and after a verdict of guilty, judgment will be arrested, 1 Leach, 528., 5 T. R. 513., 4 Burr. 2090. Hawk. b. 1. c. 79. s.* 86.,2. Saund. 158. n. (6.) so a material variance from the [*571] description in the indictment will be fatal; thus an averment that the highway leads from A. to C. will not be satisfied by evidence of a road leading from A. to B., and communicating by means of a cross road, 6 Esp. R. 136. But an indictment describing the way as leading from a hamlet in the parish indicted is good, because the road may well pass through other parts of the same district, 4 Burr. 2090. And to describe the road as leading from a hamlet is sufficient, though it was formerly thought it must be shown that it led from one town to another, id. ibid.

The indictment must also expressly show that the way is in bad repair, and an allegation that it is narrow and muddy will not suffice, 2 Ld. Raym. 1169. see And. 234. It seems doubtful how far it is necessary to state the extent of the nuisance, by showing how many feet in length and in breadth are out of repair; as some authorities assert that it is requisite, Cro. Jac. 324., 2 Rol. Ab. 80, 81., R. T. Hardw. 105, 106, 316., Hawk. b. 1. c. 76. s. 88. and others are expressly against it, Say. 167, 301, 98. But as the reason assigned for its insertion is that the court may be able to judge with certainty of the fine which they ought to impose, and as they do not at present estimate the sentence from the formal statement on the record, it seems to be the better opinion that it might be omitted; 2 Saund. 158. n. (7.) though it is certainly most prudent to introduce it, especially as the allegation as to the extent need not be proved precisely as alledged. Where the road lies in two parishes, an indictment against one of them for not repairing one side of a road must state that each parish was liable to repair ad medium filum viæ, and not merely that a certain part of the way of a particular breadth was out of repair, and that the parties indicted were bound to amend it, Peake Rep. 219. 6 Wentw. 409. in notes.

When the indictment is against an individual, or a township, or class of persons, not of common right bound to repair, the mode in which the defendant became liable must be stated, 5 Burr. 2700. A subdivision of a parish can only be liable by custom, prescription, or legislative provision, and an indictment against the inhabitants of it must show specially the liability of the inhabitants to repair, 5 Burr. 2700., 2 T. R. 513., Andr. 256. and where a party is indicted for not repairing pavement before his house, his liability to repair must be shown, 2 Ld. Raym. 922. But if an individual be bound to amend a road by reason of holding certain estates in fee simple, it is sufficient to aver that he is liable by reason of the tenure of his lands, without adding" as he and all those who held the

[*572] said lands for the time being, from time whereof the memory of man is not to the contrary, were used to do;" for a prescription is necessarily implied in the estate of inheritance which he possesses, Co. Ent. 358., Keilw. 52. pl. 4. Hawk. b. 1. c. 76. s. 8. But where the duty arises from inhabitancy alone, it is necessary to state the usage, Keilw. 52. 2 Saund. 158. n. 9. And although Styles, 400, seems at first to oppose this proposition, it appears from the construction put on it in 2 Saund. 158. n. 9. to be in reality in its favour; for there the indictment stated that the party was bound to repair by reason of his tenements, and was quashed only because the word tenure was not inserted. And it seems to be sufficient to state the liability ratione tenuræ terræ without adding sua, though it has been thought otherwise; because the court will intend the tenure to be such as will make the defendant chargeable, 2 Saund. 158. n. 9., 1 Ventr. 331., 1 Stra. 187. But the terms rationæ tenure should be adhered to, and no others, however similar their import may appear, substituted in their room; for the insertion of ownership and proprietorship was holden insufficient to excuse the omission, 1 M. and S. 435., Styles 400. Agreeably to the distinction between a duty to repair arising from tenure, and that which results only from inhabitancy, it has been holden that where the inhabitants of a division of a parish, as a district, township, or hamlet, are indicted for not repairing, it is not sufficient to aver that from time immemorial they ought to repair and amend it, but it ought to be stated that the inhabitants of such district, from time whereof the memory of man is not to the contrary, have used and been accustomed, and of right, ought so to do; because the obligation does not exist at common law, but must arise from custom or prescription, which should be stated on the record, 2 Saund. 158. n. 9., 5 Burr. 2700., 2 T. R. 11. see forms of indictment against a district or township, post 19 to 23. And in general, where a district less than a parish is indicted, it must be expressly shown how the duty arises, 2 T. R. 513., Andr. 276., 2 Saund. 158. n. 9.

