a man has a special right of way granted to him, he need not re-
sort to a general right, which may be contested, but may rest
upon his original title («).
In an action on the case for not completing a title, it became
necessary for the plaintiff to prove a right of way. He produced
deeds by which the right had been granted, and pointed out the
clauses which gave it. It was objected, that the deeds should be
made evidence by producing the subscribing witnesses, but Lord
Kenyon held such proof to be unnecessary. The learned Chief
Justice said, that Avhere the question was respecting a title, he
would never allow, that the party should be called upon to prove
the execution of all the deeds, deducing a long title, more espe-
cially in a case where there had been a possession. The deeds
were therefore admitted without proof of the execution (6).
Evidence to The claim of a way by a non-existing grant is very nearly al-
sustain a ijg^j ^^ ^.}jg mode of establishing the right to such an easement of
rio^ht of way "^<^^**'^J/- This latter owes its existence upon most occasions, if
from ne- ^^0^ entirely, to a grant, either express or presumed by implication
cessity. of law. For the ancient idea, that a man, who found himself in
possession of a close to wliich there was no access except over the
land of his neighbour, might, therefore, go over the strange land
in order to reach his own, as of right, is not now received with
any indulgence.
The testimony applicable to a way of necessity must, of course,
depend upon the peculiar circumstances of each claim. For ex-
ample, if a party having several closes, sell all, except one, which
lies in the middle of the rest, as the law, in this instance, re-
serves a way for him, he must shew the grounds upon which he
claims the privilege. So, if one buy land, to which he cannot at-
tain except by passing over the vendor's land, he must adduce the
facts in evidence, for together with the purchase, he takes, by
operation of law, an easement necessary to the enjoyment of his
interest. So, if there be a right to take tithes, or wreck, or any
other profit permitted by the law, it must be sustained in evi-
dence by shewiii"?: a title to the ])roperty in res})ect of Avhich the
way ought to be hud, and then the law will interfere to protect
(«) 8 East, 4, Allen v. Ormond.
(6) I Esp. 185, Tlioiiipson v. Miles.
CHAP. X.] Evidence. 291
the party in the due exercise of his right. This subject of ways
of necessity has been already discussed at some length in the se-
cond and fifth chapters, to which the reader is referred for further
information.
With regard to the evidence necessary to disprove these claims Evidence in
of rights of way, as it is very usual to deny their existence, so it answer to
becomes incumbent on those who resist the easement to maintain f^!^ /: '^^"'/
the negative which is tendered in issue. As soon, thererore, as ^^,ay_
the proof in support of the right has been gone through, the other
side must bring forward witnesses or documents to shew, that
there is no foundation for the privilege demanded. For ex-
ample, it may be established, that the user of the way in dispute
has arisen by virtue of a revocable license, and that the license
has been revoked ; that the person enjoying the way has acknow-
ledged an user by sufferance only ; that in a contest concerning
the same right, a verdict has passed against the claimant, and,
in this case, the record, or a copy of it, must be produced. So
again, where the right has been traversed, it may be shewn, that
the way has been stopped by an order of justices ; upon such an
occasion, it ^vill be indispensable, that the order relied on should
correspond with the form prescribed by the act of parliament (a).
And thus, extinguishment of the way by any legal operation, as
by unity of possession, will afford a sufficient answer.
In the event of a claim of a way from necessity, proof that
there is another way will, in general, defeat the presumption
which the law raises, and, according to a late decision (i), proof
that the necessity, which occasioned the user of the way, has
ceased, will be tantamount to an extinguishment.
There are, unquestionably, many other media of evidence ca-
pable of rebutting a claim of the land above alluded to, different
proofs being required to meet exigencies, which vary somewhat
almost in every case.
(a) ] East, 64, Davison v. Gill.
(b) Holmes V, Goring, 2 Bing. 76.
u2
292
Indictment
against
parish.
Against
county, for
non-repair
of a bridge.
CHAPTER XL
Of the Trial, Judgment, Costs, ^x.
The venire, upon an indictment against a parish, for the non-
repair of a road, may be awarded to the sheriff of tlie same coun-
ty where the way lies, though, clearly, the jury must not come
from the parish indicted.
In the case of an indictment for not repairing a bridge, it has
been said, that one of the county is a good witness, though not
a good juror (a) ; and, indeed, this is one of the occasions upon
which the venire should not be laid within the county where the
offence complained of has occurred, as an impartial trial cannot
be had in the county where the bridge lies. Thus, in a question
between the citizens of Norwich and the county of Norfolk, as to
the repair of certain bridges, tlie trial took place in Suffolk, and
it Avas objected, for the defendants, that there had been a mis-
trial, because the defendants could give nothing in evidence but
that the bridges were in repair. But three judges* held, that the
trial had properly taken place in Suffolk, for the question would
naturally arise, whether the bridges were in Norfolk or Norwich,
and the result of that would be, that one or the other must re-
pair, and they said that all the points were put in issue by the
plea of not guilty. The other judge t thought, that parcel or
not parcel could not be given in evidence upon not guilty ; but
there being three to one, judgment was given for the crown [b).
So, again, upon an information against the County of Wilts,
for tlie non-repair of Laycock bridge, the court said, that the at-
torney-general might take a venire focias to any adjacent county,
that it might be de corpore of the whole, or de vicineto of some
particular place therein next adjoining, and that the venire should
come from thence for the necessity of an indifferent trial (c).
The venire was moved for to the county of Berks (d). The
(a) 6 I\Iod. 307.
* Pratt, C. .T., Powys and Eyre, Js.
■f Fortescue Aland, J.
(6) 1 Str. 177, 181, Kcx v, Norwicii Inhabitants.
Mansfield, 2 Burr. SM.
(r) 8 Salk. 881, the Queen v. Wilts Inhabitants.
S. C. recognized by Lord
S. C. G Mod. 307.
(f/) S. C. as above, (i Mod. 19),
ftO?}, Anon. See 1 Vontr. <)1.
S. C. Holt's cases, 339. S. P. 12 Mod.
CHAP. XI. 2 Neio Trial. 293
same course would be pursued if a whole county were interested
in the result of an information for not repairing a higliway («).
In an issue, houover, to try a right of way, merclv private. Trial of
the venire is local (J)). ' Hglitof way.
We proceed to the consideration of new trials. The general N^ew trials
rule is, that where a defendant has been (lajuillcd in a case of °" '"'^"^'-
misdemeanour, no new trial can be granted. Tlie course is
different where the party has been convicted, for Lord Kenyon
has declared, that there is no authority to shew, that the guilt
or innocence of a person so circumstanced cannot be again in-
quired into (c-). The rule of not disturbing a verdict of ac-
quittal for a misdemeanour, has been held to extend to indict-
ments for not repairing highways. A new trial v/as moved for,
on the ground that the verdict was against evidence. But Lord
Ellenborough told the counsel, that unless he could point out
some distinction between the case of a nuisance and other cri-
minal cases, the general rule was not to grant a new trial after
verdict for the defendant upon the merits. To be sure, it is in
the nature of a remedy for a civil right, but being in form a
criminal proceeding, the defendant can be punished criminally (d).
The point, however, had been previously decided in a case, where,
after an acquittal of a parish for non-repair, a new trial was
moved for on the ground of misdirection, or overruling evidence
at the trial, by reason whereof the parish were acquitted. But
the court observed, that it was a criminal case, and that new
trials were never allowed where a defendant was acquitted (c).
It should be observed here, that the new trial just mentioned as
having been moved for, was on the ground of misdirection. j\Ir.
Justice Dampier, in Rex v. Mann, expressed a slight opinion,
that a new trial would be granted if the judge were to misdirect
the jury. " In penal actions," said tliat learned judge, " where
the verdict is for the defendant, the court, I believe, do not grant
a new trial, except for the misdirection of the judge.'' {J)
However, independently of the authority cited above to the
contrary, there is also a dictum of Lord Ellenborough. It
was suggested by counsel, that in a criminal case, a new trial
(fl) 12 Mod. 603, Anon.
(6) See Cro. El. 898, Lord Sands v. Finder. Hob. 190, in Gogle's case. But
those cases were before the jury were summoned from the bodi/ of the county ac-
cording to the present practice.
(c) 6 Term Rep. 638.
{d) 4 M. & S. 337, Rex v. i\Iann. Lord Ellenborough referred to Rex v,
Revnell, 6 East, 315. An indictment for the non-repair of a chuichvard fence.
S. P. 1 Stark. 517, n. at Appleby, cor. Wood, B. S. C. scmbl. Rex. 'v. Burbon
Inhabitants. 5 M. & S. 392, S. C. See post. 1 B. & A. 63, Rex v. Wands-
worth inhabitants. Id. ()7, (a) Rex v. Cliigwell Inhabitants,
(e) 1 Wils. 298, Rex v. Silverton parish.
(/) 4 M. & S. 338.
294 New Trial. [[chap. xi.
might be granted in case of misdirection. But by Lord Ellen-
borongh : " I do not know any such distinction as that wliich
has been suggested." («) But again, on the other hand. Lord
Chief Justice Abbott, upon refusing a motion for a new trial,
where the defendant had been acquitted for perjury, observed,
that "no new trial can be granted after a defendant has been
acquitted, unless on the ground of a misdirection of the
judge." {h)
There is, therefore, the decision in the case of the King
against Silverton, together with the opinion of Lord Ellenbo-
rough against a new trial by reason of misdirection, and there
are the opinions of Lord Tenterden and IMr. Justice Dampier in
favour of such a reconsideration.
Nevertheless, there is one other circumstance which has
pressed very much upon the court during applications of this na-
ture, namely, an anxiety that the right should not be compro-
mised or bound by a verdict which might be wrong. Where
a motion for a new trial was refused after the acquittal of a pa-
rish, the court said, that the rule might possibly be relaxed in
some cases where such rights Avould otherwise be compromised,
but that in the case before them [^non-repair of a highv/ay] there
was no such necessity, for a new indictment might be found (c).
And bv Lord Ellenborough : " Inasmuch as the right will not
be bound on the plea of not guilty, we do not think it would be
proper to break into the general rule on the suggestion tliat the
prosecution was merely intended to determine a civil right " ((/).
Such special circumstances, however, have occurred on other
occasions, as that if a verdict had been entered for the defend-
ant, the right Avould have been bound without a fair inquiry
into the merits of the case ; and the court resolved, consequently,
upon an expedient to siaij the judgment until the result of
another prosecution could be ascertained, and thereby adhering
to the rule of refusing a new trial. The county of IMiddlesex
were indicted for not repairing Kingston Bridge. The defend-
ants pleaded, that the bailiff and freemen of Kingston were
bound by immemorial custom to take upon themselves that bur-
then. The corporation of Kingston were also indicted for the
non-repair of the same bridge ; and both cases standing for
trial at the same time*, the indictment against the corporation,
the first in order, was first proceeded with. Evidence was
(«) 1 Stiirk. 51fi.
lb) 1 Chit. liep. :ib'\:
\c) 1 Stark. 517, ii. (a) at Appleby, cor. Wood, 13. Senib. S. C. 5 M. & S.
392, Rex v. Burbon Inhabitants.
(d) .<> i\r. & s. :mi.
* Sittings after Trinity Term, b3 G. 3.
CHAP. XI.] Stajjing I he Judgmenl. 295
Lnveri that the corporation were liable, but as the indictment
charged an mmemoriul obligation upon the bailifts and freemen,
whereas the bailiffs turned out to be officers of comparatively
modern creation, it became necessary to abandon that indictment,
and the defendants were acquitted. The indictment against the
county then followed, and as their plea had also alleged an im-
memorial liability on the ])art of the haiUJf's and freemen, it was
found impossible to sup])ort it, and the county were compelled
to submit to a verdict of guilty. Had judgment been entered
upon this verdict, it Avould, of itself, have been conclusive evi-
dence against the county ; and therefore the court made a rule
absolute for suspending the entry of judgment xmtil another in-
dictment (which had been in the interim ])referred and found)
against the corporation could be tried. The corporation were
found guilty upon the second indictment («).
Again, the parish of Wandsworth Avere indicted for the non-
repair of a highway. The defence was, that the road in ques-
tion was private, and not public. The evidence in supjiort of the
prosecution shewed, that a brick arch had been turned over a
slough at the expense of the parishioners ; that another parish-
ioner had compounded for eleven years successively for statute
duty, by repairing a part of the road, and that the parishioners
had constantly conveyed gravel from pits on Wandsworth Com-
mon over the way for the repair of other roads in the parish ; and
other proofs appeared in favour of a general user of this place as
a highway. The defendants called no witnesses, but the jury
found a verdict for them. Upon this an application M'as made
to the court for a new trial, which was refused ; but a rule for
staying the entry of the judgment was allowed (6). Lord Ellen-
borough said, that inasmuch as there was strong evidence of the
user of the place in question as a highway, it would be injustice
to the parties to refuse the indulgence conceded ; and his Lord-
ship observed, that if repairs be done by a p.irishioner under an
agreement with the parish, in consideration of his being excused
the statute duty, that is virtually a repair by the parish (c). The
court also took notice, that if the verdict were maintained, it
would be irresistible evidence against the prosecutor upon a sub-
sequent trial ; but they imposed a term that the parishioners of
Wandsworth (whose testimony could not be received according
to the general rules of evidence) should be examined at the next
trial (f/). Where a county wefe found guilty upon an indict-
ment for not amending a bridge, in consequence of their having
been unable to bring forward their case under the form of the
plea which they had put upon the record, the court directed a
(a) 1 B. & A. 61, note (d) Rex v. Middlesex InliabituiUs.
(ft) Id. 63, Hex V. Waiidsworlli Inliiibilants, S. C. 2 Chit. 2H2.
(c) Id. 66.
(d) Ibid.
296
Staying the Judgment.
[cnxp. XI.
New trial
in civil
actions.
Judgment.
Fines.
rule to be drawn up for staying the judgment, upon payment of
the costs of the prosecution. Lord EUenborough said, that if
the public exigency required it, the county must repair without
prejudice to their case ; and Mr. Justice Le Blanc added, that
the county might proceed to indict the parties whom they con-
tended to be liable (a).
Again, the county of Southampton was indicted for not re-
pairing a bridge. The plea was, that the INIarquis of Bucking-
ham ought to repair. After a verdict for the crown, it was
moved to have a new trial, or to stay the judgment until the
event of a trial with the IMarquis ; and the court permitted a
suspension of the judgment, not generally, but only until they
should make further order. Lord EUenborough in this case
observed upon the frequency of these applications since the in-
dulgence granted in Rex v. Oxfordshire, and said, that the
court did not like to increase the number of such applications.
He subsequently yielded to the reason assigned by counsel, that
the verdict would be binding on the county for ever ; but said
that all reasonable speed should be used to try the question, or
otherwise that judgment would be entered up on the verdict (6).
Where the merits of a cause have been fully tried, the court will
not grant a new trial. The defendant mistook the termimis a
quo, as laid in his prescription, it appearing that his way claimed
led from a private way instead of a common highway as he had
alleged, but he obtained a verdict ; and the merits having been
fully gone into, the court refused a new trial (c).
It was excepted in an old case, where a parish had been con-
victed for not repairing a highway, that the judgment was pre-
posterous, being that such a sum extrahatiir et levetur to repair
the said way, instead of levetur et extrahatur, and the judgment
was reversed for this error. The court put the comparison be-
tween it and the case of debt on bond for 10/., saying, that if
judgment in that last case were, " ideo consideratum est, quod
habcat executionem de pra^d. \0s., et recuperet, it would be
error." (rf)
The subject of fines has already been much discussed in the
chapter which treats of repair (e). It should be observed, how-
ever, that the fine imposed upon a conviction by a criminal
(a) 16 East, 223, Rex v. Oxfordshire Inhabitants.
{b) 2 Ciiit. Rep. 215, Rex v. Southampton Inhabitants.
(c) 3 Wils. 272, Sampson v. Api)leyard. And if the damages do not exceed
bl. the court will not grant a new trial, altiiough the verdict be against evidence.
It was so held upon a f]\icstion of a rigiit of way. 1 Taunt. 4'96, Roberts v.
Karr.
(r/) 12 Mod. lOy, Rex V, Raylev Turish.
(.) Ch. VI,
CHAP. XI. 3 Conviction. 297
information for the non-repair of a liighway cannot be expended
upon the repair of the way, whereas if the proceeding be by in-
dictment, it sliould always be appropriated towards such repair.
And therefore it is, that the courts are rehictant to give leave to
file an information for the olFence of non-repair, unless it be one
of great enormity (rt). Although, where the way was proved to be
very foundrous, and the grand jury had refused to find a bill of
indictment, the court permitted that measure to be taken {h) *.
When the court are about to impose a fine, a certificate by Certificate
justices of the peace, that a road is in good repair is a legal in- of repair
strument, and admissible in evidence after conviction (c). The ^°° ^^''
production of a false certificate of this kind for the purpose of in-
fiuencing the judgment of the court is, therefore, an indictable
offence (rf) t.
Where a party was convicted of not doing statute duty, and a Conviction.
distress warrant Mas put in, upon which he brought an action
of trespass, but was nonsuited, with leave to enter a verdict
for nominal damages, if the court should be of opinion that the
conviction was ^rong, certain objections were tendered against
(rt) Sav, 9:3, Rex v. Steyning Inhabitants.
(6) W^ Kel. (53, Rex v. Walbourne.
• The surveyor of a high road expended a considerable sum upon the purchase of
land without the consent of the trustees, and in direct contravention of an act of
parliament ; it was held, nevertheless, that he was not liable to a criminal informa-
tion, no corrupt motive having been alleged against him, for the court cannot con-
vert a civil into a criminal remedy. 1 Chrt. Rep. 702, Rex v. Friar. So again,
such an information was refused when moved for against certain commissioners
for pulling down a turnpike, the motion being grounded upon a suggestion of irre-
gularity in tlie time and manner of their meeting. Loft. J 99, Anon.
(c) f) IMod. 103, the Queen v. Cluworth Inhabitants. See Sty. 163, Rex v.
Mile End Inhabitants. 6 Term Rep. 631.
(f/) 6 Term Rep. 619, Rex v. Mawbey and others. It was said in argument
in the course of this case, that the statute of Winton was still in force as to high-
ways \, that by 2 Ed. 3. c. 6, the above statute was made an article of the peace,
the justices of peace being assigned commissioners with powers to inquire and
punish, and that, as to highways, such justices were a court of record. G Term
Rep. 630.
•f The court will not quash an indictment for non-repair, unless it be certified
that the way is in repair, as we have already seen in the sixth chapter. Tims, by
Foster, C. J. First take issue on the nuisance, or have a certificate that it has
been removed, else no exceptions to the indictment are allowable (a). The same
law is enforced upon an indictment for the non-repair of a bridge (6). But upon
an indictment against a person for not working with his team upon the highway,
an objection was raised and allowed, without any certificate of repair, because the
omission of working was considered not to be so important as the non-repair of
the way itself (c).
\ Cap. v., of that statute.
{a) 1 Keb. 256, Rex v. Randall. S. P. id. 291. S. P. Sty. 108.
(6) 2 Keb. 451, Rex v. Atwell.
((,•) Id. 354, Rex v. Wateier.
298
Costs.
l^ciiAP. xr.
Order for
imposing a
the validity of the conviction. Firsts that the order which had
been disobeyed was to perform the statute work^ or compound
for itj whereas the conviction was not performing the work, not
mentioning the composition. Next, it was not said that the
plaintiff kept a team, and, without a team, he could not be
called upon to do statute work. And again, it was not alleged,
that statute duty in kind Avas necessary. To the latter observa-
tion Lord Tenterden answered, that the necessity for statute-
duty in kind must have been ascertained before'.the surveyor's re-
quisition, and should, therefore, be presumed. And M'ith re-
gard to the other grounds of objection, the court considered, that
they ought to have been urged at the trial. The rule Avas, con-
sequently, refused («). The liability of the plaintiff to do statute
duty had also been denied, and upon that another objection to
the conviction was raised. But by Lord Tenterden : " If in this
late stage the question of liability could be raised, it might be
equally raised after an appeal to the sessions against the appoint-
ment of one surveyor for the whole parish, although they might
have decided that the appointment was proper, and one high-
Avay rate for the whole parish also proper. The impropriety
of rendering magistrates liable to be sued for acting upon such
a decision of the sessions is an additional reason for holding
that the verdict in this case was proper." (6)
An order for imposing a rate for repairing the highways Avas
quashed for two faults ; first, because it did not appear, but that
the statute labour was sufficient ; and, secondly, because only
the occupiers of land were charged, whereas others were equally
liable (c).
Costs.
In civil ac-
tions re-
specting
rights of
way.
As far as regards indictments or presentments for non-repair
of ways, the reader is referred to the sixth Chapter, where the
authorities upon the subject are mentioned.
Notwithstanding the apparent hardship upon a defendant, that
if the ])laintiff succeed in proving a trifling trespass extra viam,
he shall have full costs, although the issue upon denial of a plea
of right of way be found for the defendant, the defendant not
even being allowed costs upon that issue, and notwithstanding
that there have been conflicting decisions upon tlie subject, the
Court of Common Pleas and Exchequer have concurred in adopt-
(«) 7 B. & C. 391., Fawcett v. Fowlis.
{/>) Id. ;}!)(). 398.
(r) 1 Sir. tub. Rex v. Stroud Inhabitants. A highway rate is a debt, and the
assessor a creditor under the bankrupt laws, so that a denial to such a creditor is
evidence of an act of bankruptcy. 2 B. & B. 300, Lloyd, Assignee of Warwick,
V. Ilealhcolc.
CHAP. XI.] Costs. 299
ing a rule long acted upon by the Court of King's Bencli to the
effect above stated. Consequently, if to an action of trespass,
the defendant j)lead in justification a right of way, and the
plaintiff then newly assign, and recover a verdict upon the new
assignment, the defendant, so far from being entitled to the costs
of the trial, is not even allowed the costs of the justification if
found for him. So also it would be, if the issue on not guilty
were found for the plaintiff, and the defendant's plea should not
go to the whole of the declaration. In trespass the defendant
justified for a way, the plaintiff admitted the way, and replied
extra viitm : it was holden, that he should have full costs («).
So where the pleas were not guilty, the issue upon which was
found for the ])laintiff^ and next, a justification of a right of way
generally, to which the plaintiff replied by traversing the right,
and he also newly assigned, it was held, upon a verdict for the
defendant upon the justification, and for the plaintiff upon the
new assignment, that the latter should have full costs (6). If,
however, there be judgment bij default on the new assignment,
and a verdict for the defendant upon all the issues, he is entitled
to his costs u])on such issues ; and so it was determined in a case
where the defendant pleaded three prescriptive rights of way,
the issues on wliich were found for him (c). Again, where
trespass was brought for breaking the plaintiff's house, the de-
fendant pleaded not guilty as to the force and arms, &c. Se-
condly, a right of way at all times as to the residue, and thirdly,
a right of way in the day time only. The replications traversed
these claims ; and issues were thereupon taken, and there was a
new lissignment upon which the defendant suffered judgment by
default. There was a verdict for the defendant on not guilty,
except, &c. and also on the second special plea claiming a right
of way in the day-time. The plaintiff had a verdict on the first
special plea with 1*. damages and 40*. costs, and nominal da-
mages were assessed upon the new assignment. The master al-
lowed the plaintiff the general costs of the trial. Uj^on a rule
being discussed for the reviewing of this taxation, the court asked
the defendant's counsel, how the plaintiff could have avoided go-
ing down to trial, when the plea claiming a right of way at all
times was put upon the record, to which it was answered, that
the plaintiff should have suffered judgment by default on the plea
claiming the easement only in the day-time, and then, if the
(a) 2 Lev. 23i, Asser v. Finch. 2 Str. 726, Higgins v. Jennings.
S. C. 2 Lord Raym. U-t-t. 2 Str. lldS, Beale v. Moor.
{b) 1 East, 350, Martin v. Vallance. S. P. 3 B. & A. 443, Taylor v.
NichoUs, where the above decisions were taken for settled law. Barnes 129, Ib-
botson V. Brown. Hullock on Costs, Vol. I. p. 78, Cockerill v. Allanson, where
the way was pleaded by metes and bounds, contra. But the prior decisions are
now acted upon. See, however, the observations of Mansfield, C. J. 4 Taunt.
100.
(c) 8 Term Rep. 466, Griffiths v. Davies. S. V. 9 Price, 336, Harber v.
Rand, and see 3 Term Rep. 654, Day v. Hanks.
300 Costs. [chap. XI.
cause }iad gone to trial on the other issue on the right of way, the
plaintiff would have been entitled to the general costs of the
trial. The court being satisfied with that answer, made the rule
absolute for a review of taxation («). Here, it should be ob-
served, that there was a judgment by default as to the new as-
signment, and a verdict for the defendant on a special plea, as
well as not guilty, which covered all the trespasses mentioned in
the declaration. Secondly, although the plaintiff is not entitled
to have the costs of an issue found against him, yet the defendant
is not allowed those costs ; for where the plaintiff is said to be
entitled to costs, those upon the issues found for the defendant
being first deducted, it does not mean that tliey should be de-
ducted from the costs allowed to the plaintiflf", but from the ge-
neral costs in the cause (Jb). Thus, where the issues on not
guilty, on a right of way by grant, and on a new assignment
extra viam were found for the plaintiff; but those on a right of
way by prescription, and upon other questions on the new assign-
ment for the defendant, by which the plaintiff became entitled to
the general costs of the cause, the Court of Exchequer permitted
only the disallowance to the plaintiflf of the costs of the issues
found against him, and would not accede to the application on
the defendant's part, that the amount of the defendant's costs
should be deducted from those of the plaintiff (c).
In an action of trespass, the plaintiff having discovered an
error of the name of the parish, withdrew his record ; the conse-
quence of which was, that the defendant's witnesses, instead of
being discharged on the first day of the assizes, were obliged to
wait six or seven days, the cause having been removed from the
top of the list almost to the bottom of it. The issues were de-
termined thus : — the general issue (without damages), the issue,
or liberum tenementum (without damages), and the issue on the
new assignment, with 1*. damages, were found for the plaintiff,
and a plea of right of way was found for the defendant. It was
moved to allow the plaintiff the full costs of the cause, deducting
the costs of the issue found for the defendant, by not allowing to
the plaintiff any costs on that issue, and the court made the rule
absolute, considering themselves bound by the current of autho-
rities {d).
