called D. and containing in length, divers, to wit,

yards,

and in breadth, divers, to wit, feet, on, &c. and from thence continually until the day of taking this inquisition, at that part of L. aforesaid, which lies within the constablery [*581] of Q. aforesaid, in the parish aforesaid, in the riding aforesaid, was, and still is, very, &c. [ describe the state of the road as in the precedent, ante 577.] and that within the parish of A. aforesaid, in the riding aforesaid from time whereof the memory of man is not to the contrary, there have been and still are, divers townships, districts, divisions, and places, whereof that part of L. aforesaid, which lies within the constablery of Q. aforesaid, during all the time last aforesaid hath been and still is one, and that the inhabitants of that part of L. which lies within the constablery of Q. aforesaid, in the parish aforesaid from time whereof the memory of man is not to the contrary, (r) have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend, when and so often as it hath been or shall be necessary, such and so many of the common highways, situate, and being within that part of L. aforesaid, which lies within the constablery of Q. aforesaid, as would otherwise be repairable and amendable by the inhabitants of the said parish at large, and that the said part of the same common highway hereinbefore mentioned to be ruinous, deep, miry, broken, and in decay, as aforesaid, now is, and during all the time when the same part of the said common highway is above alleged to be ruinous, deep, miry, broken, and in decay as aforesaid, was a common highway, which, but for the said prescription or (s) usage would be repairable and amendable by the inhabitants of the said parish of A. at large; and that by reason of the premises, the inhabitants of that part of L. which lies within the constablery of Q. aforesaid, in the parish aforesaid, during all the time last aforesaid, ought to have repaired and amended, and still ought to repair and amend the same part of the said common highway, so being ruinous, deep, miry, broken, and in decay as aforesaid, when and so often as it hath been and shall be necessary.

[The second count states the prescription thus:] that with- Second in the parish of A. aforesaid, in the riding aforesaid, from count, time whereof the memory of man is not to the contrary, there have been and still are divers townships, districts, divisions, and places whereof that part of L. which is within the constablery of Q. aforesaid, during all the time last aforesaid hath been and still is one; and that the inhabitants of

(r) As to the necessity for shew- (s) Quære, if this should not be ing the obligation to repair, see in the conjunctive" and."

ante 571.

Crim. Law.

VOL. III.

the said several and respective townships, districts, divi[*582] sions, and places respectively from time whereof the memory of man is not to the contrary have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend, independent of each other, when and so often as it hath been or shall be necessary, such and so many of the several and respective common king's highways respectively situate and being within the said respective townships, districts, divisions, and places as would otherwise be repairable and amended by the inhabitants of the said parish of A. at large.

For not re

against in

those of a

(1)

[Commencement as ante 576.] That on, &c. next after the pairing an making and passing of a certain act of parliament passed in highway, the 19th year, &c. entitled, An Act for repairing and widenhabitants ing the road from, &c. to &c. [set out the title of the act.] J. of parish P., &c. [here set out the names.] being sixteen of the trustees except appointed by the said act to put the same into execution, at a township meeting held on, &c. at, &c. made an order that the said road exempted from S. to W. being part of the road by the said act directby special ed to be ordered, altered, widened, turned, and repaired, and provision. part thereof being in S. parish in the same act mentioned, should be forty feet wide, &c. [state the terms of the order.] And the jurors, &c. do further present, that at another meeting of the said trustees, held on, &c. it was ordered that the footway should be on the West side of the road through S. parish, &c. [state the terms of the second order.] And the jurors, &c. do further present, that afterwards, to wit, on, &c. the said road in the said orders mentioned, in such part thereof as was and is lying in the said parish of S. was in pursuance of the said order made and perfected, and then and there, by virtue of the said orders respectively and of the said act, became and was and ever since hath been a common public king's highway for all the king's subjects, with their horses, coaches, carts, and carriages to go, return, pass, repass, ride, and labour at their free-will and pleasure, and that afterwards, to wit, on, &c. a certain part of the said common king's highway in S. parish, in, &c. aforesaid, [particularly describing it.] and continually from that time was and is ruin ous and out of repair; and that the inhabitants of the said parish of S. (except the inhabitants of the township of S.) ought to repair and amend the same, when and so often as shall be necessary. And the jurors, &c. do further present, that, on, &c. aforesaid, there was and yet is a certain com

Second count.

(t) This indictment was held good on demurrer, see 2 T. R. 106. See general precedent and

notes ante 576, and general note ante 565 to 576.

mon king's highway, leading from, &c. aforesaid, to, &c. aforesaid, for all the liege subjects, &c.* [as before.] and that [*583] a certain part of the said common king's highway, situate and being in S. parish, [particularly describing it.] on the said, &c. of and continually from that time until, &c. was and yet is very ruinous and out of repair. And that the inhabitants of the parish of S. (except the inhabitants of the township of S. who are exempted from the repair thereof, by virtue of an act of parliament passed in the 19th year, &c.) ought to repair and amend the same, when and as often as shall be necessary, &c.

