260. Indictment for obstructing a public street.

(Commencement as in pr. 258, to the *.) Did put and place three empty drays, and did then, and on the said other days and times, there unlawfully and injuriously permit and suffer the said empty drays respectively to be and remain in the king's common highway aforesaid for the space of divers hours, to wit, for the space of five hours, on each of the said days, whereby the king's common highway aforesaid then, and on the said other days, for and during all the said times on each of those days respectively, was obstructed and straightened.) Proceed as in pr. 258, from the **.)

261. Indictment for obstructing a common passage.

(Commencement as in pr. 1.) In a certain passage and common footway there, called unlawfully and injuriously did dig and make, and cause to be dug and made, a certain hole, containing in length twelve feet, in breadth six feet, and in depth six feet; and that the said A. B. on, &c. with force and arms, at, &c. to wit, in the same passage and common footway, unlawfully and injuriously did erect, put, and place, and cause to be erected, put, and placed, a certain wooden cistern, containing in length five feet, and in breadth twenty inches; and that the said A. B. the said hole, so as aforesaid dug and made, and also the said wooden cistern, so as aforesaid erected, put, and placed, from the day and year aforesaid, until the day of the taking of this inquisition, with force and arms, at, &c. unlawfully and injuriously did continue, and yet doth continue; by means whereof the same passage and common footway, for and during the whole time aforesaid, was so obstructed, and was, and yet is, so daugerous, that the liege subjects of our said lord the king through the same passage and common footway could not, nor yet can, go, return, pass, and repass, so freely and safely as they ought and were wont and accustomed to do, and still of right ought to do, to the great damage

and common nuisance of all the liege subjects of our said lord the king through the same pasage and common footway going, returning, passing, and repassing, and against the peace, &c.

262. Indictment at common law against a sabbathbreaker, and profaner of the Lord's day, in keeping open shop.

That A. B. late of, &c. labourer, on, &c. and from thence until the taking of this inquisition, at, &c. was, and yet is, a common sabbath breaker, and profaner of the Lord's day, commonly called Sunday; and that the said A. B. on, &c. being the Lord's day, and on divers other days and times, being the Lord's days, during the time aforesaid, at, &c. in a certain place there, called Clare-market, did keep a common, public, and open shop, and in the same shop did then, and on the said other days and times, being the Lord's days, there openly and publicly sell and expose to sale fleshmeat to divers persons, to the jurors aforesaid as yet unknown, to the common nuisance of all the liege subjects of our said the king, and against the peace (a), &c.

(a) In R. v. Brotherton, Str. 708. the court refused to quash an indictment of this kind, which did not conclude against the form of the stat. but judg

ment was afterwards given for the defendant. See the stat. 29 G. 2. c. 7. 1 Haw. c. 6. s. 12. 3 East. P. C. 5.

263. Indictment against the inhabitants of a parish for not repairing a common highway.

That on, &c. there was (c), and from thence hitherto hath been, and still is, a certain common king's highway (d), leading from A. (e), in the county of C. towards and unto D. in the said county, for all the liege subjects 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 highway, situate, lying, and being in the parish of F. (f), in the

(c) In the older precedents it is usually stated from time whereof, &c. but this is unnecessary. 3 T. R. 265. 2 Saund. 158. b. n. 4.

(d) Every way which is common to all the king's subjects, is properly termed an highway, so that even a river which is common to all, may be called an highway. 1 Haw. c. 76, s. 1. Co. Litt. 56. Str. 54. 10 Mod. 383.

And the road, &c. may be stated generally to be a common king's highway, without saying whether for carts or for foot passengers only; see 2 Saund. 158. n. 8. Trem. 201. 205. Cro. Car. 266. 1 Salk. 359.

A description, that an highway leads between A. and B. excludes both A. and B.; so does an averment that it leads from A. to B. see p. 61. 179. 2 Saund. 158. n. 6. Halsey's case, Latch. 183. Cas. temp. Hard. 105. R. v. All Saints and St. Mary, 4 Burr. 2090. R. v. Harrow, 1 Haw. 79. s. 86.