Whore tlic costs in a cause are adjudged to tlie defendant, but
the plaintiff having had some issue found for him, is entitled to
the costs of that issue, such costs mean only the costs of the
pleadings. It was so held, where a justification for a right of
(o) 1.3 East, 191, Tliornton v. Willianisoii.
(6) See 2 Price, 1.S9, by counsel argucmlo.
(r) 2 riiie, 130, Hopkins v. Barnes.
((/) I L. & U. 2'Zi, Trotnian v. lloUlcr. Sec 5 East, 261, Postan v. Stan-
wav.
CHAP, xr.]
Costs.
301
way had been found for the defendant (rt) ; and Mr. Justice
Park said upon that occasion, that wliere a plea which goes to
the whole of the cause of action is found for the defendant, the
costs of the cause go to the defendant, and the costs of the issues
found for the plaintiff go to the plaintiff; but that by the costs of
the issues, was meant the costs of pleadings only (6).
With respect to the certificate of the judge in actions of tres- Judge's
pass by virtue of the statutes 22 and 23 Car. II. it is only neces- certificate,
sary to observe, that if a right of way be pleaded as a justifica-
tion, that certificate is dispensed with ; for there is then an
admission upon the record, that the freehold may come in ques-
tion. To use the words of a learned judge *, in a case where it
was contended, that the defendant's deviating from the way in-
volved no question as to the freehold : " It involves the question,
whether the plaintiff has a freehold subject to an incum-
brance " (c). But the award of an arbitrator is not tantamount to
a judge's certificate, and so it was held, in a case of right of
way, where the arbitrator awarded 5s. damages to the plaintiff,
fojr an assault committed by the defendants while asserting
those rights. To the particular count which alleged the assault,
and to which the court referred the damages, there was nojustt-
Jication {d).
By the Birmingham paving act it was declared, that in all
cases where a verdict should be found for any defendant in an ac-
tion for any thing done pursuant to the act, &c. the defendant
should recover treble costs. Where some defendants had judg-
ment against them as commissioners under the act, and others
had a verdict in their favour, it was held, that these last should
have treble costs, although there had not been an entire ver-
dict (e).
The plaintiff declared in assumpsit against the trustees of a Staying pro-
turnpike road generally ; he went to trial, but v.ithdrew the re- ceedings till
cord, and after suffering a non-pros, sued the same trustees by P^>'™^"'^ "
name for the same cause of action. The court refused to stay former ac-
the proceedings in this last action, until the costs of the former tion.
had been paid (^Z").
Where a rule obtained by certain persons, inhabitants of a pa- Inhabitants
rish, to shew cause why a presentment against the inhabitants Presented
for non-
(a) 1 Bing. 275, Othir v. Calvert.
(6) Id, 276.
* Bayley, J.
(c) In Taylor v, Nichols, 3 B. & A. 444.
(d) 3 Term Rep. 138, Swinglehurst v. Altham.
(e) 2 Bing. 267, Hall v. Smith.
(/) 3 D. ^ R. 33, Pashley v. Poole.
repair.
302 Costs. []cHAP. XI.
should not be discharged, was discharged with costs, the court
granted an attachment against those persons for non-payment of
the costs, and not against the inhabitants («).
(a) 1 Smith, 168, Hex v. New Windsor Inhabitants.
JOS
ADDENDA.
Chap. III. p. 27.]] It is declared by the highway act, that if Owner's
the driver of a cart, &c. refuse to disclose his name, or that of "^"^^ paint-
his owner, to a justice under the circumstances therein men- on wag-
tioned, he shall be punished. The driver of a waggon, having ^nder 13
committed an offence against the act in the view of a justice, Geo. III. c.
placed himself before the board on which his master's name was 78. s. 60.
painted, upon which the justice stopped the horses, and laid
hands on the driver in order to inform himself of the ownership.
Upon a demurrer to a declaration in trespass for this assault
by the justice, it was holden that the driver had a right of ac-
tion (a).
P. 58, at the bottom.] But a mandamus will not lie against Mandamus,
commissioners for not setting out roads according to an act of
parliament, unless their proceedings be manifestly unjust. The
writ has been refused upon such an occasion (6).
P. 71j line 20, after " necessity."] So it is %vith respect to
paths to a mill, for being very necessary, they shall revive as
soon as the tenements come again to different hands (c).
P. 90.] Where the inhabitants of a parish submitted to a No costs
small fine, upon a certificate that the way was in repair, the where inha-
prosecutor applied for costs, but the court refused them, saying '^'^'^"'* ^"^"
that it would be contrary to the practice to allow them on such "^'' '° * "^'
an occasion, and a fine of 6,9. 8rf. was set (d).
(a) 2 D. & R. 600, Jones v. Owen.
(6) Lofft. 189, Anon.
(c) 8 Mod. 272.
Id) 1 Sir Wm. Bl. 295, Rex. v. Cfieshunt Inhabitants.
304 Addenda.
P. 124.] See 2 Y. & J. 243, in the matter of the Liverpool
Street Act ex parte Whitehead.
Revenue of P. 138.] By 1 Geo. IV. c. 95, general returns of the reve-
turnpike nue of turnpike trusts were required.
trusts. .. -^
P. 181.] See 5 Bingh. 286, Lord Falmouth v. George.
P. 189.] See Moo. & Malk. 214, Whitmore v. Wilks.
THE APPENDIX.
CONSISTING OF
I. FORMS.
II. PRECEDENTS OF INDICTMENTS AND
PLEADINGS.
I. FORMS.
ALPHABETICALLY ARRANGED.
N.B. The figures I. IL, ^-c. refer to the corresponding numbers in the
Schedule, or Appendix to each Act.
Accounts, of Surveyors. See Surveyors.
Adjudication under 34 G. 3. c. 64. [[Highways in two parishes.
See p. 84.]
Final Order and Adjudication, to be filed with the Clerk of the
, Peace.
Whereas, &c.
1. State the original application.
2. The summons.
3. The appearance ; and that the parties were heard, or, their non-
appearance.
Now we, the justices aforesaid, have fully heard and understood the
premises, do declare, adjudge, and order, that the said highway shall be
divided in the following manner: (that is to say) that, at the distance
of measuring from the place called C., there shall be erected
certain posts or stones, E. and F., on each side of the said highway;
and the whole of the said highway, from the place called C. to such
posts or stones, shall be from time to time, and at all times hereafter,
repaired by the parish of ^.; and the whole of the said highway, from
such posts or stones to the place called D., shall from time to time,
and at all times hereafter, be repaired by the parish of B.
In witness whereof we have hereunto set our hands and
seals, this day of
J. P. (L. S.)
K. P. (L. S.)
306 Appendi.i'.
Affidavit. Of Consent to Turnpike bill, under general turnpike
act, 3 G. 4. c. 126. s. 152. See p. 128.
A. B. of niaketh oath, and saith, that he did apply to
C. D. whom he believes to be the owner of [se< out the Property] being
part of the lands through which the intended turnpike road from E.
to F. is to be carried, or the alteration to be made [as the case may be]
and that he received from such owners the answers set forth in the
paper hereunto annexed.
(Signed) A. B.
Sworn [or, solemnly affirmed] before me [as in the other
forms hereinbejore set forth,] As witness my hand and
seal.
Affirmation. See Oath.
Agreement. See Repair, Subscription, Weighing Engine.
Appeal. General highway act. No. XL. see p. 185.
Notice of Appeal to the Quarter Sessions.
A. B. take notice, that I intend to appeal to the next general quarter
sessions of the peace to be holden for the [county, Sfc] of against
an order, [conviction, or other jjroceeding, as the case may be, 'particu-
larly specifying the purport of such order, Sfc, and assigning the grievance ^
and cause of complaint.]
Dated the day of
G.D.
Appeal. General turnpike act, 3 G. 4. c. 126. No. XXIII.
see p. 186.
Notice of Appeal to the Quarter Sessions.
A. B. Take notice, that I intend to appeal to the next general
quarter sessions of the peace to be holden for the [county, Sfc] of
against an order [conviction, or other proceeding, as the
case may be, particularly specifying the jnirport of such order, Spc, and
assiginng the grievance and cause of complaint.]
Dated the day of
CD.
Apportiotnnent. See Statute Duty.
Assessment. General highway act. No. XIV. See p. 103.
Notice of Application to be made for an Assessment.
Middlesex. Notice is hereby given, that application will be made to
the justices of the peace acting for the {Hundred) of in the
said county, at their special sessions, to be held at in the
said {Hundred) on the day of one thousand eight
hundred for an equal assessment to be made, not exceeding
in the pound, upon all and every the occupiers of lands,
tenements, woods, tithes, and hereditaments, within the {Parish, Sec.)
Forms. 307
of for the use and benefit of tlie highways, within the said
(Parish, S^e.)
Dated this day of
A. B. Surveyor.
See Warrant.
Assessment, sixpenny. General highway act. No. IV. See
Ch. VI.
Order to the [constable, &c.) to return to the Justices the amount
of a Sixpenny Assessment.
Middlesc3r. To the (Constable, &c.) of
You are hereby required to return to us, and the other justices, to
be assembled at the special sessions to be held at
for the {hundred, &c.) of in the said county, on
the day of next, the amount of the
last assessment of sixpence in the pound, for the use of the highways
within your liberty, if any such has been raised ; if not, what you ap-
prehend, from the best information you can get, an equal assessment
of sixpence in the pound upon all and every the occupiers of lands,
tenements, woods, tithes, and hereditaments, within the said liberty,
according to their yearly value, will amount to.
Given under our hands this day of 18
General highway act. No. V- See Ch. VI.
Return to the Justices of the amount of a Sixpenny Assess-
ment.
To the justices, assembled at their special sessions at tie
day of 18
In obedience to your order, I do return and certify, that the last
assessment of sixpence in the pound, for the use of the highways
within the liberty of amounted to the sum of
[If no assessment of sixpence in the pound hath been made, then as
under.]
In obedience to your order, I do return and certify, that no assess-
ment hath been made of sixpence in the pound, for the use of the
highways, within the liberty of ; but I appre-
hend, from the best information which I have been able to get, that
an equal assessment of sixpence in the pound, upon all the occupiers
of lands, tenements, woods, tithes, and hereditaments, within the said
liberty, will amount to the sum of
A. B. (constable, &c.)
X2
308 Appendix.
General highway act. No. XV. See Ch. VI. and VII.
Order at a Special Sessions for an Assessment of Sixpence in
the Pound.
Middlesex. At a special sessions fo}' the highways, held at
in the hundred :f in the said county, the
day of 18 by justices of peace for
the said county acting within the said hundred.
Upon application made to us by the surveyor of the highways for
the (parish, etc.) of and upon evidence given upon oath
before us, (,that the duty directed to be performed, and the money au-
thori,-^ed to be collected and I'ecceived, by an Act, passed in the thir-
teenth year of the reign of his majesty King George the Third, " for
the amendment and preservation of the highways," have been per-
formed, apphed, and expended, according to the directions of the said
act :) Or, (We are fully satisfied, that the common highways, bridges,
causeways, streets, and pavements, belonging to the (parish, etc.) of
are so far out of order, that they cannot be suf-
ficiently amended and repaired, paved, cleansed, and supported, by the
means prescribed by the said act:) And it appearing to us, that notice
has been duly given of such intended application, according to the di-
rection of the said act, we do hereby order, direct, and appoint, that
an equal assessment, not exceeding the sum of
in the pound, upon all and every the occupiers of lands, tenements,
woods, tithes, and hereditaments, within the said (parish, etc.) of
shall be forthwith made by the said surveyor, and
shall be allowed by one justice of the peace for the said hundred, and
shall be collected by the said surveyor, and that the money so to be
assessed and collected shall be applied for and towards the amending,
repairing, paving, cleansing, and supporting such highways, causeways,
streets, pavements, and bridges, (and for buying materials, making satis-
faction for damages, erecting guide-posts, and paying the surveyor's sa-
lary,) according to the direction and true intent and meaning of the
said act.
A.B.
CD.
Assistant Surveyors. See Surveyors.
Bonds from Surveyors. See Surveyors.
Bridges. See Repair, Certificate.
Certificate. See Statute Duty. General highway act. No.
XVII. Seep. 117.
Certificate from the said Justices to the Court of Quarter Ses-
sions.
Thin i« to be Tn the justices of the peace, at their general quarter sessions, to be held
wrote upon
If no assess-
ment has been
made for buy-
ing materials,
&c. this may
amount to
nine-pence in
the pound ;
but if a six-
pence assess-
ment had
been made be-
fore, it must
be only three-
pence.
These latter
words may be
added here, if
there has been
no former as-
sessment for
those pur-
poses.
Forms.
w&
at in the said county, the 'he above or-
I c 1 o ^^^' when no
aay Oj ■ I8 . _ agreement
We, the within named A. B. and C, 7). do hereby certify to the said "^^ ^e made,
court of quarter sessions, that we made and signed the within order,
and that with our approbation, and by our direction, the said surveyor
hath treated with the said and
for the said lands required for the purposes aforesaid, but was not
able to make any agreement for that purpose with them, or either of
them ; and that he tendered to tlie said the
sum of and to the said the sum of
as a recompense for the said ground, and for the making the said
ditches and fences, which they, and each of them, refused to re-
ceive.
A.B.
CD.
General highway act. No. XIX. See p. 60.
Certificate to be wrote under the Order above mentioned.
We, the above-named justices, do certify, that the old highway,
hereinbefore mentioned and described, was sold by the said surveyor
to with our approbation, for the sum of
which sum we do order the said
to pay to the said surveyor, to be applied in purchasing the land, and
making the said new highway ; and if any surplus remains, we do
order that the same shall be applied for the use of the highways within
the said (parish, etc.) of
General highway act. No. XX. See p. 60.
Receipt for the Purchase-money to be indorsed upon, or wrote
under, the Certificate above mentioned.
Received the day of from the said
the sum of being the full con-
sideration-money for the pm'chase of the said old highway herein-
before described, pursuant to the said orders and certificate.
By justices under 52 G. 3. c. 110, that a bridge was in need of
repair, &c. Burn's Justice, Vol. I. p. 391. See p. 212.
B. Certificate to be returned to the Sessions, pursuant to 52
Geo. 3. c. 110. §2.
County of to wit. To the justices of the peace at the
general quarter sessions, to be holden at , in the said
county, the day of 18. We
and , two of h's majesty's justices of the peace in and
for the said county, duly appointed in pursuance of the statute in that
310 Appendix.
case made and provided, to superintend the county bridges, ramparts,
banks, cops, and other works appertaining to the same, and the roads
over the same, and so much of the roads at the ends thereof as by
law is to be repaired at the expense of the said county, within the
division or hundred of in the said county, do hereby
certify to the said court of quarter sessions, that on the
day of last, we did inspect the county bridge
situate in the parish of in the said county, and within the
division aforesaid, and it having appeared to us, on our own inspection
thereof, that and that it vyas necessary for the purpose
of preventing the further decay and injury of the same, to order the
immediate repairs and amendments to be done to the same, as follows,
viz. , therefore we the said justices, did, on the
said day of , make our order, in writing, signed
with our respective hands, and did thereby order and direct
of the parish of in the said county of im-
mediately to make the said repairs and amendments; provided that
the sum to be expended in such repairs should not exceed the sum of
pounds. And we, the said justices, do hereby further cer-
tify, that the said repairs, so directed to be made as aforesaid, have
been made accordingly, by the said and that the rea-
sonable price and charges payable to the said for the
same, amounts to the sum of as per account hereto
annexed, and verified on the oath of . Given under our
hands, this day of , in the year of our Lord
18 .
That a road is in repair. Burn's Justice, Vol. II. p. 772.
M. m. a. Certificate of two justices, that an indicted road is in
good repair.
Surrey to wit. We, two of his majesty's justices of the peace of
the county of Surrey, acting in and for the said county, having this
day viewed and examined the state and condition of the road said to
have been indicted at the last summer assizes, {or at the last general
quarter sessions of the peace) holden in and for the said county, lead-
ing from a place called Biddle's Green in the parish of Windlesham, in
the said county, to a place called Westley Green, adjoining to the pa-
rish of Cobham, in the county aforesaid, do certify that the said road
is well and sufficiently repaired, and is in such a state that the king's
subjects with waggons, carts, coaches, and other carriages, may pass
and repass safely and without inconvenience, and likely so to continue.
Given under our hands and seals this day of
18 .
J.M. (L.S.)
J.L. (L.S.)
Witness R. K.
Commilmcnl. See War rani.
Compositions for statute duty. See Statute Duty.
Forms. 3 1 1
Conveyances. Of lands sold by trustees of turnpike roads. Ge-
neral turnpike act anu-ndment act, 4 G. 4. c. 95. s. 55. See
p. 127.
We, of the trustees or commissioners acting in ^\
execution of an act passed {here insert the title of the act ajipointing
them] in consideration of the sum of to us paid
by [name of the purchaser] do hereby grant and release to the said
[name of the purchaser], all [describing the premises to be conveyed], and
all our right, title, and interest to and in the same, and every part
thereof, to hold to the saiil [name of the purchaser], his heirs, executors,
administrators and assigns for ever, by virtue and according to the
true intent and meaning of an act passed in the fourth year of the
reign of king George the Fourth, intituled An Act [here set forth the
title of this act]. In witness whereof we have hereunto set our hands
and seals, this day of
Conviction. Burn's Justice, Vol. II. p. 767- See p. 150.
I. i. Conviction on 13 G. 3. c. 78. § 48., of a surveyor of
highways, for not delivering over his Books of Account to the
churchv/ardens and overseers.
From Paley [64.]
County of Stafford. Be it remembered, that on the 27th day of
December, in the year of our Lord 1819, at in the
county of Stafford, J. S. came before me, W. H. one of his majesty's
justices of the peace of the said county, and informed me that W. B.
of the hamlet or division of -B. in the township off. in the said county,
labourer, was surveyor of highways within the said hamlet, for the
year ending at Michaelmas last past, and that afterwards, to wit, on the
25th day of November now last past, at O. in the county aforesaid, a
certain book of the said W. B. as such surveyor, and certain assess-
ments for repairs of the said highways, were settled and allowed by
J. H. clerk, and J. W. esquire, two of his majesty's justices of the
peace in and for the said county, pursuant to the statute in such case
made and provided ; and that afterwards, to wit, from thenceforth to
the time of exhibiting the said information and complaint, there was a
churchwarden and overseers of the poor duly appointed in and for
the township of C. aforesaid, including the said hamlet or division,
and that the said W. B. during all the time last aforesaid, neglected to
transmit and deliver to such churchwarden and overseers, or any
or either of them, the said book and assessments so settled and allowed
as aforesaid, contrary to the form of the statute in such case made and
provided : Whereupon the said W. B. after being duly summoned to
answer the said charge, appeared before me on the clav of
, at _ _ in the said county, and having heard
the charge contained in the said information, declared that he was not
guilty of the said offence; but the same being fully proved upon the
oaths of J. S. and R. B. two credible witnesses, it manifestly appears
to me the said justice, that he the said W. B. is guilty of the offence
brm of con-
cyances.
312 Appendix.
charged upon him by the said information. It is therefore considered
and adjudged by me the said justice, that the said W. B. be convicted,
and I do hereby convict him of the offence aforesaid, and I do hereby
declare and adjudge, that he the said W. B. has forfeited the sum
of 5l. of lawful money of Great Britain, for the offence aforesaid, to
be distributed as the law directs, according to the form of the statute
in that case made and provided. Given under my hand and seal the
day and year last aforesaid.
If the party does not appear upo7i the sumvions, then after the words
" being duly summoned to answer the said charge," imert (" did not
appear before me pursuant to the said summons) ", or if he ajypeared
and refused to make defence, ("did neglect and refuse to make any de-
fence against the said charge, but the same being fully proved, &c. as
before.)
If the parti/ confesses, after the words, " contained in the said infor-
mation," i7isert (" acknowledged and voluntarily confessed the same to
be true, and it manifestly appears to me the said justice, as above.")
Convictio7i. General highway act. No. XXXV. See p. 187.
Form of a Conviction,
Middlesex.! Be it remembered, that on the day of
5 in the year of our Lord, 18 , at in
the county aforesaid, A. B. came before me C. D. esquire, ojie of his
Majesty's justices of the peace for the said county, and informed me,
that E. F. of on the day of
now last past, at in the said county, did [here set
, forth the fact in the manner described by the statute], whereupon the
said E, F. after being duly summoned to answer the said charge, ap-
peared before me on the day of
at in the said county, and having heard the charge con-
tained in the said information, declared, that he was not guilty of the
said offence ; but the same being fully proved upon the oath of G. H.
a credible witness, it manifestly appears to me the said justice, that he
the said E. F. is guilty of the offence charged upon him, in the said
information : it is therefore considered and adjudged by me, the said
justice, that the said E. F. be convicted, and I do hereby convict him
of the offence aforesaid ; and I do hereby declare and adjudge that
he the said E. F. hath forfeited the siun of of lawful
money of Great Britain, for the offence aforesaid, to be distributed as
the law directs, according to the form of the statute in that case made
and provided.
Given, &c.
After the words, being duly summoned to answer the said charge, in-
sert, (did not appear before me, pursuant to the said summons) ; or
(did neglect and refuse to make any defence against the said charge,
but the same being fully proved, Sfc), as before.
After the words, " contained in the said information," itisert (acknow-
ledged and voluntarily confessed the same to be true, and it manifestly
appears to me the said justice, Sfc.) as above.
Forms. 313
Conviction. General turnpike act, 3 G. 4. c. 126. No. XIX.
See p. 187.
Form of Conviction.
County of to wit. -Be it remembered, that on the
day of in the year of the reign of
and in the year of our Lord A. B. is convicted before
me one of his majesty's justices of the peace, for
tlie said county, for [ficre specify the offe7ice, and when and where com-
mitted,] contrary to the form of the statute made in the
year of the reign of intituled [here set forth the title of
the act,] and I do hereby declare and adjudge that tlie said A. B. liath
forfeited, for the said offence, the sum of [or, shall be
conmiitted to for the space of as the case
may de'.]
Given under my hand and seal the day and year first above written.
C. D.
Distress. See Warrant.
Diverting and turning highivaijs. See Highwai/s.
Drains. General highway act. No. XIII. See p. 83.
Order of a Justice of Peace to make new Drains.
Middlesex. To C. D. of surveyor of the highways for the
(parish, efc.) o/"
Whereas complaint hath been made to me A. B. esquire, one of
his majesty's justices of the peace for the said county, that the ditch,
gutter, or watercourse, for conveying the water from the highway at
in the {parish, etc.) of in the said county,
is not sufficient for that purpose, and that the cleansing and opening
the same will not effectually carry off the said water, but that the said
highway may be effectually drained, and the water carried off, by
making a new ditch or drain through the lands or grounds of
lying near the same, for the length of yards, and the
breadth of feet ; and the said having been
duly summoned to appear before me, to shew cause, if he had any,
why the said ditch or drain should not be made, and the said
not appearing, or (not shewing sufficient cause against the same), and
it appearing to me that such ditch or drain is necessary, I do hereby
order and require you to enter into and upon the said lands of the
said and there make, or cause to be made, a new ditch
or drain, of the length and breadth aforesaid, and of a convenient
depth, making or tendering sufficient satisfaction to the said
for the damages to be done thereby, within one calendar month after
the same shall be so made ; such damages to be settled and ascer-
tained in manner directed by the act, passed in the thirteenth year of
the reign of his majesty king George the Third, ' for the amendment
and preservation of the highways.'
Given under my hand, this day of 18 .
Forfeilure. See Order, Warrant.
314
Appendix.
"fe
2 •«
■ — ' QJ
^ IS
'73
Ph
«rt
^ b?^
-o o
.^
^ «
S
5j O ^
o
■-3 «
"5 a; m "o
^*- o c *»
O J- C5 5j
lb
U 01 g
cs "3 '5^ -2
"rt S
X!
pa
o
o
S-c
O
ca
ca
■w
S
o >,
I -3 t«
O O c
13 ■ . . ways than one
fit for the reception ot travellers, do hereby order the said old high- to be stopped
way, being of the length of yards, and of the breadth of "houw'bease-
feet, upon a medium, as appears by the said plan, to be stopped up, parate order
and the land and soil thereof to be sold by the said surveyor to '^'■^•'"^'^•
whose land adjoins thereto, if he shall be willing to pur-
chase the same, for the full value thereof, if not, to some other per-
son or persons, for the full value thereof: (reserving nevertheless to This to be in-
a free passage for persons, horses, cattle, and carriages, ''^''''^ vhexe
310-. Appendix.
Mid to be va- through the land and soil of the said old highway to and from the
cifmsum:esof (^«"<^> 4"C.) belonging to him, called according to his
the case may ancient usage thereof.)
require.
Hightvays. General highway act. No. XXI. See p. 118.
Order of two Justices for diverting and turning a (public High-
way, Bridleway , or Footway, as the case shall be) through
the Lands of any Person who consents thereto.
Middlesex. We, and , esquires, two of his
Majesty's justices of the peace for the said county, at a special sessions
held at in the hundred of in the said county,
on the day of one thousand eight hundred
, having, upon view, found, that a certain part of a (high-
way, ^c.J within the (parish, Src.J of in the said hundred,
lying between and for the length of
yards, or thereabouts, and particularly described in the plan hereunto
annexed, may be diverted and turned so as to make the same nearer
(or more commodious J to the public ; and having viewed a course, pro-
posed for the new highway, in lieu thereof, through the lands and
grounds of of the length of yards, or thereabouts,
and of the breadth of feet, or thereabout, particularly de-
scribed in the plan hereunto annexed, and having received evidence
of the consent of the said to the said new highway being
made through his lands hereinbefore described, by writing under his
hand and seal, we do hereby order that the said highway be diverted
and turned through the lands aforesaid ; and M'e do order an equal as-
sessment, &c. (in the same form as before mentioned.)