Pleas,

Plea. The case of highways is almost the only instance in which the merits of a criminal charge may not always be investigated under the general issue. When the obligation to repair is admitted, and the fact of the bad state of the road is alone disputed, there can, of course, be no other plea than not guilty. But it is where the defence is rested on a denial of the liability to amend, that the question as to the form of pleading aríses. When this is the case, it is settled that if the defendants are those, who of common right ought to repair, as the parish at large, they cannot throw the liability from themselves upon any others by pleading the general issue,

but must state the liability of the other parties in a special [*573] plea, ante 1 vol. 473,474., 1 Mod. 112., 12 East, 192., 13 East, 95., Hawk. b. 1. c. 76. s. 9., 1 Ld. Raym. 725., 2 Saund. 159. n. 10., 1 T. R. 111. But this rule does not apply where the duty is transferred by a public act of parliament, of which all are supposed to take cognizance, 3 Campb. 222. And the parish may give in evidence under the general issue that the way is not public, ante 1 vol. 473, 474. and, in order to conduce to that point, may show that private individuals have been accustomed to repair it, 2 M. and S. 262. And by a special plea, the parish may rebut the primâ facie obligation to repair, and show that others are liable. Thus where the parties really bound have been already convicted of suffering the same road to be out of repair, the defendants may plead the conviction, setting out the record and averring the identity of the way in respect of which they are indicted, Sir Tho. Raym, 385., Trem. P. C. 206. Where, on the other hand, the defendants are charged as bound to repair from custom, prescription, or tenure, they may under the general issue negative the duty thus alledged, and throw the burden on the parish, or even on a particular individual or district, Comb. 396., 1 Stra. 181, 2, 3. 2 Saund. 159. b. n. 10. And the reason of this distinction is, that the prosecutor must, in order to support his charge, prove the defendants to be thus chargeable, and therefore they are at liberty to disprove it by opposite evidence, 2 Saund. 158. n. 10. ante 1 vol. 473, 4. When different subdivisions of a parish have immemorially repaired the highways within their respective limits, and the parish at large is indicted, this prescription must be pleaded, because if, on verdict of guilty or default, judgment be given against the parish, the judgment may afterwards be given as evidence of the liability of the whole parish to repair, Peake, N. P. 219. But the effect of this presumption may be avoided, if the districts in which the road in bad repair did not lie can show that they were not aware of the proceedings, and that the defence was conducted without their knowledge or concurrence; in which case the court will consider the indictment as in reality against the division alone where the nuisance existed, and will permit the other divisions to plead the prescription to any subsequent prosecution against the parish at large, Dougl. 421., 2 Saund. 159. b. n. 10. The form of the plea in such a case is given, ante 1 vol. 475, 6. as extracted from 2 Saund. 159. b. n. 10. see also post. On this plea, issue will be joined, and, if the prescription be proved, the parish will receive an acquittal, 2 Saund. 159. b. n .10.

Every special plea must not only deny that the defendant is bound to repair, but must state on whom the obligation lies and from whence it arises, 1 Sid. 140., Carth. 213., 2 Crim. Law.

VOL. III.

B

[*574] Saund. 159. n. 10. And even where a special plea is unnecessary, and the whole defence might be given in evidence under the general issue, if the defendant will unnecessarily plead specially that he is not bound to amend, he must go further, and state in whom the duty exists, id. ibid. And it will be necessary to traverse the obligation which the indictment alleges, 2 Saund. 159. n. 10. But where a parish is indicted for not repairing a highway which they are bound of common right to preserve, they ought not to traverse their own obligation to repair, but merely show the liability to be thrown on others; for it is in this case a traverse of a matter of law, and as such, though often inserted, is demurrable, and should always be omitted, 1 Saund. 23, n. 5., 2 Saund.

Replications.

Of a view.

New trial.

Judgment.

159. n. 10.

