yards in leading westward to and a certain other part, &c. be[*586] ginning at — and leading southward to which said two roads in pursuance of the powers given to the said commissioners by the second act, they the said commissioners did thereby award to be made and kept in repair by the said inhabitants and occupiers of lands and tenements within the township of and did thereby award that the roads should be called by the names above mentioned, as by the said award reference being thereunto had will more fully and at large appear. And the jurors, &c. further present, that the said last mentioned roads were and are roads leading into, through and adjoining the said allotments in the said second act mentioned, to wit, at the township of aforesaid. And the jurors, &c. that a certain part, to wit, length, and yards in breadth, of the said carriage roads so set out, and appointed to be carriage roads for ever as aforesaid, afterwards and after the making of the said award of the said commissioners in manner and form aforesaid, and after the said roads had been completed, made and found as required by the said act, to wit, on, &c. and from thence continually until the day of the taking of this inquisition, to wit, at the township of aforesaid, in the county aforesaid, were and still are miry, ruinous, broken and in great decay, for want of the due reparation and amendment of the same, so that the liege subjects of our said lord the king by themselves, and with their horses, coaches, carts and carriages, could not, during all 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 carriage roads going, returning, passing, riding and labouring, contrary to the form of the acts of parliament aforesaid, and against the peace of our said lord the king, his crown and dignity, and that the inhabitants and occupiers of lands and tenements within the said township of — in the county of aforesaid, the said carriage roads, so as aforesaid, being in decay by force of the said several acts, and by virtue of the said general award, so in pursuance thereof by the said commissioners made as aforesaid, ought, during the time last aforesaid, to have repaired and amended, and still ought to repair and amend when and so often as it hath been and shall be necessary. Cumberland. That from time whereof the memory of man is not to the contrary, there was and has been a certain ancient and common king's highway, leading from a certain [*587] village called B. in* the said county of C. into a certain lane Against called S. lane, in the parish of S. in the city of C. in the the mayor said county, for all the liege subjects of our said lord the &c. of Car king and his predecessors, kings and queens of this realm, lisle, for by themselves, and with their horses, coaches, carts and pairing an carriages to go, return, pass, repass, ride and labour, at highway their will and pleasure, and that a certain part of the king's which highway, containing in lengthyards, and in breadth they are bound to feet, and lying in a certain street called Black Friers repair in Street in the parish of St. Cuthbert aforesaid, in the city of consideraCarlisle aforesaid, on, &c. and continually from thence af- tion of terwards until the day of the taking of this inquisition, at tolls. (c) the said parish, in the said city of C. and county of C. was and yet is miry, ruinous, broken, dirty, and in great decay, for want of the due reparation and amendment of the same, so that the liege subjects of our said lord the king through the same way, by themselves and with their horses, coaches, carts and carriages, could not during the time aforesaid, nor yet can go, pass, repass, ride, and labour, without great danger of their lives and 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 mayor, aldermen, bailiffs and Averment burgesses of the city of Carlisle aforesaid, by reason of their that the being intitled to and taking and receiving of certain tolls for corporation ought the passage of cattle and loaded carriages through the said city of Carlisle during all the time aforesaid, the common as owners highway aforesaid, above particularly mentioned and de- of tolls. scribed (so as aforesaid being in decay) have been 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 as often as occasion hath required, and have not done it, &c. [There were two other counts like the first, for other parts of the highway.] to the asterisk, Against an bound to [Same as the general precedent, ante and then proceed thus,] And that A. B. late of, &c. esquire, individual ought by reason of his tenure of certain lands, situate, lying repair raand being in the said parish of — in the county aforesaid, tione teto repair and amend the said highway, so being ruinous and nuræ. (d) in decay as aforesaid, when and as often as it should or shall or may be necessary. (c) See precedent, 4 Wentw. 157. and another form, id. 178. which seems not to state the tolls and liability sufficiently fully; as to the necessity for showing the Liability, see ante 571, 2, and the precedents and notes ante 580, &c. [*588] Against scaven not That A. B. late of, &c. and C. D. late of, &c. and long before, were and still are scavengers within the said parish, in the county aforesaid,* duly elected by the inhabitants of the said parish diligently to supervise, order and direct (amongst other things belonging to their office in that begers for half) that all the highways, streets and lanes in the said pacleansing rish, in the county aforesaid, should be cleansed of dirt and the filth, and during the whole time aforesaid, did take upon streets.(e) themselves the said A. B. and C. D. the said office of such scavengers as aforesaid, and that during the time they the said A. B. and C. D. were such scavengers, to wit, on the same, &c. aforesaid, and on divers other days and times as well before as afterwards, divers large quantities of dirt and filth were put, placed and laid in and upon the said ways, streets and lanes, by persons to the jurors aforesaid as yet unknown, nevertheless the said A. B. and C. D. the duty of their office in this respect neglecting, on the said, &c. and on the said other days and times respectively at, &c. aforesaid, the common highways, streets and lanes aforesaid, did not cleanse or cause to be cleansed of the dirt and filth aforesaid, but then and on the said other days and times respectively did unlawfully and contemptuously permit and suffer, and still do permit and suffer the said dirt and filth to be, lie and remain in the said common highways, streets and lanes within the parish aforesaid, in the county aforesaid, to the great damage and common nuisance, as well of all the liege subjects of our said lord the king there inhabiting and residing, as of all other the liege subjects of our said lord the king, there passing, repassing and labouring, in contempt, &c. to the evil example, &c. and against the peace, &c. (f) Indict ment against a raker for neglecting to cleanse the streets. (g) That T. L. late of, &c. on, &c. and long before, was and yet is one of the rakers for the liberty of Saffron Hill, Hatton Garden and Ely Rents within the said parish, and during the whole time aforesaid, did take upon himself to execute the office of raker of the streets, lanes, alleys and passages within the same liberty; and that during the time he the said T. L. was such raker as aforesaid, to wit, on the same, &c. aforesaid, and on divers other days and times, as well before as afterwards, divers large quantities of dust, dirt, (e) From Cro. C. C. 538. 