General highway act. XXII. See p. 119.
Consent from the Owners of the Land through which a new
Highway is proposed to be made.
I A. B. of in the county of being owner of the
lands described in the plan hereunto annexed, through which part of
a certain highway, lying between and is intended
to be diverted and turned, (m consideration of the sum of to
be paid to me for the said land, and the soil thereof) or, (in consi-
deration of said old highway being sold, exchanged, and to be vested
in me, and also of the sum of to be paid to me,) (as the
case may be,) do hereby consent to the making and continuing such
new highway through my said lands.
Given under my hand and seal, this day of 1 8
Highways. Notice under 55 G. 3. c. 68. See p. 62.
Form of Notice.
Notice is hereby given, that on the day of
last, an order was signed by J. W, and T. H. two of liis Majesty's jus-
Fur»ii-. 317
tices of the peace in and lor the county ot" for [if the order
be for turning, diverting and stopping up, &c. here so stale it, and de-
scribe the road ordered to be turned, diverted and stopped up; — if the
order be for stopping up a useless road, here so state it, and describe
the road ordered to be stopped up ;] and that the said order will be
lodged with the clerk of the peace for the said county, at the general
quarter sessions of the peace to be holden at in and for the
said county, on the day of next, and also that
the said order will at the said quarter sessions be confirmed and in-
rolled, unless, upon an appeal against the same to be then made, it be
otherwise determined.
Horses. Burn's Justice, Vol. II. p. 778. See p. 31.
Z. z. Allowance of an increased number of Horses drawing up
a steep Hill.
At a meeting of the trustees of a turnpike road, under an act passed
in the year of the reign of for [here state the prin-
cipal part of the title of the act] held at the day of
18 .
It appearing to us, upon the oath of being a person ex-
perienced in travelling, that the rise of a part of a certain hill, upon
the said turnpike road, lying in the parish of called or
known by the name of , between the post marked " Put on ",
and the post marked " Take off", being yards in length, is
about four inches in a yard ; we do hereby allow to be drawn up the
said hill, between the posts above-mentioned, waggons having soles or
bottoms of the fellies of the wheels of the breadth of nine inches with
horses, and carts having the like wheels with
horses, and waggons having wheels of the breadth of six inches with
horses, and carts having the like wheels with
horses, and waggons having wheels of less breadth than six inches
with horses, carts having the like wheels with
horses.
If the whole rise be upon an average more than four inches in a yard,
then say, that the rise of a certain hill is upon
an average above four inches
A. a. a. Certificate thereof to the Sessions.
I A. C. clerk to the trustees mentioned in the above order, do hereby
certify to the justices of the peace for the of at
the general quarter sessions of the peace, that the above is a true copy
of the order made by the said trustees, for the purposes herein men-
tioned. Dated this day of 18 .
Information. General highway act. No. XXXIV. See
p. 183.
Information.
Middkiej. Be it remembered, that on the day
#
*I8 Append iv.
of 18 A. B. of in the said county, in-
formeth and maketh oath before me one of his Majesty's
justices of the peace for the said county, that of
in the said county, [here describe the offence, and if it is for default in
performing statute-duty, state the duty required, and the notice given for
that purpose, and the neglect according to the fact, and as near the words
of the act as may be,] contrary to the statute made in the thirteenth
year of the reign of his Majesty king George the Third, " for the
amendment and preservation of the highways ", which hath imposed a
forfeiture of for the said offence.
A.B.
Taken and sworn, the \
day of before me, /
Information. Under 34 G. 3. c. 62. Highways in two parishes.
See p. 84.
See Adjudication.
Information.
County of . At a petty session, holden before J. P. and
K. P. two of his Majesty's justices of the peace for the said county,
this day of J. S. one of the surveyors of the
highways of the parish of A. came before the justices aforesaid, and
gave them to be informed, that there is in the said county a certain
common highway, leading from M. to N".; and that there is a certain
part of the said highway, that is to say, so much thereof as lies be-
tween a certain place called C. and a certain other place called Z).,
being in length [as the case may he] one side of which last-
mentioned part of the said highway adjoining to the parish of A. lies
within the said parish of A., and is to be, and of right ought to be, re-
paired by the said parish of A. ; and that the other side of the same
part of the said highway adjoining to the parish of B. lies within the
parish of B., and is to be, and of right ought to be, repaired by the
said parish of B. ; and stating that the repair of such part of the said
highway is very inconvenient to the parishes aforesaid, and the want
thereof detrimental to the public: and therefore praying, that such
part of the said highway may be allotted and apportioned for the repair
thereof, by the justices aforesaid, to the said several parishes of J. and
B., in the manner directed by an act, passed in the thirty-fourth year
of the reign of king George the Third, intituled, an act, Sfc.
(Signed) J. S.
The above application was made One of the surveyors of the
to us the day and year first highways for the parish of A.
above written.
./. P.
K. P.
Funtii. 319
Iiiforvutluni. GcJicral turnjilke act, 3 G. 4. c. 12(1.
No. XVI 11. See p. 183.
Information.
County of to wit. Be it remembered, that on the
day of A. B. of in the said county,
informeth me one of his Majesty's justices of the peace for
the said county, that of in the said county [here
describe the offence, with the time and place, and follow the words of the
act, as near as may be\ contrary to the statute made in the third year
of the reign of king George the Fourth, " for regulating turnpike
roads ", which hath imposed a forfeiture of for the said
offence. ,
Taken the day of before me, A. B.
Lists of persons liable to do statute labour on turnpike roads.
General turnpike act, 3 G. 4. c. 126. No. IX. See p. 105.
JMagistrates' Summons.
To the surveyors of the highways of the parish of in the
county of
Upon application made by surveyor of the turnpike roads
from appointed by the trustees for putting into execution
an act of parliament passed in the year of the reign of his Ma-
jesty king George the intituled " an Act "
by order of the trustees for the said road to us, two of his Majesty's
justices of the peace acting in and for the said county ; we do hereby
summon you, the surveyors of the highways of the parish or place of
in the said county, to deliver a list to the said
as such surveyor as aforesaid, at his house, situate in the said county,
within days after the service of this summons, of the names of
the several persons, inhabitants of the said parish or place, and who
are by law subject and liable to do statute work for the present year
upon the road situate in the said parish or place, or to the payment of
any money in lieu of or as a composition for such statute work, distin-
guishing the nature of the work to be done, whether with teams or
draughts or otherwise, and also the amount of the respective sums to
be paid ; and we the said justices do hereby require you to make such
lists of names, in such manner and under such regulations and restric-
tions as is or are directed by any law or statute now in force and ef-
fect for the repair of the public highways.
And in case you shall refuse or wilfully neglect to give in such list
as aforesaid, or shall knowingly or wilfully give in a false or imperfect
list, you so offending will for every such offence forfeit and be liable
to pay a sum not exceeding ten pounds.
Given under our hands and seals this day of
in the year of our Lord, 182 .
320 Appendix.
General turnpike act amendment act 4 G. 4. c. 95.
See p. 105.
No. II.
A List, containing the Names of all Persons in the Parish or
Place of in the who are liable to do Statute
Work, and to the Payment of Composition in lieu thereof, for
the Year commencing from
(Signed)
Surveyors of the said Parish or Place.
1.
;2.
3.
4.
5.
6.
7.
Names of
Persons li-
able.
No. of
Horses
kept.
Full
Annual
Value.
Rate of
Compo-
sition.
Total Amount
liable in
Money.
No. of
Days' Duty
Work.
General
Observations.
■
£ s. d.
General turnpike act, 3 G. 4.
See p. 105.
c. 126. No. X.
Notice to be given to Surveyors of Highways.
To the surveyors of the highways of the parish or place of in
the county of
I do hereby give you notice, that the list delivered by you to me as
surveyor of the turnpike road from to in the
said county of of the names of the several persons who
within your said parish or place are by law liable to do statute work
for the present year, or to the payment of money in lieu of or as a
composition for such statute work, will be laid before two of his Ma-
jesty's justices of the peace for the said county, in pursuance of the di-
rections of the act, passed in the year of his Majesty kin^ George
the , intituled " an act "
on the day of at in the said county,
in order that such two justices may adjudge and determine what part
or proportion of the statute work for the said year shall be done upon
the said road, and also what proportion of the composition money shall
be paid to the trustees of the said road, or to their treasurer. And I
do hereby give you further notice, that I shall apply to the justices
for [one half, one third, as the case may be'] of the statute duty from
your parish for this year, which according to the list delivered by you
will be (say) days in the whole in composition
Forms, 321
money. If you object to this division, you will iu course appear, but
if not, the saiue will be confirmed by the justices, if they think
proper.
Dated this day of
Surveyor of the taid turnpike road.
Materials for the repair of highwaj's. Licence from justices to
get them out of another parish. General highway act. No.
XXIII. See p. 109.
Licences from Justices of Peace, at a Special Sessions to get
Blaterials for the Repair of the Highways in another Parish,
besides that wherein such JMaterials are to be employed.
Middlesex. At a Special Sessions, held at for the
(hundred) of in the said county, by justices of the peace
for the said county acting within the said (hundred), on the
day of 18 .
It appearing to us, upon evidence, this day received, that sufficient
materials cannot conveniently be had within the waste lands, common
grounds, rivers, or brooks, nor in the inclosed lands or grounds lying
within the {parish, etc.) of A. in the said {hundred), for the repair of
the highway^.within the said {parish, etc.) nor in the waste lands, com-
mon grounds, rivers, or brooks, within the {parish) of B. adjoining to
the said {parish, etc.) of A. we do hereby give our licence to the sur-
veyor for the said {jmrish) of A. to search for, dig, get, and carry sand,
gravel, chalk, stone, and other materials, within the inclosed lands or
grounds of C, D. within the said {parish, etc.) of B. to be employed
in the repair of the highways within the said {parish) of A. it appear-
ing from evidence laid before us, that there are proper materials with-
in the said lands for the purposes aforesaid, lying convenient to the
said highways; and that after such materiais shall be so taken, there
will be sufficient left for the use of the highways within the said {pa-
rish) of B. upon the said surveyors making satisfaction and recom-
pense for the same, in the manner directed by the act, passed in the
thirteenth year of the reign of his majesty king George the Third,
" for the amendment and preservation of the highways," subject to
such restrictions as are therein contained.
Given under our hands and seals, the day
and vear above written,
A.B.
CD.
Licence to surveyor from justices to get stones from inclosed
lands. General highway act. No. XXIV. See p. 107.
Licence from a Justice of Peace, for a Surveyor to gather stones
upon inclosed lands, for the Repair of the Highways.
Middlesex. To the surveyor of the highways for the (parish) of
^2^ Appetidi.v.
in the (hundred) uf in the
said county.
VVliereas by an act, passed in the thirteenth year of the reign of
his majesty king George the Third, " for the amendment and preser-
vation of the highways," the surveyors are authorized to gather stones
lying upon any lands or grounds within their liberty, for the use and
benefit of the highways, but not without the consent of the occupiers
of such lands, or a licence from a justice of peace for that purpose:
and whereas it appears to me, E. F., one of his majesty's justices of
the peace for the said count)', and acting within the said {hundred, etc.)
upon the oath of the said surveyor, that he hath applied to A. B. of
for his consent to gather stones from the lands
called or known by the names of and
in his occupation, within the said (parish, etc.) for the purposes afore-
said, and that the said stones are necessary for the repair of the said
highways, and that the said A. B. hath refused to permit the same to
be gathered ; and the said A. B. having been duly summoned to ap-
pear before me, to shew cause why such permission should not be
granted, and (having appeared before me accordingly) ; or, (having sent
his steward or agent ;) or, (C. D. on his behalf, to attend me upon that
occasion ;) or, (but not having appeared) I have heard what has been
alleged, and taken the said matter into consideration, and am of
opinion, that the said stones are necessary, and ought to be gathered
and carried away for the purposes aforesaid, therefore I do hereby
give my licence to the said surveyor to take and carry away the same
accordingly.
Given under my hand and seal, the day of 18
Surveyor's Application. Burn's Justice, Vol. II. p. 758.
See p. 107.
Q. I. Surveyor's application to a justice of peace for his licence
to take Stones for repairing the highways from lands being
private property, on affidavit that the same are necessary for
repair of the highways, and that the occupier, on request, had
refused permission. ■;*,
Middlesex to wit. Be it remembered, that on the day of
, at , in the said county, A. S. surveyor of
the highways within the parish of , in the said county, in
his proper person, cometh before me, ,7. P. esq. one of his majesty's
justices of the peace in and for the said county, and maketh complaint
on oath, that he hath applied to A. O. of , for his con-
sent to gather stones from the lands called , being the
freehold of him the said A. 0. and now in his actual occupation within
the said j)arish of , and county of Middlesex, for the pur-
pose of repairing and amending the highways within the said parish ;
and further upon his oath the said A. S. giveth me, the said justice, to
understand and be informed, that the said stones are necessary mate-
rials for the re[)air of the said highways, and that proper materials can-
not otherwise be procured, and that the said A. O. hath refused to per-
mit tlie same to be gathered ; wherefore the said A. S. prayeth the
323
consideration and order of me, the said justice, in the premises, ac-
cording to the form of the statute in such case made and provided.
A.S.
Exhibited before me on the oath of the said A. S. the
day and year first above written.
/. P.
Contracting Jhr materials. Burn's Justice, Vol. II. p. 778.
See pp. 107, 108.
B b 1). Notice of contracting for Materials.
Notice is hereby given that A. S. surveyor of the turnpike road lying
between and will on the day of
next, at the hour of in the
noon, let the getting of cart loads of gravel [or,
of stone], to be got at a pit at for the use of the said
turnpike road, and will also let the carriage of the said gravel (or
stone) from the said pit to where the same is to be used
and employed upon the said turnpike road. And all persons desirous
of enteiing into a contract with the said surveyor, either for getting or
carrying the said materials, are desired to attend at the time and place
beforementioned. Dated this day of 18 .
Mortgage. Form of, under general turnpike act, 3 Geo. IV. c.
126. s. 81. Sec p. 174.
By virtue of an act passed in the year of the reign
of intituled [here set forth the title of this act,] We, whose
hands and seals are hereunto subscribed and ict, being
of the trustees [or, Commissioners] for putting into execution an act,
passed in the year of the reign of intituled
[here set forth the title of the act under tvhich the trustees or commis-
sioners borrowing the money and granting the mortgage shall act], in
consideration of the sum of sterling advanced and paid
by A. B. of to the treasurer of the said trustees [or
Commissioners], do hereby grant and assign unto the said A. B. and
his executors, administrators and assigns, such proportion of the tolls
arising and to arise on the said turnpike road, and the toll gates and
toll houses erected or to be erected for collecting the same, as the
said sum of doth or shall bear to the whole sum now or
hereafter to become due and owing on the security thereof: to have,
hold, receive and take the said proportion of the said tolls, toll gates,
toll houses and premises, with the appurtenances, unto the said A. B.
and his executors, administrators and assigns, for and during the re-
sidue of the term for which the said tolls are granted by the said last
mentioned act, unless the said sum of with interest after
the rate of per centum per annum, shall be sooner repaid
and satisfied.
Given under our hands this dav of
y2
324
Appendix.
Mortgage. Assignment of under general turnpike act, 3 Geo.
IV. c. 126. s. 81. Seep. 175.
I A. B. [or I, C. D. assignee, executor or administrator of A. B. as
the case mai/ hnpperi], do hereby assign and transfer this mortgage se-
curity, with all my right and title to the principal money thereby se-
cured, and all interest now due and hereafter to grow due upon the
same, unto E. F. his or her executors, administrators and assigns.
Dated this day of one thousand eight hun-
dred and
Witness G. H. . (Signed) A. B. or C. D.
New Highways. Burn's Justice. Vol. II. p. 779- See Ch. VI.
D d d. Order for the repair of a new highway.
Middlesex to wit. We, two of his majest3''s justices of the peace
for the said county, acting within the (hundred) of
in the said county, having, (at the request of the parties interested in
the repair of part of the highway, [or, turnpike road, hereafter men-
tioned, who could not agree about the repair thereof* viewed a cer-
tain part of the highway (or, turnpike road) described in the plan here-
unto annexed of the length of yards, which hath been
set out and appropriated ibr a new highway [or, turnpike road) be-
tween and in lieu of an old highway (o?;
turnpike road) which hath been ordered to be stopped up; and having
also viewed the ground where the said old highway was situated, and
having summoned the surveyor of the said new highway (or, turn-
pike road) and also A. B. who was liable by tenure, &c. [If the old
road lay in a different parish, and was to be repaired by the inhabitants
then say,] and also the surveyor of the parish of where
the said old road lay, who were liable to the repair of the said old
highway {or, turnpike road) to appear before us this day ; and having
heard what has been alleged touching the repair of the said part of
the said highway {or, turnpike road), and having fully considered the
same, and all the circumstances of the case ; We think it just and
reasonable, and do hereby order and adjudge, that the said A. B. {or,
the inhabitants of the said parish, c^-c.) shall from time to time repair,
and keep in repair, the whole {or, a part) of the said highway, from
to containing yards in
length, at each end whereof we have caused a post or stone to be
placed, to ascertain the extent thereof. Given under our hands and
seals this day of 18 .
If it be agreed by the consent of parties, to pay a sum in gross in lieu
of such repairs, then after the tvord adjudge, insert, by and with the
consent of the said A. li. signified by his subscribing his name to this
order {or, by the consent of the inhabitants of the said parish of
signified in writing at a vestry or other public meeting, a
copy whereof is here underwritten) that the said A. B. {or, the inha-
bitants ) is {or, are) liable to repair part of the said nev^
highway ; and that if he (or, they) shall, on or before the
day of next, pay to the surveyors of the highways of the
Forms. 325
said parish of \if it is not turnpike rocid, hut if it be turn-
pike road, then sai/, to the treasurer of the said turnpike road] the sum
of he the said A. B. and his heirs {or, the said inha-
bitants and their successors) shall be for ever acquitted and discliarged
from the burden and obligation to repair the said new highway, or any
part thereof.
Notice. See Highrvay.
Nuisances, removal of. See Surveyors.
Order for occupiers to make hedges, &c. Burn's Justice, Vol. II.
p. 761. See p. 3n.
U. Order for occupiers of land to make hedges, and cut down
trees.
At a special sessions held at in the hundred of
in the county of on the day of
in the year of our Lord 18 ,l)y justices of the
peace for the said county, acting within the said hundred.
Staffordshire to wit. Whereas complaint hath been made unto us
by A. S. surveyor of the highways of the parish of that
A. O. of the said parish hath had due notice from him to cut, prune,
and plash his hedges adjoining, and to cut down or to prune and lop
the trees growing in and near such hedges, in such manner that the
highways may not be prejudiced by the shade thereof, and that the
sun and wind might not be excluded therefrom to the damage thereof
(pursuant to the statute made in the thirteenth year of the reiirn of
his majesty king George the Third), but that he hath not complied
with such notice, or with the requisites of the said act.
And whereas the said A. O. having been duly summoned to answer
the said complaint, hath made default in his appearance ; Now we,
upon duly considering the circumstances of the case, do order, that
such hedges be cut, plashed, and pruned, so as not to exceed the height
of from thcsuri'ace of the field, and that all such trees
as grow in and near such hedges, in the grounds occupied by the said
A. O. near the said highway, be cut down, or be pruned and lopt, so
that the sun and wind may I'.ot be excluded from such highway ; and
we do further order, that in case the said A. O. shall not obey this
order within ten days from tlic date hereof, that then A. S. the said
surveyor do cut, prune, and plash such hedges, and cut down or prune
and lop such trees, in maimer directed by this order, and proceed
against the said A. O. immediately afterwards for recovery of the pe-
nalties and charges he will thereby incur.
Given under our hands and seals, the day and year first above writ-
ten.
320^ Aj>i)ciulLv.
Oitlh. Sec Surveyors.
By trustees of turnpike roads, under 4 Geo. IV. c. Oo. s. 32.
See p. 131.
I A. B. do swear, [or, being one of the people called Quakers, do
solemnly affirm,] that I will truly and impartially, according to the
best of my judgment, execute and perform the several powers, autho-
rities, and trusts reposed in me as a trustee [or Commissioner] by vir-
tue of an act passed in the third year of the reign of his majesty king
George the Fourth, intituled an act to amend the general laws noiv in
being for regulating tiirnjnke roads in that part of Great Britain called
England ; and also an act passed in the fourth year of the reign of his
said majesty, intituled [here set forth the title of this act;] and also an
act passed in the year of the reign of his majesty
intituled [here set forth the title of the act under
tvhich such trustee or commissioner shall claim to act.'\ So help me
GOD. [Or, being a Quaker, omit the xuords. So help me GOD.]
Obstructions, removal of. See Surveyors.
Order. Burn's Justice, Vol. II. p. 775. See p. 182.
S s. Order for payment of a Forfeiture.
Middlesex to wit. Whereas A. O. of in the said
is duly convicted before me J. P. esquire, one of
his majesty's justices of the peace for the said county, for that he the
said A. O. [Here describe the offence as set forth in the information]
whereby he the said A. O. hath forfeited the sura of :
I do therefore hereby order the said A. O. to pay to A. S. surveyor of
the said sum of to be by him dis-
posed of as the law directs.
Given under my hand and seal the day of
18 .
Poor Labourer. Burn's Justice, Vol. II. p. 756. Seep. 101.
K. Justices' notice to surveyor to shew cause why a j)oor la-
bourer should not be discharged from highway rates or com-
position, by 34 G. 3. c. 74.
Herefordshire \ To Mr. A. B. surveyor of the highways within the
to wit. \ parish of , in the said county.
Whereas E. F. of , in your parish, labourer, hath
this day made complaint on oath to us, two of his majesty's justices of
the peace in and for the said county, in petty sessions assembled, that
he wholly gains his livelihood by daily labour, and that by reason of
his numerous family, he is in very poor and indigent circumstances, and
utterly unable to pay or contribute towards any rates, assessments, or
Forms. 32/
composition, for or in respect of any highways within the said paiisli,
and hath prayed of us, the said justices, that he may be exempted
from paying the same. We the said justices do therefore hereby give
you notice to appear l)efore us at , in the said county,
on Thursday, the day of , at our petty
sessions, to be then and there liehl, to shew cause why the said A. B.
should not by us be adjudged to be exempted from the payment of
such rates, assessments, or compositions accordingly.
Given under our hands and seals, &c.
Precepts. Burn's Justice, Vol. II. p. 782. See Ch. VI.
H h h. Justices' precept to tlie surveyor to make a return of
the state of the high\i'ays.
To the surveyor of the highways of the of
in the county of Stafford.
Staffordshire to wit. These are in his majesty's name, and in pur-
suance of the statutes to require you forthwith to take a view of all
the roads, common highways, bridges, causeways, pavements, hedges,
ditches and water-courses, appertaining to, and of all nuisances and
encroachments made upon the highways in your said jjarish of which
3'ou are surveyors, and to make a return in writing upon oath at a
special sessions appointed to be held at , on
the day of , at twelve o'clock at
noon, of the state and condition of such highways, and more espe-
cially of such faults and defects therein as want to be amended and
repaired, and of tiie neglect of labourers and teams for the amending
such highways, and of those that arc obliged to find labourers for the
use aforesaid, of which you are not to fail.
Given under our hands and seals this day of
in the year of our Lord 1 8 .
J. C.
S.P.
1 i i. Surveyors' return of the state of the highways.
Staffordshire to wit. A. B. and C. D. surveyors of the highways for
the parish of , do hereby certify, that we have in pur-
suance of a warrant to us directed, taken a view of all the roads, high-
waj's, &c. within our said parish, and that the same are in good repair,
that his majesty's subjects may pass and repass without danger, and
that there are no nuisances or encroachments thereon.
Sworn the day of 18 , before us,
J. a
S.P.
■»25- Appendix.
K k k. High constable's precept to petty constables to issue
precepts for surveyors to make returns as to the state of the
roads.
To the constable of
Staffordshire to wit. By virtue of a precept from his majesty's jus-
tices of the peace acting in and for this county, to me directed, you are
hereby required forthwith to give notice to the surveyors of the high-
ways within your precinct, that they must attend in person at a special
sessions to be held at , on the
day of at o'clock in the noon, and
make a return in writing of the state of their highways, and of their
having duly collected the compositions and called in the statute duty,
and of all persons making default therein. And you are then and there
to attend, and make a return of your due execution hereof, and of all
things presentable belonging to your office, and inquirable at the next
quarter sessions. Herein fail not at your peril.
Given under my hand this day of 1820.
Presetttment. General highway act. No. XXXII. See p. 88.
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 {TuesdoT/) the day of in
the year of the reign 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 misdemeanours 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 high-
Thlsistobe ways," (upon his own view), or (upon information, upon oath, to him
inscrtcdwhere given by C. D. Surveyor of the highways for the {parish, etc.) of
information ii the said county,) doth present that from the time
ofthesur- whereof the memory of man is not to the contrary, there was, and
yet is, a certain common and ancient king's highway leading from the
tov^'n of in the said {counlij, etc.) towards and unto
within the same {county,) used for all the king's sub-
jects, with their horses, coaches, carts, and carnages, to go, return,
and pass, at their will ; and that a certain part of the same king's
common highway, commonly called situate, lying, and
being in LJic {parish, etc.) of in the same {county), con-
taining in length 3'ards, and in breadth,
feet, on the day of in the
year of the reign of and continually afterwards
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.
Forms. 329
yet can, go, return, or puss, 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
(pariah, etc.) of aforesaid, in the {county) aforesaid,
the said common highway [no 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
hand and seal, this day of in the year
aforesaid.
Repair of Highway. See Agreement, Certificale, Materials,
New higlavaij. Statute duty, Presentment, Subscriptions.
Repair of Hiahvaij. General In'ghway act. No. XXIX.
See p. 88.
Order of the justices at their Special Sessions, for the Repair of
certain Highways which most want Repair.
Middlesex. At a special sessions, held at in the (hundred)
of in the said county, the day of
18 ,hy justices of peace for the said county acting within the said
(hundred.)
To the surveyor of the highways for the (parish, etc.) of in
the said (hundred.)