[Commencement as ante 576.] That on, &c, there was Against and from thence hitherto hath been and still is a king's com- the township for not mon highway leading from the market-town of C. in the said repairing county, towards and into the market-town of S. in the coun- road. (u) ty of Y., used for all the liege subjects of our said lord the king and of his predecessors, with their horses, coaches, carts, and other carriages, to go, return, pass, repass, ride, and labour at their free will and pleasure, and that a certain part of the king's common highway, situate, lying, and being in the township of T. in the county of L. aforesaid, beginning at a certain bridge there called Kirkbridge, and ending at a certain place there called Lancashire Gill, containing in length two thousand two hundred yards, and being of the breadth of three yards, on, &c. and continually afterwards until the day of the taking this inquisition, was and still is in great decay for the want of due reparation, and amendment, and enlargement of the same, so that the subjects of our said lord the king passing and travelling through the same 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, to the great damage and common nuisance of all the liege subjects of our said lord the king passing through the same way, and against the peace of our said lord the king, his crown, and dignity. And that the inhabitants of the said township of T, in the said county of L. from time whereof the memory of man is not to the contrary, have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend the said highways so in decay as aforesaid, when and so often as it hath been and shall be necessary. (x)

(u) See precedents 4 Went. 160. 6 Went. 413. ante 580, and the general precedent and notes, ante 576, and the general notes, ante 565 to 576.

(x) The liability appears not to be sufficiently stated in 4 Went. 160, and 6 Went. 413. See 5 Burr. 2700. 2 T. R. 11. 2 Saund, 158, n. 9. ante 571, 2.

That before and upon, &c. there was and continually from thence hitherto hath been and still is, a certain common and [584] public king's highway,* leading from, &c. to &c. used for all Against in- the liege subjects of our said lord the king, with their horses, habitants coaches, carts, and carriages, to go, return, pass, ride, and laof a township for bour, at their free will and pleasure, and that a certain part not repair- of the said king's highway, situate, lying, and being in the ing a road township, of &c. being in the corner of a certain field in the act of par- said township called, &c. in the occupation of, &c. and ex

made by

liament.

(y)

Against

road set

out by the commis

tending from thence to the corner of a certain lawn in the said township, belonging to one, &c. and containing in length 242 yards, and in breadth 8 yards, on, &c. aforesaid, and from thence continually afterwards until the day of taking this inquisition, at the township aforesaid, in the county aforesaid, 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, through the same way with their horses, coaches, carts, and waggons, 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, through the same way going, returning, passing, riding, and labouring, and against the peace, &c. and that the said inhabitants of the said township of, &c. in the county aforesaid, the common highway as aforesaid, so as aforesaid being in decay, ought to repair and amend, when and so often as it shall be necessary. (z)

That before the day of taking this inquisition, by a certain the inhabi- act of parliament made in the parliament of our lord the now tants of a king, at a session thereof, holden at Westminster in the tenth township for not re- year of his reign, entitled "An act for dividing and inclosing pairing a such of the open parts of the district called the Forest of Knaresborourgh in the county of York, as lie within the eleven constableries thereof, and for other purposes therein sioners un- mentioned," it was (amongst other things) enacted, that C. der inclo- D., E. F., &c. and their successors to be nominated and appointed in manner therein after mentioned should be, and they were thereby appointed, commissioners for setting out dividing, assigning and allotting all the open commonable grounds and waste lands within the said eleven constableries,

sure acts.

(a)

(y) From the MS. of a barrister. See the precedents and notes, ante 580 to 584, and the general precedent and notes, ante 576, and general notes ante 565 to 576.

(*) If a public act of parliament created the liability, this

conclusion might suffice, but otherwise it ought to state the liability of the township more specially, as ante 580, 1.

(a) As to the necessity for setting out parts of act, 1 M. &. S. 435.

and for putting the said act in execution, and that the said commissioners,* or any three or more of them should, and [*585] they were thereby required, to set out and appoint, &c. [state the clauses in the act applicable to the case,] (b) as in and by the said act reference being thereunto had will more fully and at large appear. And the jurors aforesaid, upon their oath aforesaid, further present that after the making of the said act, and before the day of the taking of this inquisition, that is to say, by a certain other act of parliament made in the said parliament, at a session thereof holden at Westminster, in the 14th year of the reign of our said lord the now king, intitled "An act to amend an act passed in the tenth year of the reign of his present majesty, entitled, An act for dividing an enclosing such of the open parts of the district called the Forest of Knaresborough, in the county of York, as lie within the eleven constableries thereof, and for other purposes therein mentioned," it was amongst other things enacted [setting out the material part of act,] as in and by the said last mentioned in part recited act, reference being thereunto had, will more fully and at large appear. And the jurors aforesaid, upon their oath aforesaid, further present that afterwards and after the making and passing of the said several acts of parliament, and before the day of the taking of this inquisition, to wit, on, &c. at, &c. the said C. D., E. F., &c. in the said first in part recited act mentioned respectively pursuant, and in obedience to the said several acts took upon themselves the execution of the several powers and authorities reposed in them in and by the said several acts, as such commissioners as aforesaid. And the jurors, &c. further present, that after the making and passing of the said several acts, and after the said commissioners had taken upon them the execution of the powers and authorities so vested in them by the said several acts as aforesaid, and immediately after the said commissioners had made the aforesaid division and settled all the said several allotments pursuant to the directions of the said acts, to wit, on, &c. at, &c. they the said commissioners did form and draw up, and cause to be fairly engrossed on parchment, and did duly execute under their hands and seals, a general award or instrument, in manner and form, as was by the said first in part recited act directed, and by their said general award, amongst other ways and roads therein set out and appointed, did also set out and award, and did award the same to be for ever carriage roads, a certain part of the said open commonable grounds and waste lands, called beginning at

and