7th edition. This indictment, and the following, are framed upon 2 W. & M. c. 8. s. 5. which directs the duty of scavengers and rakers, and consequently any breach of such obligation, will subject the offender to an indictment, unless by the terms of the act he be otherwise punishable. See 2 Hale, 171. Bac. Abr. Indictment, E. Cro. C. C. 8 Ed. 33. (f) Quare, no conclusion as in the next precedent, contrary to the form of the statute, &c. (g) Cro. C. C. 539. 7th edition. See last precedent and note. ashes, filth and soil, were put, placed and laid in and upon the said streets, lanes, alleys and passages by persons, to the jurors aforesaid as yet unknown, and that the said T. L. on the said, &c. and on the said other days and times respectively, at, &c. aforesaid, did unlawfully and contemptuously neglect and refuse to carry away or cause to be carried away the said dust, dirt, ashes, filth and soil, from* and out of the [*589] said streets, lanes, alleys and passages or any of them, to the great damage and common nuisance as well of all the liege subjects of our said lord the king there inhabiting and residing, as of all other the liege subjects of our said lord the king, there going, passing and labouring, in contempt, &c. to the evil example, &c. against the form of the statute, &c. and against the peace, &c. INDICTMENTS, &c. FOR NOT REPAIRING PRELIMINARY NOTES. (a) As to the offence. The repair of Bridges is subject to The of nearly the same rules as affect highways. As a highway, of fence. common right, is to be repaired by the parish in which it lies, public bridges are to be amended by the county in which they are situate, 2 Inst. 701. 2 East, 349. 12 East, 192., and see recital in 43 Geo. III. c. 59. And this liability of the county is not confined to the bridge itself, but extends to the highway for three hundred feet on both sides of it, 7 East, 588. 5 Taunt. 284. 2 Dow. Rep. 1. This addition to the bridge existed at common law, being considered as intimately connected with it, and arising from the dif ficulty of ascertaining its precise limits from the continuation of arches on each side of the river, 7 East, 596. So that any person or public body bound to repair a bridge, are also bound primâ facie to amend the adjacent road for this distance, 7 East, 588. 2 Dow. Rep. 1. 5 Taunt. 284. The county is, of common right, chargeable with the repair not only of bridges used by carriages, but such also as are intended for horses and foot passengers only, so that they are public, which they are presumed to be, 12 East, 192. 13 East, 95. and to constitute such public bridge it is not ne (a) See, in general, 2 Inst. 697, to 706. Bac. Ab. Bridges. Burn, J. Bridges. Williams, J. Bridges. Dick. Crim. Law. J. Bridges, and see the previous VOL. III. D cessary that it should be always open, but if the public use it, at particular seasons, it will suffice, 2 M. & S. 262. Individuals may, however, be bound to repair either by the tenure of lands or by ancient usage, 2 Inst. 700. But, as in the case of highways, no private individual can be liable by mere prescription, without some land in respect of which he is charged, or some profit to balance his expences; [*590] though it is otherwise with bodies corporate,* id. ibid. And, therefore, if a person build a bridge, which is useful to the county, they and not he are liable to the subsequent repairs, 5 Burr. 2594. 2 Bla. Rep. 685. 13 East, 220. 12 East, 192, 5 Taunt. 289, 292. So that where a miller, for his own profit, deepens the water at a ford which before was inconvenient to the public, and builds a bridge in its room, he will not be liable to repair, though he continues the water of a depth which prevents any other passage, 2 M. & S. 513. And the county or riding are even liable to repair a bridge erected by commissioners under an act of parliament, though the latter are empowered to raise tolls in order to support it, 2 East, 336. But when an act of parliament appoints trustees for taking down an old bridge and building a new one in its room, the county is not liable to repair until the purposes of the act are accomplished, and the powers it confers cease to operate, 16 East, 305. And if a bridge of a slight and incommodious nature, and evidently intended to throw a burden on the county be erected in a highway, it may be indicted as a common nuisance, and, as such be abated, 2 East, 348. Where there has been a foot bridge over a river which a particular district are bound to maintain, and the district widen and enlarge it so as to convert it into a bridge for carriages, or rebuild it on such an extended scale in another place, and make it as such a matter of public benefit, the county will be bound to support it as a carriage bridge, and the district will contribute to the repair a similar sum to that which they would have expended had it remained for the accommodation of foot passengers only, 5 Burr. 2594. 2 Bla. Rep. 685. 2 East, 353. n. a. Where a house adjoining a public bridge is in so dilapidated a condition as to obstruct the passage, the occupier, though merely tenant at will, and consequently not liable to repair as between himself and his landlord, will be compelled by reason of his possession, so far to repair as to prevent the continuance of the obstruction. In such a case, it will be improper to charge him as liable ratione tenure, though such a description will not be fatal, as it will be intended of residence and not of service, 2 Ld. Raym. 856. The mode in which the necessary sums may be raised for defraying the expences of bridges is directed by 22 Hen. VIII. c. 5. commented upon |