It appearing to us, that the highway, lying between
and within your liberty, is very founderous, and" in bad
repair, and being of great public use, we do hereby order that you re-
pair, or cause the same to be repaired, before the day of
next.
Given under our hands and seals, this day of 18 .
Repair of Turnpike Roach. General turnpike act, 3 Geo. IV.
c. 12(). No. VIII. See p. 93.
Agreement between the Trustees of a Turnpike Road and a
Person liable by Tenure to rejiair some part of it.
At a Meeting of the Trustees of the turnpike roads, under an act passed
in the year of the reign of King George the
" For [state the principal part of the title of the act], held at
the day of
Whereas A. B. of is liable by tenure, S:c. [as the case shall
bel to the repair of a certain highway leading between
and of the length of yards or thereabouts,
and the said highway being now made turnpike road by virtue of the
raid act, will occasion a greater expence to make and keep the same
330 Appendix.
in proper repair, than would have been necessary if no such act had
been obtained, and the said A. B. attending this meeting in person, [or,
by C. D. his attorney or agent authorized to treat in his behalf], the
said trustees and the said A. B., &c. in pursuance of a power given by
an act passed in the third year of the reign of king George the Fourth,
' for Regulating Turnpike Roads,' have, in order to jnit and keep the
said road in proper condition and repair, come to the following agree-
ment, videlicet; that the said trustees shall on or before the
day of next, pay and allow the sum of out
of the tolls arising upon the said turnpike roads towards putting the
said road into proper repair, to be laid out and expended by the sur-
veyor of the said turnpike road, and that the said A. B. shall advance
and pay into the hands of the treasurer of the said turnpike road on
or before the day of next, the sum of
to be also laid out and expended by the said surveyor
in the repair of the said road, and that from and after the
next, the said turnpike road shall be kept in repair by the said trustees
out of the said tolls as aforesaid, so long as the said turnpike act shall
continue, upon the said A, B. paying into the hands of their treasurer
the sum of upon the in every year, which
the said A. B. doth hereby for himself and his heirs agree to pay ac-
cordingly, so long as the said road shall be so repaired by the said
trustees as aforesaid,
[Or, if it shall be agreed thai A. B. shall keep the road in repair ujwn
having an annual allowance in money or statute duty from the said
trustees, let the agreement be varied and adapted to the case.]
Repair of Bridges. See Certificate.
Burn's Justice, Vol. I. p. 390. See p. 212.
A. Order of Two Justices to rejiair a County Bridge, under
Stat. 52 Geo. 3. c. 110. § 1.
County of to wit. To of the parish of
in the said county. We and
two of his majesty's justices of the peace in and for the said county,
duly appointed in pursuance of the statute in that case made and pro-
vided, to superintend the county bridges, ramparts, banks, cops, and
other works appertaining to the same, and the roads over the same,
and so much of the roads at the ends thereof as by law is to be re-
paired at the expense of the said county, within the division or hun-
dred of in the said county, having on this day in-
spected the county bridge situate in the parish of
in the said county, and within the said division or hundred, and it ap-
pearing to us, on our own inspection thereof, to be necessary for the
purpose of preventing the further decay and injury of the same, to or-
der the immediate repairs and amendments to be done to the same, as
in the schedule of particulars by you prepared and signed, and hereto
annexed; now, tiicriforc, we, the said justices, do hereby order and
direct you, immediately, to repair and amend the s) Dislnss.
Side-Gate. General turnpike act, 3 G. 4. c ]2<>. No. I\^
Sec p. 178.
Notice of a IMceting of Trustees for ordering a Side-Gate
to be erected.
Notice is hereby {jiven, that the trustees of the turnpike roads im-
der an act passed in tlie year of tlie reign of kinj; George
the " For [state the material pin-ts of the title of the «(■/,]
will meet at the house of at on
the day of next, at the hour of
in the noon, in order to consult about erecting
a toll gate on the side of the said turnpike road, at or near a place
called across a certain highway there, leading to
Dated the day of
A. B. clerk to the said trustees.
General turnpike act. 3 G. 4. c. 126. No. V. See p. 1;8.
Order of the Trustees for erecting a Side Gate.
At a Meeting of the trustees of the turnpike roads, under an act
passed in the year of the reign of king George the
"For [here state the material parts of the title of the
act\ being assembled this day of to en-
force the directions of an act passed in the Third year of the reign
of king George the Fourth, "for regulating Turnpike Roads," [as far
as the same respeets the erecting of side gates.]
In pursuance of public notice given in writing upon all the toll
gates erected on the said road, and also in the
newspapers circulated in this part of the country, for fourteen days
now last past. We do order, that a toll gate shall be erected on the
side of the said turnpike road, at or near a place called
across a certain highway there, leading to and
that the following toll be taken at the said gate, videlicet, [here insert-
the partieular tolls to be taken at the said side gate.]
Sixpetmi/ Assessment. See Assessment.
Statute Duty. See List. Poor Lahuurer.
Statute Duty. General highway act. No. XXV. See p. 9J.
Notice to perform Statute duty, (to be given four days before
the day on which the duty is to be performed.)
A. B, you are hereby required to send a teaiii, with two able men, if he does
-,^1 • V,i- /■ • 7 . \ r .. not occupy
to wiinin u\c{pansh, etc.) oi next, lands, &c. of
332
Appendix.
the yearly
value of 30^.
in such parish
&c., he is
only to send
one man.
If a waggon
or a cart with
two horses, or
one horse
only, is re-
quired, let it
be expressed.
at o'clock in the morning of each day, in order to
perform such duty upon the highways within the said
as shall be required by the surveyor, pursuant to the direction of the
act, passed in the thirteenth year of the reign of his majesty king George
the Third, " for the Amendment and Preservation of the Highways."
(When personal labour is required), You are hereby required, by your-
self, or a sufficient labourer, to attend, etc.
Dated this day of 1 8
General highway act. No. XXVII. See p. 102.
Order for Statute- duty to be performed in kind.
Middlesex. At a special sessions, held at in ike (hun-
dred) of in the said county, the day of
18 by justices of the peace for the said county, act-
ing within the said (hundredj.
It appearing to us, from the information which we have received,
that there will be difficulty in procuring the necessary {carriage), or,
(a sufficient number of labourers) (as the case shall be) for the repair of
the highways within the (parish, etc.) of within the
said (hundred) without paying high and extravagant prices for the same,
we do hereby order and direct (the team-duty within the said (parish,
etc.) except such teams where the owners thereof do not occupy lands,
tenements, woods, tithes, or hereditaments, within the said (parish, etc.)
of the annual value of thirty pounds), or, (one half of the team-duty,
etc.) or, the labourers liable to perform statute-duty within the said
parish, etc. (as the case shall be) to perform their statute-duty in kind
within the said (parish, etc.) according to the authority and directions
of the act, passed in the thirteenth year of the reign of his majesty
king George t\\e Third " For the Amendment and Preservation of the
Highways."
General highu-ay act. No. XXVIII. See p. 103
Notice to the Surveyor of the times fixed by the Inhabitants for
being excused from doing their Statute-duty.
To the surveyor of the highways for the (parish, elc.) of
in the county of
I A. B. (constable) (headhorough) (tithingman,) of the said [parish,
etc.) do hereby give you notice, that the inhabitants of the said (pa-
rish, etc.) did, at a vestry or public meeting, held on the
day of one thousand eigiit hundred
agree to take the benefit of the indulgence of tiiree months, for not
performing their statute-duty given by the legislature, in the act passed
in the thirteenth year of the reign of his majesty king George the
Third, " for tiic Aiiicndment and Pieservation of the Highways," at the
times following, videlicet, that they shall not be called upon to per-
form such duty between the day of
and the day of (which they consider
333
as the seed month), nor between the v 3-1 G. 'A. c. C>A. irigliMavs in twu parislics.
S.'e J). Hi.
Suinmoiis, to h« subjoined to a Copy of Information.
County of . To the surveyors of the highways of the pa-
rish of B. in the said county, any or f "ther of theni.
Whereas a certain information has b •^i! tIvcu to us J. P. and K. P-
two of his majesty's justices of the peace lor the said county, by J. S.
one of the surveyors of the highways of the parish of A. in the said
county, a true copy whereof is above written ; these are, in his ma-
jesty's name, to summon you, any or either of you, to appear before
us at in the said county, on the day
of at to shew cause (if any) why
an allotment and apportionment of the highway therein mentioned
should not be made, according to the provisions of the act referred to
in the said information. Hereof fail not.
Given under our hands, this day of
J. P.
K. P.
See Adjudication.
Summons. General turnpike act. 3 G. 4. c. 12(3. No. XVII.
See p. 182.
Summons for any Person or Persons to attend a Justice or Justices.
County of to wit. To A. B. of
Whereas complaint and information has been made before me,
C. D. one of his majesty's justices of the peace for the said [county,
&c.] by E. F. of That, &c. [here state the na-
ture and circumstances of the case, as far as it shall be necessary to
shew the offence, and to bring it within the authority of the justice, and
in doing that, follow the ivords of the act, as near as may be.] These
are therefore to require you personally to appear before me [or, the
justices to be assembled at their special sessions to be holden] at
in the said [county, &c.] on the
day of next at the hour of in the
noon, to answer to the said complaint and information made by the
said E. F. who is likewise directed to be then and there present, to
make good the same. Herein fail not.
Given under iny hand, this day of
338 Appendix.
Surveyors. See Cojwiction, Information, Materials, Lists,
Precepts.
Surveyors. Appointment of. General highway act. No. I.
Seep. 142.
Warrant for calling the Meeting of Householders, &c. and for
fixing that of the Justices for appointing Surveyors.
Middlesex. To the constables, headboroitghs, and tithingmen, within the
(hundred, riding, division, liberty, or precinct), as the case shall be
of in the said county.
In order to carry into execution an act made in the thirteenth year
of the reign of his majesty King George the Third, /or the Amendment
and Preservation of the Public Highways, you are hereby severally re-
quired forthwith to give public notice to the churchwardens, surveyors
of the highways, and householders, being assessed to any parochial or
public rate within your respective liberties, that they do assemble on
the day of next, at the church or chapel, or
if there shall be no church or chapel, then at the usual place of pub-
lic meetings within their respective liberties, at the hour of eleven in
the forenoon; and that the major part of them so assembled do make a
list of the names of at least ten persons living therein, who each of them
have an estate in lands, tenements, or hereditaments, lying within the
same, in their own right, or in right of their wives, of the value of ten
pounds by the year ; or a personal estate of the value of one hundred
pounds ; or are occupiers or tenants of houses, lands, tenements, or
hereditaments, of the yearly value of thirty pounds : And if there
shall not be ten persons having such qualifications, then that they do
insert in such list the names of so many of such persons as are so qua-
lified, together with the names of the most sufficient and able inha-
bitants not so qualified, as shall make up the number ten, if so many
can be found, if not, so many as shall be there resident, to serve the
office of surveyor of the highways : And you are also severally re-
quired, within three days after making the said list, to deliver a copy
thereof to one of the justices of peace of the said {hundred) {riding)
{division, &c. as the case shall be) living in or near the same {parish, ^^c);
and also to give personal notices to, or cause notices in writing to be
left at the places of abode of the several persons contained in such
list, informing them of their being so named, to the intent that they
may severally appear before the said justices at their special sessions
to be hoiden at within the said {hundred, etc.) on the
day of now next ensuing,
at the hour of in the forenoon of the same day, to
accept such office, if they shall be appointed thereto, or to shew cause,
if they have any, against their being appointed ; and you are likewise
to give notice to the present surveyors of the highways, within your
respective liberties, to appear at the same time and place, and produce
such accounts and lists before the said justices as are required by the
Fonus. 330
said act ; and you, and each of you, arc personally to appear before
the said justices, at their said special sessions, and then and there se-
verally deliver to the said justices the said original list or lists taken
within your respective liberties, and give an account of the execution
of this our precept.
Given under our hands and seals, the day of
in the year of our Lord, l &
General liighway act. No. II. See p. 143.
List of Persons to be returned to the Justices.
A List of the sci^ernl persons named for Surveyors of the highways for
///\ Headborough, or
' y Tithingman,
C {as the ease shall be.)
340
AnDcndix.
This is to be
inserted when
a surveyor is
appointed
with asalari'.
General highway act. No. VI. See p. 143.
Appointment of a Surveyor.
Middlesex. At a sjyecial sessions, held at in the h?aidred
of b^ Justices oj the peace for the snid county act-
ing within the said hundred, on the day of
18
We do hereby nomin 'te and appoint A. B. of {insert the name of the
parish, &c. where he lives) \n the said hundred, surveyor (or surveyors)
of the highways within the said (parish, etc.) for the year ensuing;
(and we do allow the said A. B. the salary of for
his trouble') : And you the said A. B. are fiiithfully and truly to execute
the said office of surveyor, according to the directions of the statute,*
passed in the thirteenth year of the reign of his majesty King George
the Third, " for the Amendment and Preservation of the Highways,"
an abstract of the material parts of which statute is hereunto annexed.
Given under our hands and seals, the day and year above men-
tioned.
Surveyors. When appointed with a salary. See Assessment.
Surveyors. Bond from^ upon their appointment.
General highway act. No. VII. See p. 145.
Bond from tlie Surveyor.
We A. B. surveyor of the highways for the [parish, toivnship, etc.)
of and C. D. of are bound
to E. F. of aforesaid, in the sum of
pounds, to be paid to the said E. F., his executors, administrators, or
assigns : for which payment we hereby bind ourselves severally, and
each of our heirs, executors, and administrators.
Dated the day of 18 .
The condition of this bond is such, that if the said A. B., his exe-
cutors, or administrators, shall duly and faithfully account for, apply,
and pay, all and every the sum and sums of money which shall come
to his hands, as surveyor of the highways for the [parish, etc.) accord-
ing to the direction and true intent and meaning of the statute, made
in the thirteenth year of the reign of his majesty King George the
Third, " For the Amendment and Preservation of the Highways,"
then tins bond to be void, or else to remain in full force.
Funnx. 341
General turnpike act, 3 G. 4. c. 12(). No. XVI. See p. 141.
Bond from the Surveyor.
We, A. B., surveyor of the turnpike roads, under an act passed in
the year of the reijin of King George the
" For [state the piiiicipal part of the title of the act], and C. D. of
, are bound to E. F., of , in the sum of
pounds, to be paid to the said J^J. F. his executors, ad-
ministrators, and assigns, for which payment we hereby bind ourselves
severally and each of our heirs, executors, and administrators.
Dated the day of
The condition of this bond is such, that if the said A. B., his exe-
cutors or administrators shall duly and faithfully account for, apply
and pay all and every the sum and sums of money which hath come
or shall come to his hands as surveyor of the turnpike road aforesaid,
according to the direction and true intent and meaning of the said
act, and of the statute made in the third year of the reign of his ma-
jesty King George the Fourth, " For regulaUng Turnpike Roads," then
this bond to be void, or else to remain in full force.
[The bond from the treasurer will be in the same form.']
Surveyor s Assistant. A])pointment of.
General highway aet. Xo. VIII. See p. 145.
Appointment of an Assistant to the Surveyor.
Middlesex. At a special sessions, held at in the hundred
of by justices of the peace for the said county, acting
within the said hundred, on the day of 18
We do hereby nominate and appoint C. D,, a substantia! inha-
bitant of the {parish, etc.) of in the said
hundred, assistant to A. B. whom we have appointed surveyor of
the highways for the said {parish, etc.)', and you the said CD.
are, to the best of your skill and judgment, to assist the said sur-
veyor, whenever requested by him, in calling in and attending the
pertormaiice of the staiute-duty, in collecting the compositions,
fines, penalties, and forfeitures, and in making and collecting the
assessments, and in making out and serving the notices authorized
by the Act, passed in the thirteenth jear of the reign of his ma-
jesty King George the Third, " For the Amendment and Preserva-
tion of the Highways," and in such other matters and things as shall be
reasonably required of you by the said surveyor, in the execution of
the office of surveyor, pursuant to the said Act; and you are justly
and truly to account with, and pay to the said surveyor, or to his
order, the money which shall come to your hands by the means
aforesaid.
Given under our hands and seals, the day and year above mentioned.
342 Ai>pcii(lix.
f
Surcei/or's Accounts. General highway act. No. IX.
See p. 149.
Oath to be administered to the Surveyor upon passing his
Accounts.
I, A. B. do swear, that the accounts now produced and deHvered by
me, as surveyor of the highways for the {parish, etc.) of
for the last year, are just and true, to the best of my knowledge.
So help me GOD.
General highway act. No. X. See p. 149.
Allowance of the Accounts.
October, 18
These accounts were examined and allowed before
Su7'veijors. Nuisances and Obstructions.
General highway act. No. XI. See pp. 38^ 39. 82.
Notice from the Surveyor to remove Nuisances and Obstruc-
tions, and to cut Hedges, &c.
To remove
miisaines and
obstructions.
To cut and
prune hedges
or to cut or
prune trees,
and to open
and scour
ditches and
water -courses.
To C. D. of
in pursuance of the directions given by the act, passed in the thir-
teenth year of the reign of his majesty King George the Third, " For
the Amendment and Preservation of the Highways," I, A, B^ sur-
veyor of the highways for the {parish, etc.) of
do hereby give }ou notice, fortliwitli to remove the {dinig, timber, stone,
etc.) placed by you in a certain pmt of the King's highway, lying be-
tween and in the {2)arish, etc.)
of 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 oj^en, cleanse, and scour the several
ditches and watercourses belonging to you) in or near the highway, ly-
ing between and in the
{parish, etc.) of in or near the higliway, lying
between and , to the in-
tent that tlie water may be drained from the said highway, and that
the sun and winil may not be exchidcd from such highway, to the pre-
jiulicc thereof.
Dated this day of 18 .
A.B.
Funiis. 343
General liiglnvay act. No. XII. See p. 38.
Allowance of Changes and Expences paid by Surveyors, which
are to be repaid by the Pos.sessor of the Lands, &c. and
Order of the Justice for that Purpose.
Midd/cscx.
Whcrens complaint hath been made unto me, A. B., Esq., one of
his majesty's justices of peace of the said county, by the oath of
surveyor of tlic highways for the parisli of in the
said county, that C. 1). of having had due no-
tice to cut and j)ruue his hedges, and cleanse and scour his ditciics and
watercourses, within or adjoining to the public highway between
and in the said parish of
hath neglected to do the same within the time
required by such notice, and that the said hath
caused the same respectively to be cut, pruned, cleansed, and scoured,
pursuant to the directions of the act, passed in the thirteenth year of
the reign of his majesty King George the Third, " For the Amendment
and Preservation of the Highways," and hath expended therein the
sum of as appears by an account now produced
to me, which I think a reasonable charge, and do therefore allow the
same, and hereby order the said C. D. to pay the said sum of
to the said within six days from the time of his
being served with this order.
Given under my hand and seal, this day of 18 .
Tenure. Sec IRepa'ir.
Toll-Gate. See JVarrcDtU
Tolls. General turnpike act, 3 G. 4. c. 12(). No. VI. See p. 155.
Notice for letting Tolls.
Notice is hereby given. That the tolls arising at the toll-gate [or toll-
gates, if more than o«f], upon the turnpike road at
called or known by the name of the g'lte, w-ill be let
by auction to thebcst bidder, at the house of at
on the day of
next, between the hours of and in the manner
directed by the act passed in the third year of the reign of his Ma-
jesty King George the Fourth, "For regulating Turnpike Roads," which
tolls produced the last year the sum of above
the expences of collecting them, and will be put up at that sum : who-
ever happens to be the best bidder, must at the same time pav one
month in advance (if required) of the rent at which such tolls niay be
let, and give security, with sufficient sureties, to the satisfaction of the
344 Appendix.
trustees of the said turnpike road, for payment of the rest of the
money monthly [or in such other proportions as shall be directed.]
A. B. clerk of the trustees of the said turnpike road.
General turnpike act, 3 G. 4. c. 126. No. VII. See j). 161.
Order of Trustees for reducing the Tolls.
At a Meeting of the Trustees of the Turnpike Roads, under an Act
passed in the year of the reign of King George the
" For, &c " {state the pi'incipal part of the title of the acf], held at
the day of
We, whose names are subscribed, being or more
of the trustees acting under the said act, being now assembled for re-
ducing the tolls authorized to be taken by and under the said act, pur-
suant to public notice given for that purpose in the newspapers
circulated in this part of the country, and also affixed upon all the turn-
pike-gates erected upon the said turnpike-road, for upwards of one ca-
lendar month now last past, and having the consent of the several
persons entitled to five-sixth parts of the money now remaining due
upon the credit of the said tolls, this day signified and proved to us, do
hereby order, that the tolls granted by the said act shall, from and after
the day of be lessened and reduced
in the following manner [here state the several reductions proposed to be
viade.]
Trust. See General Statement.
Trustee of Turnpike Roads. See Conveyances, Oath, Side-
Gate, Tolls.
Turnpike Bill. See Affidavit .
I'eslry. See Statute-Duty.
Warrant. Of Distress.
General highway act. No. XXX V^I.
Warrant to Distrain for a Forfeiture.
Middlesex. To the (Constable) (Meadborough) or (Tithingman) of
Whereas, A. 7?., of ,in the said county (yeoman),
is this day convicted before ire, C. D., Esq., one of his majesty's jus-
tices of the peace in and lu; liie f.aid county, upon the oath of G. H.,
a credible witness, for that the said A.B. hath [hdrc set forth the offence,
describitig it particularly i)i the ivords of the statute, as near as maybe],
contrary to tiic statute in that case made and provided, by reason
lar case.
Forms. 345
whereof the said A. B. hath forfeited the sum of to
be distributed as herein is mentioned, which he hath refused to pay :
These are therefore, in his majesty's name, to command you to levy
the said sum of by distress of the goods and chattels
of hiu) the said //, B., and if within the space of four days next after
such distress by you taken, the said sum, together with the reasonable
charges of taking and keeping tiie same, shall not be paid, that tlien
you do sell the said goods and chattels so by you distrained, and out of
the nu)ucy arising ])y such sale, that you do pay oue-liaH' of the said
sum of to E. F., of , who informed
me of the said offence, and the other half of the said sum of To be varied
to J. K,, the surveyor of the highways, for the {pariah, toivnshij), or the°art"fn °
place) where the said offc'uce {neglect) or {ckfauU) happened, to be pach particu-
employed towards the repair of the said highways, returning the over-
plus, upon demand, to him the said yi.i?. (the reasonable charges of
taking, keeping, and selling the said distress being first deducted); and
if sufficient distress cannot be found of the goods and chattels of the
said A. B. whereon to levy the said sum of , that
then you certify the same to me together with this warrant.
Given under my hand and seal, the day of 18 .
CD.
General highway act. No. XXXVII.
Return of the Constable to be made upon the Warrant of Dis-
tress, when there are no Effects.
I, A. B., constable of the {parish, etc.) of in the
{county) of do hereby certify and make oath, tliat, by
virtue of this warrant, I have made diligent search for the goods of
the within named , and that I can find no sufficient
goods whereon to levy the within sum of . As witness my
hand, the day of 18 .
A.B.
Sworn before me the day and year, etc. C. D.
General highway act. No. XXXVII I.
Warrant of Distress for Non-])ayment of IMoney charged by on
Assessment.
Middlesex. To the (Constable) (Headborough) or (Tithingman) of
in the said (county).
Whereas, by an assessment made upon the occupiers of lands, tene-
ments, woods, tithes, and hereditaments, within the {parish, etc.) of
in the said {county), for the purposes of, &c. \as
stated in the justices' order], pursuant to an order of justices for that
purpose, according to the directions of the act, passed in tiie thirteenth
year of the reign of his majesty King George the Third, " For the
Amendment and Preservation of the Highways," A. B.was charged tiie
sura of as his share and proportion of the said
346 Appendix.
assessment, in respect of the lands, tenements, woods, tithes, and here-
ditaments which he occupied within the said (jxirish, etc.) : And
whereas it appears to nie, upon the oath of that the said
sum of hath been duly demanded from the said A. B., and
that he hath refused to pay the same for the space of ten days after
such demand made, these are therefore, in his majesty's name, to com-
mand you to levy the said sum of by distress of the
goods and chattels of the said A. B., and if the same shall not be paid
within the space of four days next after such distress by you taken,
together with the reasonable charges of taking and keeping the same,
that you do then sell the said goods and chattels so by you distrained;
and out of the money arising by such sale, that you do pay unto C. D.,
the surveyor of the highways for the said (jynrish, etc.) of
the said sum of , to be employed for the purposes afore-
said ; and that you do return the surplus thereof to the said A. B. (the
reasonable charges of taking, keeping, and selling the said distress,
being first deducted); and if sufficient distress cannot be found of the
goods and chattels of the said A. B. whereon to levy the said sum of
that then you certify the same to nic, together with
this warrant.
Given under my hand and seal, the day of 18 .
General highway act. No. XXXIX.
Commitment for want of Distress.
Middlesex. 7'o the (Constable) of in the said County,
and to the Keeper of the Common Gaol (or the House of Correction)
at in the said County.
Whereas, A. B., of in the said count}' {yeoman),
was, on the day of convicted before
me, C. D., Esq., one of his Majesty's justices of the peace in and for
the said county, upon the oath of E. F., a credible witness, for that
he, the said A. B. [here set forth the o/fence], contrary to the statute
made in the thirteenth year of the reign of his majesty King George
the Third, " For the Amendment and Preservation of the Highways,"
by reason whereof the said A. B. hath forfeited the sum of :
And whereas, on the day of in the year
aforesaid, I did issue my warrant to the (constable) of
to levy the said sum of by distress and sale of the
goods and chattels of him the said A. B., and to distribute the same
according to the directions of the said statute: And whereas, it duly
appears to me upon the oath of the said (constable), that the said (con-
stable) hath used his best endeavours to levy the said sum on the goods
and chattels of the said A. B. as aforesaid, but that no sufficient dis-
tress can be had whereon to levy the same, these are therelbrc to com-
mand you, the said (constable) of aforesaid, to apprehend
the said A. B., and him safely to convey to the common gaol {or house
of correction) at in the said county, and there de-
liver him to the keeper thereof, together with this precept : and I do
hereby also con)manil you, the said keeper, to receive and keep in
your custody the said A. B. for the space of three months, unless the
L'unnji. 347
said sum shall be sooner paid, pursuant to the said conviction and
warrant ; and for so doing this shall be your sufficient warrant.
