at large by Lord Coke, 2 Inst. 700 to 706. And in order to protect the county from the charge of repairing bridges. which in point of utility were not equal to the expence; the 43 Geo. III. c. 59. enacts that they shall not be bound to sustain any bridge, erected after the passing of that act, unless it be built in a substantial or commodious manner, under the direction or to the satisfaction of the county surveyor, or a person appointed by the sessions, s. 5, but the regulation does not* extend to bridges which an individual is lia- [*591] ble to repair by reason of tenure, or a corporation by virtue of prescription, s. 7. Those who are bound to repair bridges are also, it should seem, liable to widen them if necessary, 6 Term. R. 194. 3 Bos. & P. 354. 43 Geo. III. c. 59. s. 1 & 2. and must make them of such height and strength as to resist and be answerable to the course of the water whether it continues in its old channel or forms a new one, and they are not liable to actions of tresspass if they enter any adjoining land for this purpose, or to deposit the requisite materials, Hawk. b. 1. c. 77. s. 5. tion. Modes of Prosecution. The 22 Hen. 8. c. 15. enacts, Modes of "that the justices or four of them at least shall have power prosecu to enquire, hear, and determine in their general sessions all manner of annoyances, of bridges broken in the highways, and to make such process and pains upon every presentment against such as ought to amend them, as the king's bench usually doth, or as it shall seem by their discretions to be necessary and convenient for the speedy amendment of such bridges." In the construction of this provision, it is laid down, that where the franchise in which the bridge lies has not four justices and a sessions of its own, the magistrates from the county must enquire, and if it be a county of itself, the case is not within the statute, and the common law remedies must be pursued, 2 Inst. 502. And, by the direction of the same act, where the bridge is in one jurisdiction and the persons or body corporate bound to repair, reside in another, the proceedings may be commenced in that where the nuisance arises, and process against the defendant may be afterwards awarded into any county where he may be residing. This statute is confirmed by 1 Ann, Sess. 1. c. 18. except so far as the proceedings are altered by the last provisions. This act empowers justices on presentment before them, to lay such a sum on every parish towards the repair as each has been accustomed to collect; it directs the proceedings to originate in the jurisdiction where the defect exists and provides that no certiorari shall be allowed to remove them. But this last proviso extends only to bridges which the county are bound to repair, and where a district or individual is charged or the duty comes in question, the 5th and 6th W. Indictment. & M. c. 11. allows the removal, 2 Stra. 900. In cases of aggravated neglect, or where there appears little chance of obtaining justice by preferring an indictment, the court of king's bench will grant a criminal information against the party liable to repair, 1 Stra. 180. ante 1 vol. But the more usual course, as in the case of highways, is by indictment or the presentment of a magistrate, 2 Inst. 701. Indictment. When the liability to repair rests upon the [*592] county at large, in order to expedite the proceedings, any persons who reside within it may be made defendants, and be compelled to pay the whole fine which the court may assess, and they will be forced to resort to their remedy at law, in order by a contribution, to obtain remuneration from the county, Hawk. b. 1. c. 77. s. 3. The indictment must show what kind of bridge it is which is charged as being in decay, whether for horses, carriages, or foot passengers only, 2 Ld. Raym. 1175. It must also state that the bridge is public, and show that it is in decay, Andr. 285. where a party is bound to repair ratione tenure, that circumstance must be set forth on the record. Thus even against a lord of the manor it will not suffice to charge a prescription without these expressions, 2 Ld. Raym. 792, 804. Where this duty is charged the indictment must show the place in which the lands are situate, 2 Hale, 181. The very terms "by reason of his tenure" should then also be inserted, and the courts will not allow the words "owner and proprietor" to be substituted in their room, 1 M. and S. 439. But in presentments by the grand jury there is no occasion to show who ought to repair, it is sufficient if the defect be shown, and the bridge stated to be public, Andr. 285. The rules already laid down with respect to indictments for suffering highways to be out of repair, apply in general to bridges; except the difference in terms, which arises from the primâ facie liability being thrown in the latter case on the county; and, in the former, on the parish. Plea, &c. Plea, &c.