Replications, &c. If the plea of the parish improperly conclude with a traverse, the replication ought not to take issue upon it, but on the liability of the parties to whom the duty is endeavoured to be transferred, 2 Lev. 112., 1 Saund. 23. n. 5. If the plea conclude to the country, the similiter may be immediately added, “and A. B. who prosecutes for our Lord the king doth the like." See 1 vol. 478. The proceedings may, at any time, be stayed on affidavit, and the certificate of two justices that the road in question is now in a good state of repair, and is likely so to continue, 3 Smith, 575. 1 Bla. Rep. 602, 295. But the affidavits must expressly state the probable continuance of the repair, 3 Smith, 575, and the prosecutor's cost must be paid up to the time when the defendant makes his submission, 1 Bla. Rep. 602, ante 1 vol. 691, &c.

Of a view. It may frequently be requisite on the part either of the prosecutor or defendant, that the jury should have a view of the place indicted. This cannot, it seems, be granted by the judges at the assizes, 1 Sess. Cas. 180. 2 Barnard, 214. 1 vol. 378, 483, but may be obtained by removing the proceedings into the king's bench by certiorari, which will, on proper affidavits, be granted. We have already seen that the forms on this occasion will be, in general, similar to those which are observed in civil proceedings, 1 vol. 483.

New Trial. Although the trial of a prosecution for not repairing highways is, in general, a mere contest respecting a civil liability, as the proceedings are in form criminal, the court, after verdict for the defendant, will not grant a new trial; but, if the nuisance in question continues, the continuance will form a distinct offence, for which he may be again indicted, 6 East, 315. ante 1 vol. 657.

Judgment. As the object of this prosecution is not the punishment of the defendant, but the repair of the highway,

it is not indispensably* requisite that he should be in personal [*575] attendance at the time judgment is pronounced upon him, and where a district is indicted, this is of course impossible. 1 Salk. 55, 6. Hawk. b. 2. c. 48. s. 17. 1 vol. 695, 6. Where an individual has been found guilty, he may obtain a rule to show cause why his personal appearance may not be excus ed, on his agent's engaging to pay such fine as the court may assess; and if the prosecutor acquiesce, or no sufficient reason to the contrary is shown, the court will make the rule absolute, and give the judgment in the defendant's absence, 1 vol. 696. The judgment against the defendants usually is, that they should pay a fine and repair the nuisance, Bro. Abr. Nuisance 49. 8 T. R. 142, 3. But if a justice of the peace grant a certificate that the road is now in good condition, the court will merely assess a small fine, as 6s. 8d. or 138.4d. 13 East, 164. 3 Smith, 575. 6 T. R. 635. And if the certificate state that the way has since been diverted by the order of two justices, and that so much of the old way as is retained is in repair, the sentence will only be passed for the nominal penalty, 13 East, 166, 7. And, therefore, to give a false certificate is an indictable offence, as obstructing the course of justice, and may be the subject of a conspiracy between the magistrates and the persons who procured their assistance, 6 T. R. 619. Williams, J. Highways XII. The fine is not to be returned into the exchequer, but paid to such person as the court shall order, and applied to the repair of the road in question. And if, after the conviction of a parish, the fine assessed be levied on individual inhabitants, those persons may complain at the special sessions, and the justices there assembled are to cause a rate to be made, reimbursing them for the money they have expended, 13 Geo. III. c. 78. s. 47. But justice will not be satisfied with a payment of the fine, for a distringas will be issued in infinitum, until the road is put in a state of sufficient repair, 1 Salk. 359. 6 Mod. 163.

Costs. It is enacted by 13 Geo. III. c. 78. s. 64. that it Costs. shall be lawful for the court, before whom any indictment or presentment shall be tried for not repairing highways, to award costs to the prosecutor, to be paid by the defendants, if it appear to the court that the defence was frivolous, or to the defendants, to be paid by the prosecutor, if the court shall think that the prosecution was vexatious, ante 1 Vol. Under this clause, the application must be made to the judge who tries the indictment, and, if this be omitted, the king's bench will not afterwards interfere. 5 T. R. 272. But no precise form of certificate seems to be necessary, and if it be stated on the back of the record that the defence was frivolous, this will suffice, without proceeding to award* costs [*576]