Given under my hantl and seal, the day of
in the year of our Lord 18
CD.
In the case of a commitment for the want of paj/ment of money due
hy an uascssmcnt, it muat be (to receive, and keep in your custody, until
he shall have paid the said sum of and the further sum of
being the costs and charges occasioned by his neglect
in paying the same).
General turnpike act, 3 G. 4. c. 126. No. XX.
Warrant to Distrain for Forfeiture.
To the (Constable, Headborough or Tithingman) of
Connty of to wit.
Whereas, A. J?., of , in the said county, is this day
convicted before me, C. D., Esq., one of his majesty's justices of the
peace in and for the said county, upon oath of G. H., a credible wit-
ness, for that the said A. B, hath [here set forth the offence, describing
it particidarly in the words of the etatide, as near as may be] contrary to
the statute in that case made and provided, by reason whereof the said
A. B. hath forfeited the sum of to be distributed as
herein is mentioned, which he hath refused to pay : these are there-
fore, in his majesty's name, to command yon to levy the said sum of
by distress of the goods and chattels of him the said
A. B. ; and if within the space of four days next after such distress by
yon taken, the said sum, together with the reasonable charges of taking
and keeping the same, shall not be paid, that then you do sell the said
goods and chattels so by you distrained, and out of the money arising
by such sale, that you do pay one half of the said sum of
to E. F. of who informed me of the said
offence, and the otlier half of the said sum of to I. K.
the surveyor of the turnpike road [describing ?7], where the said offence,
neglect, or default happened, to be employed toward the repair of the
said road, returning the overplus on demand, to him, the said A. B. (the
reasonable charges of taking, keeping and selling the said distress be-
ing first deducted) ; and if sufficient distress cannot be found of the
goods and chattels of the said A. B., whereon to levy the said sum of
5 that then you certify the same to me, together with
this warrant.
Given under my hand and seal, the day of
C. Z>.
General turnpike act, 3 G. 4. c. 12G. No. XXI.
Return of the Constable, to be made upon tlie Warrant of Dis-
tress^ where there are no Effects.
I, A. B., constable of the {parish, etc.) oi m the
county of - , do hereby tertily ami make oulh, that
348 Appendix.
bj' virtue of this warrant, I have made diligent searcli for the goods of
the within named , and that I can find no sufficient
goods whereon to levy the within sum of
As witness my hand, the day of
A.B.
Sworn before nie, the day and year, etc.
CD.
General turnpike act, 3 G. 4. c. 126. No. XXII.
Commitment for Want of Distress.
To the (Constable) of in the said county, and to the (Keeper)
of the common gaol (or the house of correction) at , in the
said county.
County of to wit.
Whereas, A. B. of in tlie said county, was on the
day of convicted before me, C. D., Esq., one of his Ma-
jesty's justices of the peace in and for the said county, upon the oath
of E. F. a credible witness, for that he the said A. B. [here set forth
the offence'], contrary to the statute made in the third year of the reign
of his Majesty King George the Fourth, " For regulating Turnpike
Roads," by reason whereof the said A. B. hath forfeited the sum of
: And whereas, on the day of
in the year aforesaid, I did issue my warrant to the (constable) of
to levy the said sum of by distress and
sale of the goods and chattels of him the said A. B., and to distribute
the same according to the directions of the said statute : And whereas
it duly appears to me, upon the oath of the said (constable), that the
said (constable) hath used his best endeavours to levy the said sum on
the goods and chattels of the said A. B. as aforesaid; but that no suffi-
cient distress can be had whereon to levy the same : these are therefore
to command you, the said (constable) of aforesaid, to ap-
prehend the said A. B., and him safely to convey to the common gaol
(or house of correction) at in the said county, and there
deliver him to the keeper thereof together with this precept : And I
do also command you the said keeper, to receive and keep in your
custody the said A. B. for the space of three months, unless the said
sum shall be sooner paid pursuant to the said conviction and warrant;
and for so doing this shall be your sufficient warrant.
Given under my hand and seal, the day of
in the year of our Lord 18 .
CD.
Burn's Justice, Vol. II. p. 761. See p. 147.
Warrant of Distress for not Scouring Ditches, &c.
to wit.
'Fo the constable of the parish of in the county of
Forasmuch as A. O., of the parish of , in the said
county of , \% convicted before mc, G. C, Esq., one of his ma-
:\4y
jesty's justices of the peace in and for the said county; for that he the
said A. O. (being the occupier of lands next adjoining to the common
highway in the said parisli of , and liable to cleanse, open,
and scour the ditch and drain lying between the said common highway
and the lands so occupied by him, the said A. O. as aforesaid, in order
to drain and keep dry the said common highway next unto such ditch,
as often as occasion should be, and having had due and legal notice
from the surveyors of the said parish to open, cleanse, and scour the
said ditch or drain so adjoining to the said highway as aforesaid) hath
for the space of ten days after such notice, neglected, refused, and
made default in opening, cleansing, and scouring the said ditch or drain
adjoining to the said highway in the said parish of , whereby
he hath forfeited tlie sum of ten shillings.
These are, therefore, in his §aid majesty's name, to command you to
levy the said sum of ten shillings, by distress of the goods of hiiu, the
said A. O., and if within the space of five days next after such distress,
by you taken, the said sum of ten shillings, together with the reason-
able charges of taking and keeping the said distress, shall not be paid,
that then you do sell the said goods so by you distrained; and out of
the money -.irising by such sale, that you do pay the said sum of ten
shillings to him the said surveyor, to be employed in such manner as
the statute in that case directs, returning to him, the said A. O., the
overplus upon demand.
Given under my hand and seal this day of
in the year of our Lord .
G. C.
Warrant.
General turnpike act, 3 G. 4. c. 126. No. XV. See p. 180.
Warrant from a Justice of the Peace to enter the Toll-Gtite
House, and remove the Persons therein.
To the (Constable, Headborough, or Tithingman), of .,
in the said County.
County of to wit.
Whereas complaint hath been made unto me, A.B., Esq., one of his
majesty's justices of the peace for the said county, upon the oath of
and other evidence now produced to me, that
C, Z>., who now inhabits the turnpike or toll-gate house at ,
upon the turnpike-road leading from to ,
and was appointed to collect the tolls there, hath been duly discharged
by the trustees of the said turnpike road, from any further collecting
or receiving the tolls arising at the said gate, and hath refused and still
doth refuse to quit the possession of the said house, and the said C. D,
having been summoned to appear before me this day, to shew cause
why he should not be removed from the said house, and having shewn
no sufficient cause for that purpose [or not having appeared], I do
hereby authorize and require you, with such assistance as shall be ne-
cessary, to enter into the said toll-house or turnpike-house, and the
buildings belonging thereto, in the day time, and to remove the said
C. D., and all such persons as shall be found therein, together with his
Apjyendix.
and their goods, out of such house and buildings, and to put E. F., the
person lately appointed by the trustees to collect such tolls, into the
possession thereof, for which this shall be your sufficient warrant.
Given under my hand and seal this day of
[This form may be varied to suit the case of the widow or family of a
deceased collector^
.,'(> -
Burn's Justice, Vol. II. p. 762. See p. 27.
X. Warrant to apprehend the Driver of a Waggon, Cart, &c.
for Misbehaviour.
County of to wit. To all constables, and other Ms 7najesty\
officers of the peace for the said county.
These are, in his majesty's name, to command you, and every of
you, upon sight hereof, to take and bring before me, or some other of
his majesty's justices of the peace for the said county, the body of
A. D., the driver of a certain belonging to ,
of , in the said county , to answer to all such
matters and things, as on his majesty's behalf, are on oath objected
against him by , for riding upon a certain carriage called
a , in a public highway in the said county, he the said
A. D. not having some other person on foot or on horseback to guide
the same, and which said carriage was not then conducted by some
person holding the reins thereof. Hereof fail not at your peril.
Given under my hand and seal, this day of ,
and in the year of our Lord
Weighing Engine.
General turnpike act, 3 Geo. 4. c. 126. No. I. See p. 142.
Order of Trustees for Erecting a Weighing Engine.
At a Meeting of the Trustees of the Turnpike Roads, under an act
passed in the year of the reign of his Majesty
King George the , " For " [state the title of the act] held
at the day of
In pursuance of the powers given to us by an act passed in the third
year of the reign of his majesty King George the Fourth, for regulating
turnpike roads, we do hereby order that an engine proper for the
weighing of carriages of the constructions and weights specified in the
said act, be forthwith erected at, or as near as conveniently may be to
the toll-gate or bar now erected upon the said turnpike road at
; and that A. B. the [treasurer, clerk or] surveyor
of the said tui'npike road, do contract with some proper person [or,
with C. D.] [in case the trustees shall think fit to name the j>crso7i], for
the making and erecting such engine, and do inspect and take care
that the same is proijcrly done ; and we do order the gatekeeper at the
said gate or bar for tiie time being to attend the said weighing engine,
and carc'fuily to weigh all carriages passing loaded upon the said road,
at the place where such engiim shall be erected, together with the
loading thereof, and to take the several additional tolls or rates for
Forms. 351
overweight, and give tickets of the weight of such carriages and load-
ing, when rcqtiircd by tlie driver tlicrcof, and also to enter in a separate
book to be kept b}' him for that purpose, au account of every car-
riage so weighed, whicli shall with the loading exceed the weights
allowed by the said act, and account to us for the money received for
all such overweight.
General turnpike act, 3 G. 4. c. 12(). No. III. See p. 142.
Agreement between Trustees of different Turn])ike Roads fitr *♦
Erecting One Weigliing Engine for the Use of such Roads.
At a Meeting of the Trustees of the Turnpike Roads, under an act
passed in the year of the reign of King George the
"For" [silnlc the principal part of the title of the acf] and also of the
Trustees of the Turnpike Roads, under an act passed in the
year of the reign of King George the " For " [Sec. as
abovc~\, held at the day of
for the purpose of agreeing upon and ordering a Weighing Engine
at the joint expence of the Trustees, for the use of the said several
Turnpike Roads, pursuant to the ])owers given by an act passed in
the third year of the reign of his majesty King George the Fourth,
" For regulating Turnpike Roads :"
It appearing to us, that a weighing engine may be erected at
{describing the spot ivhere it can he most convenientlt/
placed], M'hich will accommodate both the said turnpike roads, accord-
ing to the true intent and meaning of the said act : we do therefore
order, &c. [as in the form above mentioned], and we do hereby agree
and order, that the expences of making and erecting the said weighing
engine, and the sum of which we do hereby agree
and order shall be paid to the toll gatherer attending the said toll-gate
for the time being, weekly for his extraordinary trouble in attending
the said weighing engine, shall be advanced and paid by the treasurers
of the said several turnpike roads, in the shares and proportions fol-
lowing: viz. that the treasiu'er of the road shall pay [one
half], [two third], [three fourth] parts thereof, [as the trustees shall
agree], and the treasurer of the road shall pay the remain-
ing [one half], [one third], or [one fourth] part thereof; and that the
money to be received at the said weighing engine by forfeitures for
overweight, shall be paid to the said respective treasurers in the like
proportions, and applied by thera for the use of the said respective
turnpike roads.,
(Signed)
Widening Higktvai/s. See Highways.
352
II, PRECEDENTS OF INDICTMENTS,
PLEADINGS, ETC.
INDICTMENTS FOR THE NON-REPAIR OF HIGHWAYS,
AND PLEAS THERETO.
Indictment against the Inhabitants of a Parish for not repairing
a common Higlnvay.
That on, &c., there was, and from thence hitherto hath been, and
still is, a certain common King's highway, leading from A. in the coun-
ty of C. towards and unto D. in the said county, for all the liege sub-
jects of our said lord the King, with their horses, coaches, carts and
carriages, to go, return, pass, repass, ride and labour, at their free will
and pleasure; and that a certain part of the same King's common high-
way, situate, lying and being in the parish of F. in the county of M.,
containing in length and in breadth , on, &'c. was
and from thence until the day of the taking of this inquisition, hath
been and still is at the parish of F. in the county aforesaid, very
ruinous, miry, deep, broken and in great decay for want of due repa-
ration and amendment of the same, so that the liege subjects of our
said lord the King through the same way, with their horses, coaches,
carts and carriages, could not, during the time last aforesaid, nor yet
can go, return, pass, repass, ride, and labour, without great danger of
their lives and the loss of their goods, to the great damage and com-
mon nuisance of all the liege subjects of our said lord the King,
through the same way going, returning, passing, repassing, riding,
and labouring, and against the peace of our said lord the King,
his crown and dignity, and that the inhabitants of the said parish of
F. in the said county of M., the common highway aforesaid, so as
aforesaid being in decay, ought to repair and amend when and so often
as it should or shall be necessary.
Plea by two of the Inhabitants of a Parish that they are not
Guilty as to part of the Road in question, and as to the
rest, that it ought to be repaired by particular individuals, by
reason of the inclosurc of certain Lands.
And A. B. and C. D. two of the inhabitants of the said parish of M.
for themselves and the rest of the inhabitants of the said parish of M.,
except E. F., G. II., and I. K. come, and having heard the said in-
dictment read, say, that as to certain jjart of the said highway, in the
said indictment specified, and therein mentioned to be ruinous and in
decay, beginning at A. and extending from thence to B. in the said in-
dictment mentioned, and therein alleged to be ruinous and in decay as
Precedents of Indictmenia, Pleadings, S,-c.
nforcsaitl, they arc not guilty of the premises in tlie saitl iiulictnient
specified, above laid to their charge, as by the said indictment is above
supposed, and of this they put themselves upon the country, &c, ; and
as to the residue of the same highway, they say, that they do not in-
tend, that our said lord the King will further proceed against the said
inhabitants of the said hamlet of M. or any of them, except the said
E. F. and G. II. and /. K., by reason of the premises in the said in-
dictment specified ; because they say, that the said residue of the said
highway, in the said indictment mentioned, and therein alleged to
be ruinous, miry, deep, broken, and in decay, adjoins, and from time
whereof the memory of man is not to the contrary, hath adjoined to
certain lands in the parish of M. aforesaid, now and at the time of the
taking of the said inquisition, in the several occupations of the said
E. F. and G. H. ami /. K, ; and that the said residue of the said high-
way, in the said indictment mentioned, and therein alleged to be ruin-
ous, deep, miry, broken and in decay as aforesaid, from time whereof
the memory of man is not to the contrary, until the inclosurc thereof
hereinafter mentioned, was a certain conunon King's highway, upon
and leading over a certain piece of open and unincloscd ground,
called , of which the said several lands, in the several
occupations of the said E. F., G. II. and /. K. were parcel, and not
separated or divided from the same by any fence or inclosure. And
that afterwards, to wit, on, &c. the same residue of the same highway
was inclosed on both sides thereof by certain fences, then erected and
made in and upon the said respective lands, now in the occupation of
the said E. F. and G. II. and I. A"., and continually from that time
hitherto hath continued, and still continues, so inclosed as aforesaid ;
and at the time of the taking the said indictment, and continually from
thenceforth hitherto hath been, and still is continued so inclosed by
the said E. F. G. H. and /. K. respectively, by and with the respective
fences of their said respective lands. And that the said E. F. G. H-
and /. K. respectively, by reason of their said continuance of the said
inclosure of the said residue of the said highway, so being ruinous and
in decay as aforesaid, ought to have repaired and amended, and still
ought to repair and amend, the said residue of the same highway, so
long as they have continued and shall continue the said inclosurc, in
** manner following : that is to say, the said E. F. ought to rei)air and
amend so much of the said rcsiiluc of the said highway throughout the
whole breadth thereof, as hath been so continued inclosed by him, on
both sides thereof as aforesaid; and so much thereof as hath been so
continued inclosed by him on one side thereof only, the said E. F.
ought to repair the same highway, on that side thereof, as far as the
middle of the same highway ; and the said G. II. and I. K. respectively
ought, in like manner, to repair the respective parts of the said residue
of the said highway adjoining to the said respective inclosures, so con-
tinued by them respectively as aforesaid, throughout the whole breadth
thereof; where the same is so inclosed by them respectively on both
sides thereof, and where the same is so inclosed by either of them on
one side thereof only, then the said G.//. and I.K. respectively ought
to repair the same respective parts, so inclosed by either of them on
one side, on such respective side only as far as the middle of tlie same
highway, so long as their said respective inclosures shall be continued
by them respectively as aforesaid ; and this the abovomcntioned A. li.
and C, D. for themselves and the rest of the inhabitants of the said
353
354 Appendix.
parish of ilf. (except as aforesaid) are ready to verify; wherefore they
pray judgement of the court here, and that they may be dismissed and
discharged of the premises in the said indictment above specified.
Plea, that the Parish consists (if several Townships, each of
which is bound by Custom to repair its own Roads.
And A. B. and C. D., two of the inhabitants of the parish of B., by
M. N., their attorney, for themselves and the rest of the inhabitants of
the said parish, except the inhabitants of the townships of C. and H.
hereinafter mentioned, come, and having heard the said indictment
read, say, that they do not intend that our said lord the King ought
further to proceed against the inhabitants of B. except as aforesaid,
by reason of the premises in the said indictment specified, because they
say that the said parish of ^. now is, and at the time of the taking of the
said inquisition was, and from time whereof the memory of man is not
to the contrary, hitherto hath been divided into divers, to wit, seven
districts and different townships, that is to say, one township there
called C, and one other township there called H., and that within the
said parish there now is, and at the time of the taking the said inquisi-
tion there was, and during all the time aforesaid there hath been, a cer-
tain ancient and laudable custom there during all the time aforesaid used
and approved of: that is to say, that the inhabitants of each of the said
several townships, from time whereof the memory of man is not to the
contrary, have repaired, maintained, and amended, and have used and
been accustomed to repair, maintain, and amend, and during all the
time aforesaid of right ought to have repaired, maintained, and amend-
ed, and still of right ought to repair, maintain and amend, all and every
the King's common highways lying and being within their own respec-
tive townships, that would be otherwise repairable by the inhabitants of
the said parish of B, at large, when and as often as necessary; and
that the inhabitants of the said parish at large have not, during all or
any part of the time aforesaid, repaired, maintained, or amended, and
have not been used or accustomed to repair, maintain, or amend, and
of right ought not to repair, maintain, or amend the King's common
highways within the said parish, or any of them or any part thereof.
And the said defendants further say, that so much of the said common
King's highway, in the said indictment mentioned, and therein alleged
to be ruinous and in decay, as beginning at M. in the parish aforesaid,
extends from thence eastwards, for the length of yards,
now is, and during all the time aforesaid, hath been situate and lying
within the said township called C, and during all that time was and is
one of the King's highways in that township, that, but for the said cus-
tom, would be repairable by the inhabitants of the said parish at large;
and that the same part of the said highway, during all the time afore-
said, of right has been repairable, and during all that time ought to
have been repaired, maintained, and amended, and still of right ought
to be repair(!(l, maintained, and amended, by virtue of the said custom,
by the inhabitants of the said township called C, when and as often as
necessary, and not by the inhabitants of the said parish of B. at large;
and that the residue of the said highway in the said indictment men-
tioned, and therein alleged to be ruinous and in decay, now is, and
during all the time aforesaid has been, situate and lying within the
township called H., and during all that time was and is one of the
Prccedenls of 1 lul'utnieiils, P/eailings, t^f. 355
King's common highways in that township, that, but for the said custom,
would be repairable by the inhabitants of the said parish at large, and that
the same part of the said highway, during all the time aforesaid, of
right hath been repairable, and during all that time ought to have
been repaired, maintained, and amended, and still of right ought to be
repaired, maintained and amended, by virtue of the said custom, by the
inhabitants of the said township called //., when, and as often as ne-
cessary, and not by the inhabitants of the said parish at large; and this
the said A. B. and C. Z). are ready to verify, wherefore they pray judge-
ment, &c. {as before.)
See other Precedents of Pleas by the Parish. Starkie's Criminal
Pleading, Vol. II. pp. 800. 80fa'. 6 Went. .394. Archbold's Criminal
Pleading, p. 418, &c.
Indictment against a particular Division of a Parisli for nut Re-
pairing a Highway. Starkie, Vol. II. p. GdQ.
Plea bv a To\^nsliip to an Indictment for not Repairinc; a High-
way, Confession as to Part, Not Guilty as to the Rest. Id. p. 80H.
And A. B. and C. D., Src, say, that as to so much of the said high-
way in the said indictment mentioned, and therein supposed to be
ruinous, miry, deep, broken and in decay, as lies betwixt the said place
in the said indictment mentioned, called B. G. and a certain place at
the township of C. aforesaid, called S. H., containing in length
yards, they cannot deny that they are guilty of the premises in that
behalf above laid to their charge, in manner and form as by the said
indictment is above supposed and alleged; and as to the rest of the
premises, by the said indictment above laid to their charge, they say
for themselves and the rest of the inhabitants of the township of L.
aforesaid, that they are not guilty thereof in manner and form as in
and by the said indictment is above supposed, and of this they put
themselves upon the country, &c.
General Issue. Archb. p. 424.
And J. S. and J. N'., two of the inhabitants of the said district or
township called C, in the said parish of i^. B., by J. 5., their attorney,
for themselves and the rest of the inhabitants of the said district or town-
ship, 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 them-
selves upon the country, &c.
Indictment against an Individual for not Repairing a Road, to
the Repair of which he was bound, ratio/ie tcnurce.
[The same form as in the indictment against a parish, only at the
end, instead of charging the inhabitants with the repair, say, " And
A A 2
356 Appendix.
that A. B. late of, &c., esq. ought, by reason of his 'tenure of certain
lands, situate, lying, and being at, &c. in the county aforesaid, to repair
and amend the said highway, when and so often as it shall be neces-
sary"].
See Starkie ut supra, p. 695, and see other precedents of indict-
ments for non-repair, Id. pp. 698. 782. 4 Wentw. 157, &c. 6 Wentw.
Index, tit. viii.
General Issue. Archb. p. 423.
And the said A. C, by A. JB., his attorney, comes into court here,
and having heard the said indictment read, says that he is not guilty
of the said premises in the said indictment above specified and charged
upon him ; and of this he puts himself upon the country, &c.
Replication, denying the liability ratione tenurce.
And M. N., esq., coroner and attorney of our said sovereign lord
the King, in the court of our said lord the King, before the King him-
self, who prosecuteth for our said lord the King in this behalf, for our
sovereign lord the King saith, that by any thing in the said plea above
alleged, our said lord the King ought not to be barred from prose-
cuting the said indictment against the said inhabitants of the said pa-
rish of L. in the said county of M., because, protesting that he doth
not acknowledge any thing in the said plea to be true for plea in this
behalf, for our said lord the King saith, that the said E. F., by reason
of his tenure of the said lands and tenements in the said plea men-
tioned, ought not to repair the said part of the said highway by the said
indictment supposed to be out of repair, as in the said plea is above al-
leged ; and this the said coroner and attorney of our said lord the King,
for our said lord the King prayeth may be inquired of by the country ;
and the said A. B. and C. D., two of the inhabitants of the said parish
of , for themselves and the rest of the inhabitants of
the said parish do the like.
See other Precedents of Pleas, &c. in case of Non-Repair, Starkie,
ut supra, pp. 805, 806. 814. 4 Wentw. 161.6 Wentw. Index, tit. viii.
Indictmenls — Obstructions. Stark, p. 690.
Indictment for Digging a Hole in a Street, being the King's
Highway.
to wit.
The jurors for our lord the King upon their oath present that
A. O. late of on &c., at &c.
in a certain street, being the King's common highway there, called
, (used for all the King's subjects with their horses,
coaches, carts, and carriages, to go, return, ride, pass, repass, and la-
bour at their free will and |)lcasure), unlawfully and injuriously did dig,
and cause to be dug, a certain pit, containing in circumference fifteen
feet, and in dci)th thirteen feet; and the same pit, so as aforesaid dug,
and caused to be dug, in the street and highway aforesaid, from the
Precedents of Indictments, Pleadings, S^c. 357
day and year aforesaid, until , at, &c., unlawfully and in-
juriously did continue. By reason whereof, the King's subjects, during
the lime aforesaid, could not go, return, pass, rejjass, ride, a:id labour
with tiieir horses, coaches, carts, and carriages, in, by, and through the
same street and highway as they were wont and ought to do, without
great peril and danger of their lives, to the great damage and common
nuisance of all the liege subjects of our said lord the King, in, by, and
through the same street and highway, going, returning, passing, re-
passing, riding, and labouring, and against the peace, &c.
See other indictments of a similar kind, Starkie, p. GDI. Aixh-
bold, p. 413. Burn's Justice, Vol. II. p. 770.
Indictment for Encroacliing upon a. Highway, by Building
thereupon. Burn's Justice, Vol. II. p. 'J&J.
to wit.
The jurors for our lord the King upon their oath present. That
A. 0. late of , carpenter, on the day of
in the year with force and
arms, at in and upon a common highway, in a certain
place commonly called there, leading from
to by a certain building there, containing in length
feet, and in breadth feet, by b.im the said A. O. erected
and built, hath unlawfully and unjustly encroached, and doth yet en-
croach, and the building aforesaid, so as is aforesaid erected and built
by him the said A. O. from the aforesaid day of
in the year aforesaid unto the day of exhibiting this information, at
aforesaid, in the county aforesaid, witii force and arms
unlawfully and unjustly hath continued, and doth continue, by reason
whereof the common highway aforesaid hath become and is greatly
straitened, so that the liege subjects of the said lord the King upon
and through the same common highway aforesaid, with their horses,
carts, and carriages cannot go, pass, ride, and labour as they ought and
were wont to do, to the great and conmion nuisance of all the liege
subjects of the said lord the King in and through the said common
highway going, passing, riding, and labouring, and against the peace of
the said lord the King.
ludictmcnt for Inclosing the Highway. Ibid.
to wit.
