to the prosecutor, 6 T. R. 344. If a surveyor of a parish conduct or defend a proceeding in its name, and with its concurrence, he may charge the sums in his account, which he has been obliged to disburse, 13 Geo. III. c. 78. s. 65. And it has been holden that if a justice of the peace indict for a road being out of repair, and the defendant removes the proceedings by certiorari, the magistrate will be entitled to his costs under 5 and 6 W. and M. c. 11. s. 3. as a party griev ed by the nuisance, 5 T. R. 33.

Indictment a

gainst inhabitants

INDICTMENTS, &c. FOR NOT REPAIRING
HIGHWAYS.

Surry to wit. The jurors for our lord the king, upon their oath, present, that on, &c. (b) there was, and from thence hitherto there hath been, and still is, (c) a certain of parish common and public king's highway (d) leading from A. in for not re- the county of S. towards and unto B. in the same county (e) pairing a for all the liege subjects of our said lord the king to go, return, pass, and repass, ride, and labour, with their horses, coaches, (f) crts, and carriages, in and along the same, at their free will, and pleasure, and (g) that a certain part of the same common and public highway situate, lying, and being in [*577] the parish of G. in the county of Surry aforesaid,* extending from a certain place called to a certain bridge called

common

highway. (a)

(a) See other precedents against a parish, Cro. C. C. (8 Ed.) 307, 8, 9, 320. 4 Wentw. 162, 170, 174, 179, 184. 6 Wentw. 406. to 4.10. 4 Burr. 2090. Starkie, 667 to 672. and the general notes, ante 565 to 576.

(b) This should be some day when the highway was first out of repair, but the precise day is not material.

(c) The allegation in the older precedents was thus, "that there now is, and from time whereof the memory of man is not to the contrary, there was a certain, &c." but this allegation is unnecessary and injudicious, ante 570. and see Cro. C. C. 8th Ed. 321. Sometimes the form runs, "that long before and at the time of the commencement of the nuisance hereinafter mentioned,

there was and of right ought to have been, and still of right ought to be, a certain common, &c."

(d) The term "highway" would suffice, ante 570. 3 T. R. 265. 2 Saund. 158, n. 4.

(e) It does not seem to be necessary, though usual, to state the termini, ante 570. but see forms of stating them, Cro. C. C. 8th Ed. 307, 8, 321.

(f) The word "coaches" is usually inserted, though they came into use long since time of legal memory. Chitty App. Law 118. If the indictment state that the way was immemorial, it would be prudent to omit the word "coaches."

(g) It is not necessary that the indictment should contain the statement of a further presentment.

(h) and containing in length, divers, to wit, one hundred and twenty yards, and in breadth, divers, to wit, fifteen feet, (i) on the said, &c. (k) was, and from thence until the day of the taking of this inquisition at the said parish of, &c. hath been and still is very ruinous, miry, deep, broken, and in great decay, for want of due and needful and necessary reparation and amendment of the same, so that the liege subjects of our said lord the now king, in and along the same way, with their horses, coaches, carts, and carriages, could not, during the time 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, in and along 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 (1) the inhabitants of the said parish of G. in the said county of Surry, the said common and public king's highway, so being ruinous and in decay as aforesaid, during all the time aforesaid, of right ought to have repaired and amended, and still of right ought to repair and amend, when and as often as it should, or shall, or may, be necessary.

[When there is any doubt as to the termini of the road, or Second any other part of the facts, then counts may be added, vary- count. ing the description as in 4 Wentw. 170, 1, and in that case it may be prudent to add a general count, omitting any statement of the termini, either of the road or of the parts out of repair, and merely stating that there was a highway in the parish, and that the same, being of such a length and breadth, was out of repair.]

[Precedents of these presentments are given ante 9 and 10. PresentThe forms are in a great measure prescribed by 13 Geo. III. ment of a c. 78. s. 24. and schedule No. 32. See also other precedents judge or referred to in the notes.] justice of

(h) It is usual though unnecessary to state the termini of the part of the road out of repair, ante 570. 1. See forms which state it, Cro. C. C. 8 Ed. 308, 309, 321. 4 Wentw. 162, 171, 179, 184. 6 Went. 406. and forms which do not contain the statement, Cro. C. C. 8 Ed. 307. 4 Went. 170, 175. 2 Starkie, 667. The form of presentment given in 13 Geo. III. c. 78. contains the termini, and therefore it may be advisable in general to state them when they can be readily ascertained.