But in pleading an highway, it is unnecessary to set out the termini, or to allege that it leads from one place to another; it is sufficient to aver that it is an highway. R. v. Thomson, cited Andr. 145. R. v. Hamoud, 10 Mod. 382. R. v. Haddock, Andr. 145. And see 1 H. B. 351. Latch. 183. Pal. 389. 2 Roll. Rep. 412.

(f) In an indictment against a parish, it must be expressly averred that the road out of repair lies within the parish. Cowp. 3. R. v. Hartford, 2 Saund. 158. n. 5. supra, p. 179. In every indictment against a parish three averments are essential: 1. That the road is an highway. 2. That it is out of repair.

county of M. containing in length (g), 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 reparation 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 common 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

3. That it is situated in the parish.

A parish is bound of common right to the repair of all highways within it. See 1 Str. 181. R. v. the inhabitants of Norwich, Roll. Abr. 890. 1 Haw. c. 76. s. 5. But the whole of the parish must be indicted, since no sub-division can be liable, unless by virtue of a prescription, custom, or legislative provision; see note below. And if the parish be situate partly in each of two counties, still the indictment must charge the whole parish, and not such part as is within one county only. R. v. Clifton, 5 T. R. 498. contrary to what had been decided in R. v. Weston Under Penyard, 4 Burr. 2507.

So a presentment against a subdivision of a parish must shew the obligation of the inhabitants to repair, 2 T. R. 513. Sty. 163. Andr. 276.

(g) As to averring the extent of the nuisance, see p. 180; indictments for want of such averments have been holden to be defective, 1 Haw. c. 76. s. 88. Cas. Temp. Hardwicke, 106.; but qu. whether such an objection would now prevail, for the reason stated, p. 180. and see 2 Saund. 158. note 7. and Say. 301. where it was holden, that an indictment alleging that an highway and bridge were in a ruinous condition was not bad, though the extent was not set out.

An indictment for not repairing one side of a road ought to state that the defendant is bound to repair ad filum viæ; and it appears to be insufficient to allege that a certain part, setting out the length and half the breadth, is out of repair, and that the defendant is bound to repair it. Peake, N. P. 219,

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.

264. A presentment on the view of a justice for not repairing a highway.

Middlesex. J. S. esquire, one of the justices of our lord the king, assigned to keep his peace in and for the said county of Middlesex, and also to hear and determine divers felonies, trespasses, and other misdemeanors committed in the same county, by virtue of the statute in such case made and provided, upon his own proper knowledge, presents, in manner (h) and form following, that is to say, (and then proceed as in pr. 263, and conclude) in testimony whereof the said J. S. to these presents hath set his hand and seal, this — day of in the year aforesaid (h).

265. Against an individual for not repairing a road, to the repair of which he was bound, ratione tenure.

The form is the same with that of pr. 263, inserting after the *, and that A. B. late of, &c. esquire, ought, by reason of his tenure (i) of certain lands, (k) situate, lying,

(h) Such a presentment may be removed by the prose cutor, before it is traversed and judgment is given, Cowp. 178. and see 2 Str. 1209. though the act directs that such presentment shall not be removed from the quarter sessions, &c. till it be traversed and judgment be given thereupon, except where the duty or obligation of repairing may come in question.

(i) As against an individual the indictment must shew his obligation to repair, see p. 150; but if he be bound by reason of tenure, it is sufficient to al

lege his obligation, generally, in the above form, either in an indictment or in a plea, since a prescription is implied in the estate of inheritance in the land. Co. Ent. 358. Keil. 52. pl. 4. 1 Haw. c. 76. s. 8. And he may be charged ratione tenur generally, without saying ratione tenure sua; for ratione tenure implies such a tenure as makes the party chargeable, 1 Vent. 331. R. v. Fanshaw, 1 Str. 187. R. v. Corrock, 1 Saund. 158. u. 9. But these are technical and appropriate words, whose meaning has been established by long usage, and