The jurors for our said lord the King upon their oath present. That
whereas from tlio time whereof the iuemory of man is not to the con-
trary, the liege subjects of our said lord the King had and lawfully used
a certain common highway at in the said county, in a
certain place there called , leading from the town of
aforesaid, to the town of , for themselves and their goods
without any stoppage or hindrance by any ditches, hedges, or other
obstacles whatsoever ; nevertheless, one A. O. of afore-
said, in tlic county of aforesaiiH yeoman, on the
day of in the year ot' the reign of ^
358
Appendijc.
with force and arms, at aforesaid, in the connty of
aforesaid, in the place aforesaid, called upon the common
highway aforesaid, a certain ditch and quickset hedge did make, and
the said ditch and quickset hedge so as aforesaid made, doth yet con-
tinue and keep, to the great stoppage and hindrance of the liege sub-
jects of our said lord the King passing in and through the said common
highway, and against the peace of our said lord the King.
Indktmenls, Pleas, Sfc. — Non-repair of Bridges. Stark. Vol. II.
p. 701.
For not Repairing a Public Bridge.
That a certain common bridge, commonly called ,
lying and being in the parish of B. in the county of E., in the common
King's highway, there leading from B. aforesaid, in the county afore-
said, to the town of R, in the same county, being a common highway
for all the liege subjects of our said lord the King, and his predeces-
sors, with horses, carts, and carriages, to pass and repass, ride and la-
bour, at their free will and pleasure, on, &c. was and still is in great
decay, broken and ruinous, so that the liege subjects of our said lord
the King, in, upon, and over the said bridge, with horses, carts, and
carriages, could not and cannot pass and repass, ride and labour as
they ought and were accustomed to do, to the great damage and com-
mon nuisance, &c. and against the peace, &c. [7/" the prosecution be
against an individual ratione tenurce, then allege,] and that A. B. late of,
Szc, by reason of his tenure of certain lands, lying in the parish of B.
in the said county, is bound to repair and amend the said common
bridge as often and whenever it shall be necessary. [7/* against a
county allege^ and that the inhabitants of the county aforesaid are
bound to repair and amend the said common bridge, when aiv'^ so often
as it shall be necessary.
For other such precedents, see Archbold, p. 424.
Plea by an Individual to an Indictment for not Rejiairing an
Higliway or Bridge. Stark, p. 808.
And the said A. B.,hy C. Z)., his attorney, comes, and having heard
the said indictment read to him, says, that he is not guilty of the pre-
mises in the said indictment specified, above laid to his charge, and of
this, he the said A.B. puts himself upon the country.
Demurrer to an Indictment against a Connty for the Non-repair
of a Public Bridge. Starkie, p. 809.
Precedents of Itidiclmenls, Pleadings, S^^c. 359
Precedents of Declarations, Pleas, S^r. respecting Rights of
Way.
Indebitatus Assmnpsit fiir Tolls on Loaded Carriages passing
over a Bridge. (Jhitty's Pleadings, Vol. II. p. 47-
Indebitatus Assumpsit for the Use of a 'Way. Chittv's
Pleadings, Vol. II. p. 39.
Case for Disturbance of a Way. Cliitty, Vol. II. p. 405.
For that whereas, the said A. B. before and at the time of the com-
mitting of the grievance hereinafter next mentioned, was, and from
thence hitlierto hath been, and still is, lawfully j->ossessed of a certain
messuage and garden thereto belonging, with the appurtenances,
situate, lying, and being at, &c. And by reason thereof, the said A. B.,
during all the time aforesaid, ought to have had, and still of right
ought to have, a certain way from and out of the said garden, unto,
into, through, and over a certain close, in the parish aforesaid, and
from and out of the same, unto and into a certain wharf, or quay, of
the said A. B. in the parish aforesaid, and so back again from the said
wharf, or quay, unto and into, through, over, and along the said close,
and from and out of the same unto and into the said garden of the said
A. B. for himself and his servants, on foot, to go, return, pass, and re-
pass every year, and at all times of the year, at his and their free will
and pleasure, as to the said messuage and garden, with the appurte-
nances of the said A. B. belonging and appertaining. Yet the said
C. /)., well knowing the premises, but wrongfully and unjustly contriv-
ing, and intending to injure the said A. B, in that behalf, and to deprive
him of the use and benefit of his said way, whilst he, the said A. B.,
was so possessed of his said messuage and garden, with the appurte-
nances as aforesaid, to wit, on, &c., and on divers other days and
times between that day and the day of exhibiting this bill, at, &c.
aforesaid, wrongfully and injuriously placed and erected, and caused
and procured to be placed and erected, divers large qj; ntities of boards,
planks, and wood, in and across the said way, and put ar.\ placed, and
caused and procured to be put and placed, divers other large quantities
of wood and timber in the said way, and kept and continued the said
boards, planks, and wood, so placed and erected in and across the said
way as aforesaid, and also the said other wood and timber in the same
way as aforesaid, for a long space of time, tc wit, hitherto, and thereby
during all the time aforesaiil, the said way was and still is greatl}' ob-
structed and stopped up; and the said A. B. by means thereof could
not, during the time aforesaid, or any part thereof, nor can he now
have or enjoy his said way, as he of right ought to have done, and
otherwise might and would have done, and hath been, and is by means
of the premises deprived of the use, benefit, and advantage thereof, to
wit, at, &c. aforesaid.
And whereas also, the said A. B. before and at the time of the com- .«efondcount,
mitting of the grievances hereinafter mentioned was, and from thence v-WT-
hitherto hath been, and still is, lawfully possessed of a certain other
messuage, with the appurtenances, situate at, &c., and bv reason
360 Appendix.
thereof the said A. B. during all the time aforesaid, ought to have had,
and still of right ought to have, a certain way from the said messuage
of the said A. B. unto, into, through, and over a certain close in the
parish aforesaid, unto and into a certain common and public highway
in the county aforesaid, and so back again from the same common and
public highway, unto, into, through, and over the said close, and from
thence into the said messuage of the said A. B. for himself and his
servants to go, return, pass, and repass, on foot, every year, at all
times of the year, at his and their free will and pleasure, as to his said
last-mentioned messuage, with the appurtenances belonging and ap-
pertaining. Yet the said C. D., well knowing the said last-mentioned
premises, but wrongfully and unjustly intending to injure the said A. B.
in that behalf, and to deprive him of the use and benefit of his said
last-mentioned way, whilst he the said A. B. was so possessed of the
said last'-mentioned messuage, with the appurtenances, and so entitled
to the said way as aforesaid, to wit, on, &c. as aforesaid; aiid on divers
other days and times between, &c. at, &c. aforesaid, wrongfully and
injuriously stopped up and obstructed the said last-mentioned way, and
the said A. B. by means thereof could not, during the time aforesaid,
nor can he have or enjoj' his said last-mentioned way, as he of right
ought to have done, and otherwise might and would have done, and
hath been, and is deprived of the use, benefit, and advantage thereof,
to wit, at, &c. aforesaid.
See other precedents, 8 Wentw. Index, Iv. (5). 9 Wentw. Index,
XV. 3 Ld. Raym. 85.
Disturbance of a Ferry. Chit. Vol. III. p. 447-
For that whereas the said plaintiffs, before and at the time of the
committing of the grievances hereinafter in this count mentioned,
were, and from thence hitherto have been, and still are, entitled as
trustees for the society of free waterman of the river Thames, residing
at Greenwich, in the county of Kent, called the Isle of Dogs Ferry
Society, to the fee-simple and inheritance of an ancient ferry, called
Potter's Ferry, for foot passengers and goods belonging to such foot
passengers, across the river Thames, to and from a certain place in the
Isle of Dogs, in the parish of St. Dunstan Stebonheatli, otherwise
Stepney, in the county of Middlesex, from and to Greenwich, in the
county of Kent, taking for the carriage and conveyance of such pas-
sengers and their goods, over and across such ferry, in any boat or
boats kept by, or by the authority of them the said plaintiffs for that
purpose, certain reasonable freights or ferryages, to wit, two-pence for
every person on foot; nevertheless, the said defendant, not being one
of the i'rce watermen aforesaid, but well knowing the premises, and
contriving to disturb and injure the said plaintiffs in the peaceable and
lawful enjoyment of their said ferry, heretofore, to wit, on the
day of , in the year of our Lord , and on
divers other days between that day and the day of exhibiting this bill,
to wit, at Westminster, in the county of Middlesex, injuriously and
unlawfully, and against the will of the said plaintiffs, carried and con-
veyed in a certain !>oat of him the said deCeiulant, divers foot passen-
gers for hire, over and across the said river 'J'hamcs, anil upon the said
part of the same river wlicre the saiil plaintilfs had such Icrry a:i afore-
rrcccchfdx of Indictments J Pleadinga, S^c. 361
saiil, and upon tl:e said ferry of them tlie said plaintiffs, by reason
wiiercof the said plaintiffs have lost and been deprived of divers pro-
fits and eniolunients, which woukl otherwise have arisen and accrued
to them from the enjoyment of tlieir said ferry, and have been and are
greatly prejudiced and disturbed in the possession thereof, and their
right and title thereto, to wit, at Westminster aforesaid, in the county
of Middlesex aforesaid. And the said plaintiffs further say, that they
the said plaintiffs so being entitled as trustees for the said society, to
the fee-simple and inheritance of the said ferry as aforesaid, the said
defendant not being one of the free watermen aforesaid, but well
knowing the premises, and further contriving to disturb and injure the
said plaintiffs ifi the peaceable and lawful enjoyment of their said
ferry, heretofore, and whilst the said plaintiffs were so entitled, as
trustees as aforesaid, to the fee-simple and inheritance of the said
ferry, to wit, on the said day of , in the
year of our Lord , and on divers other days and times
between that day and the day of exhibiting this bill, to wit, at West-
minster aforesaid, in the county of Middlesex aforesaid, injuriously
ivnd unlawfully, and against the will of the said plaintiffs, carried and
conveyed in a certain boat of him the said defendant, divers foot pas-
sengers for hire, over and across the said river Thames, near to the said
part of the same river, where the said plaintiffs had such ferry as
aforesaid, and near to the said ferry of them the said plaintiffs; by
reason whereof the said plaintiffs have lost and been deprived of divers
other profits and emoluments which would otherwise have arisen and
accrued to them from the enjoyment of their said ferry, and have been
and are greatly prejudiced and disturbed in the possession thereof, and
their right and title thereto, to wit, at Westminster aforesaid, in the
county of Middlesex aforesaid. And also for that whereas the said
plaintiffs, before and at the time of committing the grievances in this
count mentioned, were and still are lawfully possessed of a certain
ancient ferry, with the appurtenances, upon and over the river Thames,
to and from a certain place in the Isle of Dogs, in the parish of St.
Dunstan Stebonheath, otherwise Stepney, in the said county of Mid-
dlesex, from and to Greenwich aforesaid, in the county of Kent afore-
said, for carrying and conveying, within the said last-mentioned ferry,
all persons and their goods, having occasion for the same, in boats kept
by and by the authority of them the said plaintiffs there for that pur-
pose, taking for the same certain reasonable freights and ferryages, to
wit, two-pence for each person ; yet the said defendant, well knowing
the premises last aforesaid, but contriving to disturb and injure the
said plaintiffs in the peaceable enjoyment of their said last-mentioned
ferry, heretofore, to wit, on the said day of ,
in the year of our Lord , and on divers other times be-
tween that day and the day of exhibiting this bill, to wit, at ^\'est-
niinster aforesaid, in the county of Middlesex aforesaid, unlawfully,
injuriously, and wrongfully, carried and conveyed divers passengers, for
hire, in a certain boat, over and across the said river, and upon the
said part of the said river where the said plaintiffs had such ferry as
last aforesaid, and over, upon, within, and across the said last-men-
tioned ferry of the said plaintiffs, and thereby they the said plaintiffs
lost divers great gains and profits, which would otherwise have accrued
to them from the said last-mentioned ferry, and have been disturbed
and disquieted iii the possession theicuf, and in their right and title
362
Appendix.
thereto, to wit, at Westminster aforesaid, in the county of Middlesex
aforesaid. And the said plaintiffs further say, that they the said plain-
tiffs, so being possessed of the said last-mentioned ferry, with the ap-
purtenances as aforesaid, the said defendant, well knowing the premises
last aforesaid, but further contriving and intending as last aforesaid,
heretofore, and whilst the said plaintiffs were so possessed of their
said last-mentioned ferry, with the appurtenances as aforesaid, to wit,
on the said day of , in the year of our Lord
, and on divers other days and times between that day
and the day of exhibiting this bill, to wit, at Westminster aforesaid, in
the county of Middlesex aforesaid, unlawfully, injuriously, and wrong-
fully, carried and conveyed divers passengers, for hire, in a certain boat
of him the said defendant, over and across the said river, and near to
the said part of the said river where the said plaintiffs had such ferry
as last aforesaid, and near to the said last-mentioned ferry of the said
plaintiffs, and thereby they the said plaintiffs lost divers other great
gains and profits which would otherwise have accrued to them from
the said last-mentioned ferry, and have been disturbed and disquieted
in the possession thereof, and in their right and title thereto, to wit,
at Westminster aforesaid, in the county of Middlesex aforesaid, to the
damage, &c.
See 6 B. & C, p. 703.
Plea (for en-
tering close,
consuming
grass, and
breaking
down gate)
that there is
a common
highway over
lorus to pass
through with
horses and
carts, and be-
cause the
■way was ob-
structed by
the gates, de-
fendant
pulled them
down.
Trespass. — Pleas in.
Plea of Public Right of Way.
Right of Way. 9 Wentw. p. 233.
First, General Issue : And for further plea in this behalf as to all
the trespasses in the said declaration mentioned, and above supposed
to have been done by the said defendant, except the coming with force
and arms, and whatsoever is against the peace of his present Majesty,
the said defendant, by leave, &c., says, (actio non); because he says,
that the said close in which, &c. in the first count of the said declara-
tion mentioned, and the said close in which, &rc., in the second count
of the said declaration mentioned, are one and the same close, and not
divers or different closes, and that the said several supposed trespasses
in the first and second counts of the said declaration mentioned, ex-
cept the coming with force and arms, and whatever is against the
peace of his present Majesty, are the very same identical trespasses,
and not divers or different trespasses, and that in, through, and over
the said close in which, &'c., at the said several times when, &c., and
long before, there was, and yet is a certain common public highway
leading from the village of Little Hampton, in the said county, to,
through, and over the said close in which, &'c., to the village of Wash-
ington in the said county, for all the liege subjects of our said lord the
King to go, return, pass, and repass, as well on foot as on horseback,
and with their cattle, carts, waggons, and other carriages, in and along
the said public highway there from the said village of L. in the said
county, in, through, and over the said close in which, &c., to the said
village of IV., as it was lawful for iiim to do for the cause aforesaid,
and in so doing the said defendant, at the said several times when, &c.,
with his ftcl ill walking, and with the i'cct of the said cattle necessarily
Preccdtnl.s uj' Iiidicl/iic/il:', Pleodi/igs, c^-c.
363
•and unavoidably trod down, trampled upon, spoiled, and consumed a
little of the grass then growing in tlie said close in which, &'c., in the
said highway there, and the said cattle at the said several times when,
&c., in passing and repassing along the said highway through the said
close of the said Sir //. G., in which, &c. as aforesaid, against the will
of the said defendant, snatched, ate up, and depastured a little of the
grass there then growing, doing as little damage to the said close in
which, &c., as might be on the occasion aforesaid, and with the said
tarts, waggons, and other carriages, crushed, squeezed, antl spoiled a
little other of the grass of the said Sii* H. in the said highway there,
and ploughed up, turned up, and spoiled a little of the soil in the said
highway there, doing as little damage as might be on the occasion
aforesaid ; and because at the said several times when, &c., the said
hedges, fences, and gates were wrongi'ully erected, standing, and being
in the said close in which, &c., across the said way there, and the said
close in which, &c., across the said way there, and the said gates, at
the said time when, &c., were wrongfully locked, fastened, and chained
with the said locks, bars, iron bolts, and chains, and obstructed the
said way there, so that the said defendant could not pass with the said
cattle, carts, waggons, and carriages along the said highway there, he,
the said defendant, for having a necessary passage along and over the
said highway at the said several times when, &c., did a little pull down,
tear down, break to pieces, and destroy the said hedges, fences, and
gates, and the said locks, iron bars, bolts, and chains wherewith the
said last-mentioned gates were then and there locked and fastened,
broke oftj and wrenched from the said last-mentioned gates and the
materials thereof coming, laid down at the side of the highway
in the said close in which, &c., and left the same in a convenient
place there for the use of the said Sir H., doing as little damage as the
said defendant possibly could, which are the several supposed trespasses
in the said declaration mentioned, whereof the said Sir H. hath above
complained [except coming with force and arms, and whatever is
against the peace of our present majesty] ; and this, &c. ; wherefore,
&c. : And for further plea in this behalf as to all the trespasses in the
said declaration mentioned, and above supposed to have been done by
the said defendant (except, &c.) the said defendant, by leave. Sec. (actio
non); because he says, that the said closes in which, &c. in the said
first and second counts of the said declaration mentioned, are one and
the same close, and not other or different closes, and that the several
and supposed trespasses in the said first and second counts of the said
declaration mentioned, except as are in this plea above excepted,
are the very same identical trespasses, and not other or different
trespasses : And the said defendant further says, that William Frank-
land, Esq., long before the said first time when, &c., and at the said
several times when, ith
their cattle, carts, waggons, and other carriages in and along the said
liigliway in the said close in whicii, ivrc, at all times, at their free will
and pleasure, as the said defendant hath in his plea secondly above
pleaded in bar alleged ; and tiiis, iVc. j wlicrcforc, &c. : And the said
Precedents of Indictmcnffi, Pleadings, ^-c.
365
Sir H. as to the said pica of the said defendants by him lastly above
pleaded in bar, as to the breaking, &c.{2)rccludi nnn) ; because he says, ne injuria,
that the said defendant, at the said several times when, &c. of his own "^ '"
wrong broke, &c. &c. in manner and form as the said Sir H. hath above
thereof complained against them ; without this, that the said William Traverse of
Frankland, and all those whose estates he hath, and at the said several '^'s'^'^o^ ^^V*
times when, &c. had of and in the said mansion-house, &c. from time
whereof, &c. have had and used, and been accustomed to have and
use, and still of right ought to have and use for himself and themselves,
and his and their farmers and servants, occupiers of the said mansion-
house, &c. called M. into, through, and over the said close called the
road, in which, &c. into a certain place called W. and so from thence
back again in, through, and over the said close called i\\^ lioad in which,
SfC. unto the said mansion-house, &c. called M. to go, pass, and repass
on foot, and with his and their cattle, waggons, carts, and carriages
every year at all times of the year at their will and pleasure, as be-
longing and appertaining to the said mansion-house, &c. and for en-
joying, receiving, and taking the profits thereof, as the said defendant
hath in his said plea lastly above pleaded alleged," and this, &c. ;
wherefore, &c.
F. BlILLER.
The Rejoinder commonly takes issue on the traverse of this public
right, and if there be a new assignment the plea is not guilty. See
other precedents, 9 Wentw. Index, Ixi.
Plea of right of way by j)rescription.
First plea — General Issue.
Second plea. After enumerating the trespasses, &c., proceed thus :
2 Chit. p. 621.
And the said C. D. further saith, that he the said C. D. long before private way
and at the said several times, when, &c. was and still is seised in his ^>' pv's'^'p-
, c c c J • ^ • 1 II I Hon by afree-
deraesne as oi tee, or and in a certain close, called , iioWcf.
contiguous and next adjoining to the said close, in which, &c. and
that he the said C. D. and all those whose estate he now hath, and at
the said several times when, &c. had of and in the said close called
from time whereof the memory of man is not to the
contrary, have had and used, and have been accustomed to have and
use, and of right ought to have had and used, and the said C. D. at
the said times, when, &c. of right ought to have had and used, and
still of right ought to have and use, a certain way for himself and
themselves, and his and their servants, farmers and tenants, occupiers
of the said close called , to pass and repass on foot and with
horses, mares, geldings, and other cattle, from a certain common
king's highway, in the parish of aforesaid, into, through,
over, and along the said close of the said A. B. called ,
in which, &c. unto and into the said close now of the said C. D. and
so from thence back again, unto, into, through and over and along the
said close of the said A. B. called , in which, &c,
unto and into the said common king's highway, at all times of the year,
at his and their free will and pleasure, as to the said close of the said
C. D. with the appurtenances belonging and ai)pertaining. And the
366 Appendix.
said C. D. being so seised of his said close, and also being in the pos-
session thereof, and having occasion to use the said way, did, with his
servants and horses, and mares, and geldings, and carriages, at the said
several times, when, &c. pass and repass, in, by, through and along the
said way from the said common king's highway, into, through, over,
and along the said close of the said A. B. called , in
which, &c. unto and into the said close now of the said C. D. and so
from thence back again, in, by, through, and along the said way, unto
and into the said common king's highway, using the said way there
for the purpose and on the occasion aforesaid, as he lawfully might for
the cause aforesaid, and in so doing, &c.
Justify the trespasses mentioned in the introductory part of the
plea.
See other precedents, 9 Wentw. Index Ivii. Ixiii. 3 Ld. Raym.
86, &c.
Replication and new assignment, that the trespass was committed
otherwise than in using the way. De injuria. Traverse of the right
of Way. 9 Wentw. 243.
Plea of the prescriptive right when defendant has closes on both
sides of the way. 3 Chit. 545.
Plea of Right of Way by a Copyholder.
See Chit, on Pleading, Vol. II. p. 623.
Plea of Right of a Way by non-existing Grant.
First plea — .General Issue.
Second plea — Prescriptive Right.
Third plea. 2 Chit. p. 624.
Right of way ^nj for ^ further plea in this behalf, as to the said several supposed
ing grant." ' trespasses in the introductory part of the said second plea mentioned,
and therein justified, the said C. D. by like leave, &c. says, {actio non,
as ante, 470, fourth precedent,) because he says that he the said C. D.
long before and at the said several times, when, &c. was and from
thence hitherto hath been and still is seised in his demesne as of fee
of and in the occupation of a certain close, situate, lying, and being
in the parish of aforesaid ; and the said C. D. further
saith, that long before any of the said several times, when, &c. to wit,
on, &c. at, &c. aforesaid, by a certain deed made between I, K. the
then owner of the said close, in which, &c. and who was then seised
thereof in his demesne as of fee, and L. M. who was then seised in his
demesne as of fee of the said close, now of the said C. D. and whose
estate therein he the said C. D. now hath, but which deed hath since
been lost and destroyed by accident, and therefore cannot be brought
into the said court here, and the date whereof is for that reason wholly
unknown to the said C. D., the said /. K. so then being owner of the
said close, in which, &c. did grant to the said L. M. so then being the
owner of the said close now of the said C. D. and to the heirs and
assigns of the said L. M. a certain way from a certain public king's
highway, in the parish aforesaid, into, through, over, and along the
Precedents of' Indictments, Pleadings, <^c. HGJ
said close, in which, 8:c. unto and into the said close now of the said
C. D. and so back again from the said last-mentioned close, into,
through, over, and along the said close, in which, &c. unto and into
the said public king's highway, to go, return, pass and repass on foot
by himself, and themselves, and his and their servants, and with horses,
mares, and geldings, carts and carriages, in and along the said last-men-
tioned way, every year, and at all times of the year, at his and their
free will and pleasure. By virtue of which said grant, the said C. 1).
before and at the said several times when, &c. was and still is entitled
to such way as last aforesaid ; and the said C. 1). being so seised and
entitled to such way as last aforesaid, he the said C. D. at the said se-
veral times when, &c. having occasion to use the said way, did with his
servants, and with his said horses, mares and geldings, carts and car-
riages, at the said several times when, &c. go, pass, and repass, in, by,
through, and along the said way from the said common king's highway,
into, through, over, and along the said close of the said A. B, in which,
&c. unto and into the said close now of the said C. I), and so from
thence back again, in, by, through, and along the said way, unto and
into the said common king's highway, using the said way there for the
purpose and on the occasion aforesaid, as he lawfully might for the
cause aforesaid, and in so doing, 8cc.
Justify the trespasses mentioned in the introductory part of the plea.
Plea of Right of Way from Necessity.
The safest mode of pleading this right is as a way by a non-existing
grant.
See 9 Wentw. Index, Iviii. Ixv.
The like by Grant.
See 9 Wentw. Index, Ivi. Ixii.
The like by Custom.
See 9 Wentw. Index, Ixv.
Right of Way by a Tenant.
See Chit. Vol. II. p. 627.
Plea by a Surveyor for digging Gravel.
See Chit. Vol. III. p. 550.
INDEX
TO
THE PRINCIPAL MATTERS.
A.
ABATEMENT of nuisance in roads. 52.
judgment of, when necessary, ib. 53.
the soil of private ways must not be meddled with if the owner
occasion the obstruction. 5Q.
aliter, if a stranger, ib.
pleas in. 231.
ABUTTAL. See Declaration.
ACCOUNTS. See Books, Trustees, Officers.
of surveyor must be verified before a justice. 150.
ACQUITTAL, record of, not evidence for parish. 273.
ACTION, to recover penalty for using supernumerary horses on the
highway, when to be brought. 31.
for obstructing the highway. 52, 53.
a private way. ib.
for a particular injury through an obstruction of the highway. 55.
but not without special damage. 54.
and ordinary diligence must have been used to avoid the obstruc-
tion. 55.
for penalties given by the highway act. 183.
of debt under turnpike act. 185.
ADDITIONAL TOLLS. See Tolls.
AD QUOD DAMNUM, writ of. 4, n.
has rather fallen into disuse. 9, n.
upon an appeal against an enclosure under, proof of notice must
be given. G9.
repair in cases of. 81.
when necessary to warrant the building of a bridge. 196. 217.
AFFIDAVIT, of consent to turnpike bill. 128.
not liable to stamp, ib.
what evidence necessary upon it. 129.
ALE-HOUSES, not allowed on bridges. 198.
ANNOYANCES, on turnpike roads. 40.
APPEAL, against diversion of highways. 61.
against order of justices, under 55 G. III. c. 6S, when. 62, 63.