the peace of a highway being out of re

in two

[*578] That long before and at the time of the commencement of For not re- the nuisance hereinafter mentioned, there was, and of right pairing a ought to have been, and still is, and of right ought to be, a part of highway certain common and public king's highway, leading from that situate in a part of the parish of St. A. the less, in the city of B. and parish county of the same city, which lies near to a certain place which lies then called the lime kilns, unto a certain place called and counties, known by the name of D. square, in that part of the parish against the of C. which lies in the county of G. for all the liege subjects whole pa- of our said lord the king, with their horses, coaches, carts, rish. (m) and other carriages, to go, return, pass, repass, ride, and labour, at their will and pleasure; and that a great part of the said parish of C. is situate in the city of B. and county of the same city, and the residue of the same parish is situate in the said county of G. and that a certain part of the said king's common highway, situate, lying, and being in that part of the said parish of C. which lies in the said county of G. commencing opposite to a certain public house, called and known by the name and sign of, &c. situate in that part of the said parish of C. which lies in the said county of G. near to a certain place called K. and extending towards D. square aforesaid, and containing in length one thousand and five hundred feet, and in breadth fourteen feet, on, &c. and continually afterwards, until the day of the taking of this inquisition, at that part of the said parish of C. which lies in the said county of G. was and yet is 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, in and through the same part of the said way, so as aforesaid being in decay, with their horses, coaches, carts, and other carriages, could not, during the time last aforesaid, nor yet can go, return, pass, repass, ride, and labour, as they ought and were wont to do, 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, in and 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 C. in the city of B. and county of the same city, and the inhabitants of the same parish of C. in the said county of G. the said common and public king's highway so being ruinous

(m) The indictment must be against the whole parish, and not against that part only which lies in the county where the way is out of

repair. 5 T. R. 498. The form in Cro. C. C. 8th Ed. 320, 1. is defective. This is framed according to the suggestions in 5 T. R. 506.

and in decay as aforesaid, during all the time aforesaid.* [*579] ought to have repaired and amended, and still of right ought to repair and amend, when and as often as it should or shall or may be necessary.

of an high

way. (n)

That on, &c. and during all the time hereinafter mention- Indicted, there was and still is a certain common and ancient ment against a paking's highway, leading from the town of M. in the county rish for not of N. unto the town of C. in the county of D. used for all repairing the liege subjects of our said lord the king and his prede- three distinct parts cessors, with their horses, coaches, carts, and carriages, to go, return, pass, ride, and labour, at their free will and pleasure, and that a certain part of the said king's common highway, situate, lying, and being within the parish of H. in the county of D. beginning at a brook called S. B. and so continuing towards the said town of C. for the length of one hundred and ninety eight yards, and containing one hundred and ninety eight yards in length, and ten yards in breadth, and a certain other part of the said king's highway, situate within the said parish of H. beginning twenty two yards southward from the sixth milestone, leading from M. to C. and so continuing towards the said town of C. and containing three hundred and seventy four yards in length, and ten yards in breadth, and also a certain other part of the said king's highway, situate within the said parish of H. beginning at one hundred and eighty yards northward, from a bridge called D. L. bridge, and so continuing towards the said town of C. for the length of one hundred and thirty two yards, and containing one hundred and thirty two yards in length, and ten yards in breadth, on, &c. and continually afterwards, until the day of taking this inquisition at the said parish of H. were and yet are 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, passing and travelling through the same way, with their horses, coaches, carts, and carriages, could not, during the time aforesaid, nor yet can go, return, pass, 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, passing through that way, and against the peace, &c. and that the inhabitants of the said parish of H. the said parts of the said highway, so as aforesaid being in decay, ought to repair and amend, when and as often as the same shall be necessary.

foot way,

called a

pack and prime way. (0)

[Commencement as ante 576.] That on, &c. there was,

and from thence hitherto there hath been and still is, a cer[*580] tain common* and ancient pack and prime way, (p) leading Against in- from the village of L. in the county of S. to the village of D. habitants in the same county, for all the liege subjects of our lord the of parish for not re- king and his ancestors, on horseback and on foot, to go, repairing an turn, pass, repass, ride, labour, and drive their cattle at their ancient free will and pleasure; and that a certain part of the same horse and common pack and prime way, situate, lying, and being within the parish of G. in the county aforesaid, containing in length three hundred yards, and in breadth five yards, on, &c. and continually afterwards, untilthe day of the taking this inquisition, at, &c. was, and yet is 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 in and by the same way, with their horses and cattle, could not, during the time aforesaid, nor yet can, go, return, pass, repass, ride, and labour, as they ought and were wont to do, 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, &c. And that the inhabitants of the said parish of G. in the county aforesaid, the same common pack and prime way, so as aforesaid being in decay, ought to repair and amend, when and so often as it should or shall be necessary.

for not re

Against a That on, &c. and long before, there was, and from thenceparticular forth continually hitherto there hath been and still is, a cerdivision of tain common king's highway, leading from H. in the west a parish riding of the county of Y. towards and unto H. in the west pairing an riding aforesaid, used for all the liege subjects of our said highway. lord the king, to go, return, pass, and repass, on foot and [g] horseback, and with cattle, carts, and carriages, at their will and pleasure, and that a certain part of the said common king's highway, situate, and being in that part of L. which lies within the constablery of Q. in the parish of A. in the riding aforesaid, beginning at M. in the parish aforesaid, in the riding aforesaid, and extending from thence to a certain place

[o] See form Cro. C. C. 8th Ed. 307, 8.

[p] So called because it is a footway, which was the prime or first kind of path, and is a horse or pack way also, Co. Lit. 56. See the general precedent and notes, ante 576, 7, and the general notes, ante 565, to

[q] See general precedent and notes, ante 576, 7. and general notes, ante 565. to 576. and as to the necessity of shewing the obligation to repair, see 2 T. R. 513. Andr. 256. 2 Saund. 158. n. 9. and general note, ante 571.