See Notice.
under enclosure act. 68.
upon ad quod damnum. 60.
B B
370 Index to the
APPEAL,
against order of justices for a division of the repair of roads in
two parishes. 85.
against widening roads, not conclusive where there is a defect in
the order of justices. 120.
generally under highway act. 185.
under turnpike act. 186.
See Bridges.
APPENDANT WAYS. 3.
unalterably attached to the premises to which they belong. IS.
might pass without deed. ib.
cannot be turned into ways in gross. 16.
See Declaration.
APPOINTMENT, of turnpike officers. 140.
who may not be appointed. 141.
of highway surveyor. 142,
APPORTIONMENT. See Fines.
APPURTENANCES;
when ways will pass under that word. 17, 18.
construction of the word. 70. 75.
ASSESSMENT; when composition duty is insufficient. 103.
to pay for land taken as a pubHc highway. 117.
ASSIGNMENT. See Mortgages.
ASSISE; when it lies for obstructing a way. 56. 248.
ASSISTANT SURVEYOR. See Surveyor.
ASSUMPSIT, for the use of a way. 248.
AWARD, in cases of rights of way. 58.
when evidence. 272.
B.
BANKER, of turnpike trust is in the nature of a treasurer. 151, n.
BANKRUPTCY, disqualifies a turnpike trustee. 132.
BATHING ; no common-law right of. 24.
BOARDS, with names of towns, &c. on them, to be put up by turn-
pike trustees. 128.
BOND, by surveyor. See Surveyor.
BONDS, to recover money due from turnpike trusts to be valid, not-
withstanding repeal of acts. 175.
BOOKS, of proceedings of trustees of turnpike roads. 135.
orders of trustees, to be kept in a book. l."7.
of accounts, to be kept by clerk of trustees, ib.
by highway surveyor. 149.
See Mortgages.
BOROUGHS. See .Tuslices, Salary.
BOUGHS, near highways to be kept cut. 38.
BOUNDARIES, of parishes, not to be affected where there is a di-
vision of the repair of roads. 85.
stones denoting them. 128.
BOUNDARY STONES. 85.
BRIDGE, PUBLIC, a highway. 5. 195.
highway at the end of, who to repair. 78.
See Presentment.
Vrinripal Mailers. 371
BRIDGE, PUBLIC,
materials exempted from tolls. 165.
what a public bridge. 195.
by whom to be built. 196.
land, how to be got for that purpose, ib.
money how to be paid. ib.
must be well built. 197.
and in the highway, ih.
right of property in. ib.
tolls of, not rateable. 198.
the county to repair public bridges. 199.
who to repair. 200.
corporations. 201.
all public bridges repairable, ib.
repair of bridges newly built. 202.
exceptions to the general rule, which is binding on the county,
&c. 203.
when a special consideration should be shewn. 204.
an act of parliament will discharge the county, ib.
three hundred feet at the end of bridge. 205.
alienation of lands liable to repair will not discharge the pro-
prietor, ib.
what repairs to be done. 206.
widening bridges, ib.
act enabling justices to widen bridges docs not extend to such as
are repairable ratione tenurfe. 207.
materials for repair of, how procured. 208.
what to be done if the owner do not agree, ib.
of the costs. 209.
appeal. 210.
justices may contract for the repair of. ib.
when no presentment need be made. ib.
bridges of hundreds to be so repaired. 211.
surveyor to attend to the repair, ib.
of the presentment for insufficiency. 212. 214.
compositions for repair. 212.
money for repair to be paid out of the county rate. 213.
justices at large must join in the assessment, ib.
repair of private bridges, ib.
remedies for compelling the repair of. 214. 216.
certiorari taken away. 215.
fines, to whom paid, ib.
See Indictment.
contractor must proceed against the right person, for expence of
rebuilding. 259.
See Declaration, Evidence, Kcw trial. Trial.
BRIDGE MASTER ; liability of. 208.
cannot take any other than his accustomed fee. ib. n.
BRISTOL, excepted out of the highway act as to surveyor. 146.
BURNT CLAY, may be taken for repair by surveyor. 108.
v-J*
372 Index to the
CANAL COMPANIES, may reduce their tolls for carrying mate-
rials. 113.
proprietors not liable to certain forfeitures under the turnpike
act. 1.'54.
CARRIAGES affixed to other carriages, in what proportion liable to
toll. 158.
what excepted frorh having the wheels measured. 161.
of royal family exempted from toll. 165.
empty. 169.
CARRIERS; dogs of, to be fastened. 32.
CARTS, to be drawn on the highway, by how many horses. 29.
exceptions to the rule. ib.
weights of, on turnpike roads. 30.
weights additional, ib.
See Rail way. Train-road.
not to be left on highway. 40.
CATTLE, must not be allowed to linger on a highway or turnpike
road. 33. 42.
CENTRE OF THE ROAD ; what. 44, n.
CERTIFICATE, of abatement of nuisance. 53.
by justices, that old highway has been sold, &c. 60.
that new ways are in repair, under 55 G. 3. c. 68. p. 63.
of justices that way is in repair. 297.
production of a false certificate indictable, ib.
CERTIORARI, does not lie to remove orders of justices for dividing
the repair of roads in two parishes. 85,
nor to remove a presentment by a justice until traverse and
judgment. 88.
unless the obligation of repair comes in question. 89.
but it lies for the king. 88. n.
further matters concerning it. 186, 188.
taken away in cases of indictment for the non-repair of public
bridges. 215..
but county bridges only. ib.
and not from the prosecutor, ib.
CHILDREN, under thirteen, not to drive carts, &c. on a turnpike
road. 28.
CHURCH; indictment will lie for stopping way to. 52.
persons attending, exempted from toll. 166.
rule does not extend to meetings. 167.
CITIES. Sec Justices, Salary.
CLERGYMEN, unless specially exempted, must contribute to the
repair of the highways. 113.
exempted from toll when in the discharge of their duties. 166.
CLERK, of turnpike trust not to be treasurer also, nor surveyor.
141.
COLLECTOR, of turnpike trust, appointment of. 151.
what to be done if he refuse to give up toll-house. 152.
if he abscond, ib.
See Penalties, Tolls.
to attend to the weighing of carriages. 1 53.
Principal Mailers. 373
COLLECTOR,
protected in the exercise of his dut)\ 151.
cannot gain a settlement ns such. 15.5.
his appointment cannot be questioned if his rigiit be recog-
nized. 194.
not to sell liquor, &c. on bridges. 198.
See Evidence.
COMMONER, may compel the surveyor to fill up holes on his com-
mon dug for getting materials. 109.
COMMON LAND, not to be sold on a sale of an old highway. 60, n.
COMMON WAYS; how claimed. 14.
COMPENSATION MONEY. See Trustees.
COMPOSITION, for statute duty. 98.
duty of justice and surveyor respecting it. 99.
rate of. ib.
what to be done in case of non-payment. lOl.
See Penalties.
how new inhabitants may compound, ib,
surveyor to pay part to the turnpike treasurer, ib.
when insufficient, there may be an assessment. 105.
there must be a notice. 105.
on turnpike roads. 106,
for tolls. See Tolls.
for repair of bridges. 212.
CONFESSION AND AVOIDANCE. 260.
CONSENT. See Diversion. \
CONSIDERATION, necessary to enforce repair of highway by a
strange parish. 79.
but not when the way is in a particular district of the same pa-
rish, ib. 228. 275.
must be for repair ratione tenurae, 82.
CONSTABLE, a party grieved, so as to have costs under 5 W. &
M. 91.
CONTRA PACEM. See Indictment.
CONVEYANCES, not affected by repeal of turnpike act. 175.
CONVICTION, prior, record of. 175.
when evidence against parish. 275.
objections to. 297.
COPYHOLDER, plea of right of way by. 256.
evidence of such right. 287.
CORPORATIONS, may, by consent, agree to a division of the re-
pair of roads. 88.
may sell lands to turnpike trustees. 121.
See Justices, Salary.
when to repair bridges. 201.,
COSTS, of presentment for non-repair of highway. 89.
given, in what cases. 90.
awarded to justices, whether they present or indict, ib.
who the party grieved, so as to have costs under 5 W. & M. 91 .
of proceedings to take land to be a public highway. 117. 122.
See Tolls, Penalties.
of appeal. 187.
in civil actions regarding rights of way. 298.
judge's certificate. 501.
374 Index lu I he
COSTS,
staying proceedings till payment of costs in a fornjcr action. 301.
attachment for non-payment, against whom. ib.
COUNTY, to repair highway at the end of bridges. 78.
COUNTY RATE, liable to the repair of bridges. 213,
COVENANT, action of, against lessor for obstructing way. 58.
CREDITORS, in apportioning fines due to turnpike roads, tlieir se-
curities are to be considered. 95.
of turnpike trusts, to consent to the reduction of toll. 162.
may be paid off by lot. 177.
CROSS-WAY. 15.
CUSTOM ; way claimed by. 9. 23.
for inhabitants to be exempted from the tolls of a ferry. 218.
CYLINDRICAL WHEELS, favoured on turnpike roads. 1 60.
D.
DAMAGES, in general to be settled by the justice. 130.
DEBT; action of, under turnpike act. 185.
DECLARATIONS,
for disturbing rights of way, 240.
by reason of possession, ib.
licence, agreement, &c. 241.
termini, ib.
an interest should be stated. 242,
where the way is stated (way of abuttal), ib.
error in not setting out termini cured after verdict. 243.
the word " unto." ib.
" from." 244.
some title should be shewn. 245.
quality of the way to be stated, ib.
parish or vill. ib.
appendancy. 246.
of the particular disturbance, ib.
disturbance of private bridge. 247.
other declarations, ib.
covenant. 248.
assumpsit, ib.
assise and quod permittat, ib.
pleas to, should be special if they claim an easement. 249.
termini of public way need not be stated. 250.
but if stated, must be proved. 252.
plea of private way by prescription. 252.
" occupiers." 255.
appendancy. 255.
persons entitled, ib.
quantity of way. ib.
termini of private way nuist be set out. ib,
plea of right of way by copyholder. 256.
way how pleaded by ])articular tenant, 257.
way by grant, how pleaded, ib.
way of necessity how pleaded, ib.
way how pleaded by a parson. 259.
Principal Mailers, 375
DECLARATIONS,
way how denied. 259.
confession and avoidance. 260.
de injuria, &c. 261.
duplicity. 262.
DEDICATION, of way to the public, what may be said to be. 10.
it must be the act of the owner of the fee. 12.
whether there may be a partial dedication. 15. 3.~.
no doubt but that it may be definite as to time. ib.
DEEDS, execution of, on shewing title to a right of way, need not be
proved. 290.
DE INJURIA, &c. 261.
DE PONTE REPARANDO, writ of. 216.
DIRECTION-POSTS, to be put up by turnpike trustees. 128.
DISTRESS, of stray cattle on turnpike roads what wrongful. 45. 104.
for not paying statute duty assessment. 187.
for tolls : See Tolls, Penallies.
in computing the time of notice the distress is the real injury,
not the warrant. 187.
DISTRINGAS; writ of, to compel the repair of roads. 91.
DISTURBANCE, to rights of way, declaration for. 240.
DITCH ; what an encroachment on the highway. 43.
when to be cleansed by occupier. 82.
DIVERSION, of highways. 116.
of footway. 118.
statute extends to persons liable ratione tcnura;. ib.
with the consent of owner, ib,
which must be under his hand and seal. ib.
consent by agent insufficient. 1 19.
trustees of turnj)ike may alter roads. 120.
temporary roads, ib.
DOGS, of carriers, to be fastened. 52.
DRAINS, to be cleansed by occupier. 82.
inhabitants of a town when to repair. 83.
DRAY; weight of, in London, &c.
what allowed. 50.
DRIFT-WAY. 1. 26.
DRIVERS; on highways, punishment of, for misbehaviour. 26.45.
on turnpike roads the same. 27. 45.
one driver to two carts. 28.
refusing to give their name. ib.
punishment of, for using too many horses on the highway. 29.
must have notice of information o: action for the latter pe-
nalty. 51.
penalty on, for evading weighing machine. 16. 154.
penalty on, for not using a skid-j)an upon his wheel. 32.
for going out of rail-wa}', &'c. more than one hundred yards, ib.
for not having the nails of wheels countersunk, ib.
See Penalties.
E.
EJECTMENT, may be brought for an obstruction of the highway. 55.
376 Index to the
EJECTMENT,
may be maintained by one mortgagee. 176.
not for a way in gross. 283.
ELECTIONS ; county horses or carriages attending, exempted from
toll. 167.
EMPTY WAGGONS, exempted from toll. 169.
ENCLOSURE, of ground by the side of highways, consequence
of. 6, n,
liability to repair in consequence of by a private person. 80.
distinction where the enclosure happens by operation of law. 81.
evidence against persons liable to repair of way by reason of. 276.
ENCLOSURE ACTS; way claimed under. 9.
See Extinguishment.
commissioners under, may extinguish private as well as public
roads. 67.
See Appeal.
commissioners cannot compel the parish to repair private
ways. 115.
ENCROACHMENTS; what not an encroachment. 81.
indictment for. 234.
on highways forbidden. 43.
on turnpike roads, what. 44.
liability to repair in consequence of. 80.
ENFRANCHISEMENT, will not extinguish a way. 74.
ENROLMENT, of order of justices under 55 G. 3. c. 68. p. 62, n.
of certificate of justices that ways are in repair. 63.
ESTOPPEL. See Trustees.
EVADING TOLL; penalty for. 164.
EVIDENCE ; who good witnesses upon questions as to rights of
way. 263.
not inhabitants of parish. 264.
nor of hundred. 265.
prosecutor competent. 266.
inhabitants of counties competent upon questions concerning
bridges, ib.
when inhabitants may be admitted to give evidence. 267.
when the surveyor of the highways. iL
trustees of turnpike ways. il>.
and collectors, it?.
what proof necessary in actions against trustees, ib.
penalties on witnesses making default. 268.
books of turnpike trustees are evidence, il}.
what evidence against a parish for non-repair. 269.
prior convictions. 270.
reputation. 271.
award. 272.
defences by parish, ib.
record of acquittal and prior conviction. 273.
against a less district than a parish, ih.
against an individual liable rationc tenurte. 274.
defence to the indictment. 275.
against one liable by reason of enclosure. 276.
upon indic'tnicnts for obstructions, ib.
upon indictments for the non-repair of. 277.
Principal Matters. 377
EVIDENCE,
defences thereto. 277.
what under not guilty, ib,
alienation of estate of no avail. 279.
comuiisbioners of paving rates, 280.
to support public rights of way. ib.
proofs in opposition to this right. 281.
evidence to support private rights. 282.
appurtenant, ib.
the disturbance. 283.
evidence in case of the disturbance of ferries, ib.
to support the claim of a way in gross, ib.
hearsay. 284.
of occupation of tenant. 285.
termini must be proved as laid. 286.
what carriages, ib.
of copyholder's right of way. 287.
of a right by custom. 288.
of a tenant's right of way. ib.
of a right of way by grant. iH.
execution of deeds need not be proved on shewing title to a right
of way. 290.
to prove a right of way from necessity, ib.
evidence to rebut claims of rights of way. 291.
EXECUTORS; surveyor to account to, &c. 150.
EXEMPTIONS, from contributing to the repair of highways.
clergymen not. 113.
moneyers not. ib.
unless expressly excepted, ib.
a township may claim, ib.
so may a sergeant, &c. ib.
See Paving Rates.
of certain roads from highway and turnpike acts. 129, n.
from tolls: See Tolls.
EXPENCES, of defending an indictment for non-repair of parish. 89.
EXTINGUISHMENT, of old way, and new way arising from neces-
sity. 22.
of ways, by virtue of acts of parliament. 60.
by sale under acts of parliament, ib.
under the 55 G. 3. c. 68. p. 61,
notices. 62.
appeal, ib,
new ways must be put into repair prior to the extinguishment. 63.
or the validity of orders may be questioned. 61.
of way on a turnpike road. 63.
under enclosure acts. 67.
the public cannot prevent the extinguishment. 68.
towing-path cannot be stopped. 69.
of private ways. 70.
See Uniti/ of Fossessio7i.
necessity. 71.
private not merged in public way. 73.
how liy enfranchisement. 7 1.
not lost by non-user, unless there be an adverse possession. 7 1.
378 Index lu the
EXTRA HALF TOLLS. See Tolls.
FvVIR, after twenty years' usage, no nuisance. 49, 276.
FEES, what to be taken for surveyors' charge by magistrate's clerk.
150.
FEMES COVERTS may sell lands to turnpike trustees. 121.
FENCE on highway, or turnpike road, what an encroachment. 43, 44.
to be made by trustees after they take land for a road. 123.
FERRY. What a ferry. 217.
no action for not keeping a public boat. ib.
but an indictment will lie. ib.
there may be an action on the case for a disturbance of the
right, ib.
rights of owner of ferry, ib.
how destroyed, ib.
exemption from tolls of. 2 1 8.
not rateable, ib.
See Evidence.
FINE for non-repair of highway, to whom they are to be paid. 88, n.
92. 296.
of the fine in cases of non-repair of highways. 91.
only one fine upon the same indictment, ib.
apportionment of. 92.
to be applied towards the repair of the highway, ib.
See Rate.
apportionment of, between turnpike and highway. 94.
securities of creditors to be respected. 95.
what court to apportion it. ib.
See Trustees.
for non-repair of bridges, to whom paid, 215.
one fine only can be imposed. 216,
FOOTWAY. See Diversion.
FORMS OF PROCEEDINGS given by highway and turnpike acts
to be adhered to. 188.
FOUNDLING HOSPITAL ACT. Paving rates, lis.
FUNERALS. Persons attending, exempted from toll. 166.
G.
GARDEN not to be entered for the repair of highways by surveyors.
107. 110.
* nor for widening them. 116.
nor for making temporary roads. 120.
GATES on turnpike roads, without authority of parliament, may be
removed by order of magistrates. 39.
how to open. ib.
when a nuisance. 48.
trespass for setting them up improperly. 154, n.
when they may be removed, &c. 178.
GRADUATED STONES. 127.
GRANT. Way claimed by. 9.
Vrincipul Mallcr.\. 379
GRANT,
should be by deed. 15.
difference, however, between appendant ways, and those in
gross, in this respect, ib.
grantor of way cannot defeat his own licence. 16.
under what words in, a way will pass. 17.
of the wonls " heretofore used." ib.
of ways, shall be construed most strongly against the grantor. 18.
of ways, when presumed, ib.
of private way, user of under such grant. 54. 36,
of way by, how pleaded. 257.
evidence of such right. 288.
GUIDE POSTS. 127.
GUTTERS; inhabitants when to repair. 83.
HACKNEY COACHES, stand of, may be removed by commissioners
of pavements. 147, n.
H.
HAMLET ; liable to repair of ways. 80.
See Indictment. a
HEARSAY; 4iM j^,»^ ^^tn , cviUiMp4*M^
See Evidence. Z,
HEDGES adjoining turnpike roads and highways to be kept cut. 38,
time for cutting, ib. 39.
what an encroachment on the highway. 43.
turnpike roads. 44.
HERETOFORE USED; what way will pass under these words. 17.
HIGHWAY ; whether it must necessarily be a thoroughfare. 3.
is infinite, having no termini, ib. n.
what it is. ib.
outlets may be part of the highway. 4.
so turnpike roads, ib.
and navigable rivers, ib.
bridges. 5.
to whom the soil of it belongs, ib. 6.
trespass and ejectment may be maintained by the proprietor of
the soil. ib.
how claimed. 9.
what a dedication of. 10.
See Dedication.
punishment of drivers on, who misbehave. 26.
See Drivers.
there may be a limited right. 33.
obstructions in. 37.
See Obstructions.
encroachments on, forbidden. 43.
remedies for obstructing. 52.
making a new highwaj'. 60.
See Extinguishment.
stopping up old way. ib,
diverting and turning. 61.
See Repair.
380 Index lo Ihe
HIGHWAY,
at the end of a bridge to be repaired by the county. 78.
See Presentment, Width, Diversion.
what roads exempted from the operation of the highway act.
129. n.
See Trial, New Trial.
HORSES J how many to be used in a highway. 29. 1 7.5.
regulated by the breadth of the wheels of carts and waggons, lb.
increase of, when licensed by justices. 31.
See Information, Action, Justices.
of royal family exempted from toll. 165.
husbandry, exempted from toll. 166.
crossing turnpike road, &c. exempted. 167, 168.
HOUSE, when a nuisance to a highway. 48.
HUNDRED, liable to repair ways. 80.
bridges. See Bridges.
I.
INDICTMENT for obstructing the highway. 52.
to a church, ib.
not for stopping a private way. ib.
See Judgment, Abatement.
will not be quashed without the payment of a nominal fine for the
non-repair of a road. 91.
not against collector of turnpike-trust for misbehaviour. 153.
for neglecting a ferry. 217.
against a parish for non-repair of highway. 220.
venue, ib.
day. 221.
from time immemorial, ib.
termini, ib.
the nature of the way should be stated. 224,
length and breadth of way out of repair. 225.
how stated where the road lies in two parishes. 226.
way must be alleged to be within the parish, ib.
no person in particular need be named, ib.
contraj)acem. ib.
against a township. 227.
the prescriptive liability must be mentioned in this last case. ib.
against extra-parochial hamlet. 228.
against a party ratione tenurcB. 229, 230.
of the word " his." 229.
place of defendant's residence, ih.
presentment must allege the offence to have been committed
against the form of the statute. 230.
pleas of not guilty, by parish, 2.51.
inhabitants. 233.
for obstructions. 234.
'd ct armis. ih.
for encroachments and nuisances, ib.
for not performing statute duty. 235.
picas to the last-mentioned indictments, ib.
Principctl Mailers. 381
INDICTMENT,
for non-repair of bridges. 236.
a parish may be indicted for such non-repair. 238.
pleas thereto, a.^g.
See Evidence, New Trial, Trial.
INFORMATION for using supernumerary horses, when to be
brought, .31.
for obstructing the highway. 52.
for penalties under highway act. 183.
IN GROSS, ways may be. 3.
but they must be passed by deed. 15.
and cannot be granted over. IG.
extinguishment of such a way. 73,
must be alleged as certain. 242.
See Evidence.
INHABITANTS may prescribe for a way. 15.
of a town, when to repair drains, &c. 83.
may make bye-laws for the repair of highways. 86.
to keep up paved ways and footpaths within towns, &c. 94.
may sue for damages done to bridges. 199.
who, for the purpose of repairing bridges. 200.
custom that they may be exempted from the tolls of a ferry,
good. 218.
cannot be charged with repair by reason of tenure. 239.
not good witnesses in general. See Evidence.
INJUNCTION against stoj^ping private ways. 52. 58.
INSOLVENCY disqualifies a person from acting as a turnpike trustee.
132.
J.
JOINDER IN ACTION. 248.
JUDGMENT of abatement of nuisance. 55.
necessary only when nuisance continues. 52.
staying, on convictions or acquittals concerning rights of way.
294.
■what erroneous. 296.
JUSTICES may mitigate or abolish penalties for using supernumerary
horses on highways. 31.
upon complaint of surveyor, may order hedges, &c, to be cut. 38.
when they may order stray cattle to be sold. 42.
or remit the penalty for cattle straying. 43.
what they are to adjudge concerning the repairs of a road which
is in two parishes. 55.
their duty when the surveyor reports that a road is out of repair.
88.
See Presentment.
to assess fines for non-repair, and direct expenses of prosecution.
89.
to fix rates of composition for the repair of highways. 99.
may order the performance of statute duty in kind. 102.
what other regulations they may make on that subject, ib.
may order statute duty on turnpike roads. 104,
382 Index to the
JUSTICES,
may direct the diversion of ways, &c. 1 1 G.
but must not meddle with gardens, &c. l\6.
how they are to act. 1 1 7.
to order the erection of guide posts, 81c. 127.
of cities, to execute the highway act. 130.
to settle damages, ib.
may be joined with turnpike trustees. 131.
without taking oaths of quahfication. ib.
may not act if personally interested, ib,
to administer oaths, ib.
to appoint the surveyor of the ways. 143.
not bound to appoint a surveyor from the list returned. J 44,
but a surveyor must be appointed. 145.
to deliver printed abstracts of act to surveyor. 146.
what to do, if collectors of turnpike should abscond. 152.
to settle disputes as to tolls. 164.
when they may remove turnpike gates. 178.
how to proceed to adjudge penalties. 184.
how to proceed when land is wanted for the erection of a bridge.
196.
may contract for the repair of bridges. 210.
hundred bridges included. 211.
to appoint other justices to oversee such repair, ib.
L.
LAMPS at toll-houses. 179.
LANDLORD may use a way for various purposes. 35. 257.
LESSEE may prescribe for a way. 15.
LESSEES of tolls. See Tolls.
may occupy toll-houses. 179.
LICENCE revocable. 291.
LIME exempted from toll. 165. n.
LIMITATION OF ACTIONS under turnpike act. 185.
under the highway act. 193.
LISTS of persons liable to do statute duty. 105.
of persons to be returned for the ofRce of surveyor. 145.
what to be done, where there is no list. 144.
See Penalties.
LOT, creditors of turnpike trust to be paid off by. 177.
M.
MAILS exempted from toll. 166.
MANDAMUS for removing obstructions in the highway when to be
had, 52. 58.
to surveyor to collect a rate for reimbursing inhabitants. 92.
not the proper remedy when trustees erect a gate unlaw-
fully. 1 54, n.
when, however, it may issue. 16;?.
Principal Matters. 383
MANDAMUS,
to justices to compel them to impose a rate for the repair of a
bridge. 200.
MANURE, when exempted from toll. 165. 168. 173.
MARKET, after twenty years' user, no nuisance. 49. 276.
MASTERS IN CHANCERY not liable to paving rates. 1 13.
MATERIALS for the repair of the highway;
what the surveyor may take. 107.
how he is to be reimbursed if he be compelled to buy jna-
terials. 108.
surveyor may contract for labour, ib.
punishment of surveyor for selling materials. 109. 112.
or letting carts, &c. ih.
time for i-emoving them. 109.
surveyor to fence off and secure pits, holes, &c. ib.
from turnpike roads. 110.
surveyor may land them on inclosed grounds, tendering satisfac-
tion, &c. ilf.
notice of taking to owner. 111.
compensation money, how recovered. 112.
trustees may buy land for materials. 111.
or for repositories for materials. 112.
canal companies which carry them may reduce their tolls. 1 13.
for roads and bridges exempted from tolls. 165.
for the repair of bridges, how obtained. 208.
MEETINGS of trustees. See Trustees.
on emergencies. 1,"6.
MILESTONES ; punishment for injuring them. 46.
MILL, damaging, by getting materials. 1 10.
MINES, under highway, to whom they belong. 6.
when old highway is sold, reservation of. 60. 66.
damaging, by getting materials, penalty. 110.
MORTGAGEES to receive money for lands taken by turnpike trustees.
123, n.
justices may act as turnpike trustees although they be mortgagees.
131.
generally, not disqualified to be turnpike trustees. 133,
to account. 176.
one may bring ejectment, ib.
but he must account to the other mortgagees for tolls. 177.
may be paid off, and how. ib.
keeping unlawful possession of toll gate. ib.
MORTGAGES of tolls, how to be effected. 174.
copies of, to be entered in a book. ib.
may be assigned. 175.
to be valid notwithstanding repeal of acts, ib,
renewal of. 176.
recovery of subscriptions, ib.
mortgagees to account, ib.
N.
NAILS of wheels to be counter-sunk. 32.
384 Index to the
. NAMES OF OWNERS to be painted on carts, &c. 27, n.
of towns, &c. to be painted on boards, set up by trustees of turn-
pike. 128,
NAVIGABLE RIVER; custom to have a towing path along the
bank of. 23.
See River.
NECESSITY, way of. 9.
instances of such a way. 20.
unity of possession the foundation of the right. 21.
it is a way by grant, ib.
must be a convenient way. 22.
said to be coeval with the necessity which creates it, sed qu ? 23.
72.
may be used extra v'lam. 51.
not extinguished by unity of possession. 71.
how pleaded. 257.
how proved in evidence. 290.
NEW TRIAL, when it may be had. 293. 296.
NON-USER of a way not an extinguishment. 74.
NOT GUILTY, by parish to an indictment for non-repair. 231.
to indictments for non-repair of bridges. 277.
NOTICE of appeal under 55 G. 3. c. 68. what it must state. 64.
of time of compounding for statute duty. 101.
of assessment, when insufficient. 108.
of laying lists before justices. 105.
for taking materials, ill.
of meetings of trustees. 135,136.
of letting tolls. 155.
for the reduction of tolls. 162.
of paying off turnpike creditors. 177.
of action under highway act. 183.
under turnpike act. 185.
of appeal against conviction. 186.
what notice against turnpike officers good; what not. 192.
by justices of their intention to contract for the repair of bridges.
211.
NOTICES for stopping up highways under 55 G. 3. c. 68. pp. 62. 65.
of special sessions. 65.
NUISANCE ; no time will legitimate it. 48.
indictment for. 234.
O.
OATHS of qualification as turnpike trustees, need not be taken by
justices. 131.
justices may administer them. ib. 183.
OBSTRUCTIONS in highway and turnpike roads, as trees. 37.
hedges and boughs. 38.
gates. 39. 48.
stones, &c. 39.
waggons, &c. 40.
pits, &c. ib.
windmills. 42.
wall. 48.
I
Principal Matters. 385
OBSTRUCTIONS,
house. 48.
by suffering waggons to stand in the public street. 47.
a fair or market acquiesced in for twenty years, no nuisance. 49.
of private ways. ib.
remedies for obstructions. 52.
indictment for. 234.
declaration for. 247.
evidence on indictments for. 276.
OCCUPIER of land, when to remove trees, &c. 57.
to prune hedges, &c. 38.
his duty respecting gates. 39.
when to cleanse ditches, &c, 82.
See Declaration.
liable for repair in the first instance. 274.
OFFICERS of the turnpike trusts to account upon demand. 139.
proceedings for neglect, ib.
may apprehend persons offending against the turnpike act. 1 40.
appointment of. ib,
salary of. 141.
to hold their situations notwithstanding new acts. ib.
OFFICERS' HORSES, when exempted from toll. 167.
ORDER of justices under 55 G. 3. c. 68. 761.
enrolment of. 62, n.
must be made at some special sessions. 64.
extends to the stopping, as well as diversion of ways. ib.
ORDNANCE STORES, carriages conveying, exempted from toll.
167. 173.
OVERWEIGHT, additional tolls for. 163.
exemptions from such toljs. 173.
OWNER of carts, &c. penalty on, for the misbehaviour of his sei*vant.
26. 45.
for using too many horses on the highway. 29.
must have notice of information, or action for the latter penalty.
3*1.
penalty on, for evading weighing machine, ib.
for driving carts out of rail-way, &c. 32.
for not having nails of wheels properly countersunk, ib.
of land, when to remove trees, &c. 37.
of cattle lingering on turnpike roads, penalty upon. 42,
See Materials.
to be indemnified for ground taken to widen roads. 116.
See Penalties.
OXEN, two, considered as one horse in the highway and turnpike
acts. 31.
PARISH. See Repair.
may be indicted for the non-repair of a bridge. 238.
See Evidence.
PAVED WAYS, to be kept up in general at the charge of inhabitants.
94.
c c
386 Index lo the
PAVING ACTS, commissioners under, not liable for consequential
damage. 190.
PAVING RATES, exemption from. 113, &c.
PAVIOURS, action against. 101.
PENALTIES on owners and drivers of carriages, &c., for misbehaviour
on highways or turnpike roads. 26, &c. 45.
for having too many horses on the highway. 29.
evading weighing machine. 31.
not using skid pans. 52.
driving carts, &c. from rail-ways for more than 100 yards on
the turnpike road. ib.
not having nails of wheels properly countersunk, ib.
respecting dogs of carriers, ib.
on surveyor for not giving notice to remove trees, &c. 37.
occupier not pruning hedges, &c. 38.
having his gate properly hung. 39.
for laying stones, &c. in highway, ib.
leaving waggons, &c. in highway. 40.
other annoyances, ib.
riding on the way. 42.
suffering cattle to linger on turnpike road. ib.
encroaching on the highway, 44.
breaking up the same. ib.
encroachments on turnpike roads. 45.
persons throwing down posts on highways, &c. ib.
injuring tables of tolls, &c. 46.
on occupier for not cleansing his ditches. 83.
for not performing statute duty. 96, 97. 105.
how applied. 98. 106.
on surveyor for not delivering lists of persons liable, ib.
filling up holes, &c. 109.
for damaging mills, &c. in getting materials. 1 10.
taking away materials. 111.
pulling up stakes. 1 20.
on surveyor for not erecting guide posts. 128.
for defacing mile-stones, &c. ib.
on turnpike trustees acting before they take the oath of qualifi-
cation. 131,
trustees who violate the act. 133.
exceptions. 134.
clerk of trustees for not allowing the use of books. 137.
officers refusing to produce books of account. 138.
clerk of trustees for not making out a statement of the re-
venue of the trust, ib.
clerk acting as treasurer or surveyor, or vice versa. 141.
for refusing the office of survc3'or. 144.
on constables, &c. for not returning lists to justices of persons fit
to be surve3ors. ib.
persons neglecting to cut their hedges after orders of surveyor.
i47.
assistant surveyor for neglect of his duty. 148.
same as to the surveyor, ib. 150.
driver refusing to go back to tlie weighing engine. 1 50.
magistrates' clerk for taking more fees tiian are right, ib.
Principal Matters. 387
PENALTIES
on collector of turnpike for misconduct in his ofdce. 152.
for not attendinsf to the weighing of carriages. 154.
driver and owners of carriages for not having carriages weighed,
ib.
persons resisting collector, ib,
farmers, &c. of tolls for taking a greater toll than the legal
toll. 156.
persons resisting the measurement of wheels. IGl.
collector neglecting measurement, ib,
for evading toll. 164.
on collectors refusing to give tickets for empty carriages. 169.
persons claiming exemptions from toll without being entitled.
174.
mortgagees not accounting. 176.
for injuring lamps at toll-houses. 179.
general; under highway act. 181.
how recovered, and to whom paid. 182.
costs and distress. i6.
under turnpike acts. 184.
costs. 185.
under former acts. ib.
on justices respecting appeal. 186.
do not take away the right of action. 194.
on persons selling wine, &c. 198.
sheriffs, &c. making default. 209.
respecting bridges. 216.
on witnesses making default. 268.
PLOUGH; penalty for leaving it on the highway. 40.
POST-CHAISES, going or returning empty: when exempted from toll.
169.
Cases on the subject. 170, &c.
POSTS, &c. on highways.
penalty for injuring them. 45,
POUiND-BREACH; punishment for. 43.
PRESCRIPTION; ways claimed by. 9. 14, 15. 21.
one cannot be alleged against another. 59.
See Declaration.
PRESENTMENT of highways by justices. 88.
no certiorari for the defendants, until traverse and judgment, ib.
imless the obligation to repair come in question. 89.
may be of highways, bridges, &c. 88.
may be traversed. 89.
See Costs, Expenses, Bridges, Indictment.
PRESUMFITON of grants of rights of way; when. 18.
PURPRESTURE. 4.5.
Q.
QUAKERS; to affirm as turnpike trustees. 131.
QUALIFICATION ; oath of by turnpike trustees, ib.
nature of. 132.
existing, not altered by act of 1822. ih.
cc2
388 Index to the
QUALIFICATION.
when lost, trustees become incapacitated. 132.
QUARRIES; repair of highways. 107.
bridges. 208.
QUOD PERMTTTAT; writ of, obsolete, 57. 248.
QUO WARRANTO. To impeach the franchise of a ferry. 217.
R.
RAIL-WAY; carts, &c. must not leave it for more than 100 yards.
32.
RATE ; to reimburse ; when one or two inhabitants have been levied
upon for non-rejjair. 92.
application for reimbursement should be made within a reason-
able time. 93.
parochial; not on tolls or toll-houses. 114.
not on ferry. 218.
way-leave, when rateable. 219.
RATIONS TENURiE.
See Evidence, Repair, Consideration, Indictment.
persons liable, may contract with turnpike trustees for repair. 94.
liability, not destroyed by an alteration in the line of road, ib,
RECTOR entitled to a way.
to take his tithes home. 21.
what way he is to use. 35.
exempted from toll. 166.
how he may plead his waj'. 259.
REDUCTION OF TOLLS.
See Tolls.
RENEWAL of mortgages on turnpike trusts. 1 76.
RENT cannot issue out of a way as such. 59.
REPAIR of ways;
parish to repair of common right. 76.
township, when. ib. 78.
lands to continue liable to repair, although aliened. 77.
exceptions to the rule as to parish. 78.
See County, Bridge.
parish when to prove that other persons are liable. 79.
when the road is within another parish, a consideration must be
shewn, ib.
See Consideration.
vills, hundreds, and hamlets are liable. 80.
a private person may be liable rationc tenures, bj' inclosure and
encroachment, ib.
See Inclosure, Encroachment.
what road passengers are to make in cases of inclosure. 8 1.
See Ad (inod Damnum.
the occupier liable to the repair. 82.
of roads in two parishes; how done. 84.
corporations may, by consent, avail themselves of the statutory
provision on the subject. 85,
See Boundaries, Appeal, Certiorari,
of road in two counties ; the whole parish liable. 86.
Principal Mailers. 380
i
REPAIR ;
what ways to be repaired. 86.
wiien the parish must acquiesce, ib.
what state of repair the roads should undergo. 87.
See Presentment, Costs, Fines.
letting of lands for the repair of highways. 9;J.
of turnpike roads, ib.
See Statute Duty, JMaterinls,
of private ways ; grantor most frequently chargeable, l M.
commissioners of inclosure cannot compel the parish to
repair them. 1 15.
of bridges. See Bridges.
Sec Indietmcnt.
REPEAL OF ACTS, not to affect turnpike securities. 175.
REPOSITORIES for materials for repair of roads. 112.
REPUTATION j when to be received as evidence against a parish
indicted for non-repair. 271.
REVIVAL of ways. 74.
RICHMOND PARK, foot-way through. 188, n.
RIDING, &c. upon the footway near the turnpike road. 42.
penalty for. ib.
RIVER, NAVIGABLE, a highway. 42.
custom to have a towing path along the banks of. 23.
this right to a towing path does not exist at couunon law. 24.
S.
SALARY of officers of turnpike trusts. 141.
of surveyor of highways. 144.
how raised. 145.
justices of cities, &c. not to allow salary to surveyor without
assembling the parish. 146
SALE ; of old highways. 60.
which are sometimes subject to a right of way. ib.
mone}', how applied, ib.
satisfaction to owner for land by the side of roads. 61, n.
upon the diverting and turning of a highway. 61.
under the 55 Geo. III. c. 68. \b.
order of justices thereupon, ib.
of lands to turnpike trustees, who competent to sell. 121.
of lands which they do not want. 126.
SCAVENGERS' RATE. 114.
SCIRE FACIAS, to impeach the franchise of a ferry. 217.
SECURITY, to be taken by trustees from their treasurer. 141.
or from other officers, ib.
SETTLEMENT cannot be gained by toll-gate keeper. 155.
SKID PANS on turnpike-ro"ads. 52.
SOLDIERS' MORSES; when exempted from toll. 167.
SPECIAL DAMAGE, under highway act. 183.
under turnpike act. 185.
SPECIAL SESSIONS; notices of. 65. 150.
have no original jurisdiction as to surveyors' accounts. 150.
390 Inde.v to the
STAGE-COACHES; standing in the street, when a nuisance. 47.
when exempted from a second toll. 170.
STATUTE-DUTY. See Indictment. Persons liable. 95.
their proportions, ib.
six days. ib.
See Conqjosition.
by order of justices may be performed in kind. 102.
See Justices.
time when no duty to be performed. 103.
on turnpike roads. 104.
of the lists of persons liable. 105.
may be dispensed with. 106.
See Exem2:itions.
STATUTE, creating an exemption from repair ; all supposed to have
cognizance of it. 79.
STATUTES.
The acts of parliament now in force for the regulation of highways,
bridges, and turnpike roads, are affixed to the work, with proper references
to the paging.
Other statutes noticed arc the fullowing :
Hen. 8. 57. c. 8. 234.
\Vm. & Mary 5. c. 11. s. S. 90.
Geo. 5. 13. c. 84. [old turnpike act repealed]. 95.
s. 33. p. 77.
34. c. 96. [Foundling Hospital paving act]. 113.
42. c. 90. s. 174. ib.
c. 109. [general inclosure act].
% s. 8. 67, 68.
s. 10. 67.
s. 11. ib.
46. c. 46. [local act].
54. c. 170. s. 5. 155.
59. c. 30. [Shrewsbury roads to Bangor ferry, &c.] 129, n.
c. 48. [the same], ib.
Geo. 4. 7. c. 64. s. 20. 227. 234.
STAYING JUDGMENT. See Judgment.
STORES, public carriages conveying, exenijitcd from toll. 167. 173.
STREET; dedication of to the public. 13.
SUBSCRIPTION. See Mortgages.
SUFFERANCE, way by. 291.
SURVEYOR, to give notice to remove trees. 37.
or remove them himself. 38.
to see that hedges, &c. are cut. ib.
to see that gates open properly on turn|)ike roads. 39.
after notice, to dispose of stones, &c. placed improperly in the
highway. 40.
of turnpike, to remove annoyances, ib.
may turn water-courses, ib.
his duty respecting them. 83.
how indenmificd. 40,
ills duty when cattle arc found lingering on turnpike roads. 42.
his duty in preventing encroachment. 44.
may not interfere with private ferry, ib. n.
his duty respecting town drains. 84.
Principal Mailers. 391
SURVEYOR.
what he is to do where the road extends into two parishes. 84.
his duty to compel repair. 87.
as to statute duty. 95, ct scq.
maj' compel composition. 98.
but he must take it equally. 99.
he must give notice of the time for compounding. 101.
to pay part of composition to the turnpike surveyor, ib.
See Penalties, Materials.
to widen highways. 116.
to erect guide-posts, &c. 127.
how reimbursed, 128.
surveyor and clerk of turnpike trust to be separate persons. 141.
appointment of highway surveyor. 142. 14G.
See Salary.
assistant surveyor, when to be appointed. 145.
salaried, when to give a bond. ib.
death of, new appointment. 146.
to pay Gd. for his charge. 147.
duty of surveyor, ib.
assistant surveyor. 148.
of turnpike ; his duty as to weighing machines, ib.
not personally answerable, ib.
to collect the assessments, &c. 149.
to keep accounts of tools, &c. ib.
to produce books, and verify accounts, ib.
accounts may be disallowed, ib.
to deliver duplicate of books to the succeeding surveyor, ib.
his executors to account, &c. 150.
when exempted from toll. 165.
of county, to superintend the erection of public bridges. 197.
his duty when bridges are to be widened. 207.
how to get materials for the repair of bridges. 208.
property of materials vested in him. ib.
appointed to superintend the repair of bridges. 211.
See Evidence.
SUSPENSION of rights of way. 74.
TENDER OF AMENDS ;
under the highway act. 183.
under the turnpike act. 185.
TENEMENT, a way will not pass under that word, 17.
TERMINI. See Indictment, Declaration, Evidence.
THOROUGHFARE, whether every highway is. 3.
TICKETS, toll. See Tolls.
TITHES ; wav enjoyed for the purpose of taking, how proved. 190.
TOLL-GATE 'keeper cannot gain a settlement. 155.
bridge-tolls not within the prohibition, ib.
TOLL-HOUSE ; collector refusing to give up. 152.
name of collector in front of. ib.
not rateable. 164.
See Mortgages, Trustees.
392 Index to the
TOLL-HOUSE;
may be sold if useless. 179.
lessees of tolls may occupy them. ib.
when they may be ejected. 180.
TOLLS, may be reduced by canal companies, when materials are car-
ried. 113.
when to be collected. 153.
what may be distrained for. ib.
how to be let. 155. 157.
mode of bidding. 156.
trustees may bid. ib.
no longer lease than for three years, ib.
how to be collected. 157.
of the tickets, ib.
lessees may appoint persons to receive tolls. 158.
re-letting tolls, ib.
composition for. ib.
"what carriages liable to. See Carriages.
of extra half-tolls. 159,160.
deduction of. 160. 162.
but not without the consent of creditors, ib.
cylindrical wheels pay less. ib.
may be advanced again. 1 62.
both reduction and advance to be proportionate, ib.
reduction of additional toils, ib.
additional tolls for over-weight. 163.
for watering roads, ib.
in general not rateable. 164.
evading toll. See Penalties.
justices to settle disputes as to tolls. 164.
to award costs, &c. 165.
exemptions from. ib.
second tolls on carriages and horses ; cases on that subject. 1 70,
&c.
exemptions from tolls for overweight. 173.
See Mortgages.
of bridges not rateable. 198.
of ferry. See Ferry.
TOLL-TABLES, punishment for injuring them. 46.
TOLL-THOROUGH; the law concerning it. 180, &c.
TOLL-TRAVERSE for passing over a manor. 4.
what. 180, &c.
TOWLXG-PATHS not public rights. 24.
connot be used extra viam. 51.
cannot be extinguished like roads under an enclosure act. 69.
TOWNSHIP. See Repair, Indictment, Evidence.
TRAM-ROAD, carts, &c. used on, not to be more than 100 yards
along the turnpike road. 32.
TRAVERSE. See Presentment.
in pleading to be tendered. 259.
TREASURER of turnpikes. See Surveyor.
reimbursement for compensation money. 112.
treasurer and clerk of turnpike truit to be scparatc^persons. 141.
security required from, ib, 151.
Sec liunlicr.
Principal Matters. 393
TREES on highway, to whom they belong. 6.
when an obstruction in highway or turnpike road. 37, 38.
exceptions. 38.
time for felling, ib.
TRESPASS for obstructing a way vi el armis. 58.
TRIAL for non-repair of ways and bridges, where to be had. 292,
of private rights. 293.
See New Trial.
TRUSTEE, grant of way by, how construed. 20.
TRUSTEES of turnpike roads, may order skid-pans or slippers. 32.
may order encroachments to be removed. 44.
have a discretion to stop roads. 66.
their consent required under enclosure acts. 67.
with whom they may contract for repair. 93.
See Materials, Diversion.
may purchase lands for the improvement of roads. 121.
what course they are to pursue if persons refuse to sell lands, ib,
may inflict fines. 122.
may fence roads. 123.
to whom they are to pay the compensation money for land. ib.
&c.
when party is not to be found, what to be done. 124, n.
into what funds to be paid. 124.
what to be done in cases of a refusal to accept the money, or
want of title, &c. 125.
person in possession entitled prima facie. 126.
when they are to pay the expenses of conveyance, lb.
may sell land which they shall not want. ib.
the course to be then pursued, ib.
money how applied. 127.
of their oaths of qualification. 131.
omission to take the oaths, will not make theii" acts Invalid, ib.
See Qualification.
what persons incompetent. 133.
orders of disqualified persons how valid, ib.
appointment of new. 135.
meetings of, how held. ib.
See Books.
meetings on emergencies. 136.
general annual meeting, ib.
to audit accounts. 138.
See Security.
may cause cranes, &c. to be erected. 142.
See Tolls, Mortgages.
may pay off their creditors. 177.
are not personably liable, ib. 189.
exception. 189.
doctrine of estoppel, when it does not affect them. 177.
their power over turnpike gates and toll-houses. 178.
toll-houses, &c. vested in them. 179.
when they may regain possession of toll-houses. 180.
actions against, not to abate by death of trustee. 189.
not in general liable for consequential damage if they have acted
bona fide, ib.
394 Index to the
TRUSTEES.
actions against the whole body of trustees. 191.
may direct the bringing of prosecutions. 194.
cannot be indicted for non-repair. 2f50.
See Evidence.
TURNPIKE-BILL. See Affidavit.
TURNPIKE-GATES, punishment for damaging them. 46. See
Gates.
TURNPIKE-ROADS.
drivers on, subject to penalties for misbehaviour. 27.
children under thirteen not to drive carts, &c. 28.
See Obstructions, Annoyances, Extinguishment, Repair, Surveyor,
Collector, Treasurer.
what roads exempted from turnpike act. 129, n.
revenue of, to be stated. 138.
V.
VAGRANTS, carriages conveying, exempted from tolls. 1 66.
VENUE. See Indictment, Trial.
VI ET ARMIS. 234.
VILL, liable to repair. 80.
U.
UNITY OF POSSESSION J the foundation of a claim of ways
from necessity. 21.
extinguishment of way by. 70.
USAGE, of towing paths. 24,
USER, adverse of ways for twenty years, sufficient for the presump-
tion of a grant. 19.
of highway, with how many horses. 29. ^ee Horses.
of private ways. 33.
must be at seasonable times. 35.
by landlord, ib.
when a person may go extra viam. 50.
distinction in this respect between public and private ways. ib.
exception of a way of necessity. 51.
W.
WAGGONS, to be drawn upon highways, by how many horses. 29.
exceptions to the rule. ib.
weights on turnpike roads. 30.
of additional weights, ib.
Sec Rail-ivay, Tram-road.
must not be left in highway. 40,
when a nuisance ii\ the public street. 4G.
WAGGON-WAYS. 9, n. 17. 3G.
WALL, when a nuisance on highway. 48.
WATERCOURSES on turnpike roads to be turned by surveyor. 40.
Principal Mailers. 395
WATERING ROADS. 165.
WAY, RIGHT OF.
an incorporeal hereditament. 2.
how claimed. 9. 14.
what way. 22.
the ancient way. ib.
claim of two ways inconsistent, cannot be supported. 25.
user of. 33.
limited, as for agricultural purposes. 34.
See Hector, User.
obstruction of. 49.
as digging trenches, &c. ib.
cannot be used extra viam. 50.
except it be a way of necessity. 51,
WAY LEAVE. 16.
when rateable. 219.
WAYS.
division of. 1. 3.
how claimed. 9.
common ways. 14.
user of. 26. See User.
obstruction of. 37. See Obstruction.
extinguishment of. 60. See Extinguishment.
suspension of. 74.
revival of. ih.
See Repair, Indictment.
WEIGHING MACHINE.
penalty for evading. 30.
may be erected by trustees of turnpike road. 142.
See Surveyor.
WEIGHI'S allowable upon turnpike roads. 29.
table of. 30.
WEST LONDON WATER WORKS COMPANY, action against.
191.
WHEELS, breadth of, regulates the number of horses to draw carts
and waggons on the highway. 29. 174.
nails of, how to be countersunk. 32.
cylindrical, favoured on turnpike roads. 160.
measurement of. 161. See Penalties,
what carriages excepted, ib.
WIDENING BRIDGES. See Bridges.
WIDTH. See Diversion.
WINDMILLS, forbidden within 200 yards of turnpike road. 42.
WITNESS, under highway act. 183. See Evidence.
WRECK, persons entitled to, must have from necessity, a way to
it. 21.
how such a way is to be proved. 290.
Y.
YEOMANRY HORSES, when exempted from toll. 167.
G. VS'ooilfall, Printer, Angel Court, Skinner Street, London.
By the same Author,
A TREATISE
ov
THE LAW
OF '
RIGHTS CONNECTED WITH
WATER,
INCLUDINO
RIGHTS IN THE SEA, AND IN NAVIGABLE RIVERS f
RIGHTS OF CANAL AND OTHER SUCH COMPANIES;
FISHERIES, WATERCOURSES, AND MILLS :
TOGETHER WITH
THE LAW OF SEWERS:
WILL SHORTLY BE PUBLISHED.
LONDON :
SAUNDERS AND BENNING, LAW BOOKSELLERS, (SUCCESSORS TO
J. BUTTERWORTH AND SON,) 43, FLEET STREET.
•<■
cirHOOL OF LAW LIBRARY
UNIVERSITY OF CALIFORNIA
LOS ANGELES
UCSOUTHtHf.Hi^.'V.;., ilBRARVrAni'TY
^
AA 000 819 209 8