-It is generally laid down that it is not sufficient for the defendants to an indictment for not repairing a bridge to plead that they are not bound to repair the whole or any part of the bridge, without showing what other person is liable, and that if merely the general issue is pleaded, the whole burden of repair will be thrown on the defendants, Hawk. b. 1. c. 77. s. 4., Bac. Abr. Bridges. But it seems from analogy to the case of highways, that this is to be understood only of indictments against the county, and not against any individuals or bodies corporate who are not of common right bound to repair, because it lies on the prosecutor specially to state the grounds on which the latter are liable, and, therefore, on the principle already mentioned, they may negative these parts of the charge under the general issue, see ante 572, 3. 2 Saund. 159. n. 10. It is also said that where the defendants plead, whether necessarily or otherwise, that others ought to repair and traverse the charge against themselves, the attorney general may, in such case, take a traverse upon a traverse, by insisting that the defendants are bound to repair, and traversing the charge against the parties named in the plea; that, on this last traverse issue must be taken, and that the attorney general may afterwards surmise that the defendants are liable to repair, and that the whole mat- [*593] ter shall be tried by an indifferent jury, &c. Hawk. b. 1. c. 77. s. 5. Though the county under the plea of not guilty, can only prove that the bridge was not a public bridge, or that it was in good condition, they may give evidence that particular individuals have been accustomed to repair, not immediately for the purpose of throwing the liability on them, but to afford ground for the jury to conclude that the bridge is not public, 2 M. and S. 262. And Trial. No inhabitant of the county where the nuisance Trial. arises ought to sit as a juror on the trial, though, both at common law and by statute, he may be examined as a witness, 6 Mod. 307., 1 Ann. st. 1. c. 18. s. 13. And, when an impartial trial cannot be expected in the proper county from the interest of the magistrates in the cause, the indictment may be tried in the county adjoining, 6 Mod. 307., 2 Burr. 859, 860., Hawk. b. 1. c. 77. s. 6. ante 1 vol. 201. where the bridge lies within the county of a city or town corporate, and the point in dispute is whether the inhabitants of the city or the county at large ought to repair, on a suggestion of these facts on the record, and that consequently no impartial investigation can take place in either of those jurisdictions, the venire will be awarded into the county adjacent to the larger division, 1 Stra. 177. Judgment. The mode and nature of the judgment in Judgment case of bridges is similar to that in the instance of highways, as the object of the prosecution is like that to remove the present nuisance; and, in many cases, to settle on whom the future liability rests. By 1 Ann, Sess. 1. c. 18. the fine set on the parties convicted, is not to be returned into the exchequer, but is to be applied to the repair of the bridge indicted, see ante 1 vol. INDICTMENTS, &c. FOR NOT REPAIRING Essex. That, on, &c. there was and from thence hitherto hath been and still is (i) a certain common and public bridge, commonly called D. bridge, otherwise D. beam, situate and [*594] being in the parish of H. in the county of Essex, in the Against a common king's highway leading from the town of R. in the county for county aforesaid, towards and unto the city of L. (or to the suffering a public town of in the same county) being a common highbridge to way for all the liege subjects of our said lord the king (k) decay. (h) on foot, and with their horses, coaches, (1) carts, and other carriages, to go, return, pass, repass, ride, and labour, (m) [upon and over every year, at all times of the year, at their free will and pleasure, and that the same during all the time aforesaid, of right ought to have been used, and still of right ought to be used by all the said liege subjects for the purposes in that behalf aforesaid,] and that the said common and public bridge, on the said, &c. aforesaid, and continually from thence until the day of the taking of this inquisition, at the parish of H. aforesaid, in the county aforesaid, was and yet is, ruinous, broken, dangerous, and in great decay, for want of needful and necessary upholding, maintaining, amending, and repairing the same, so that the liege subjects of our said lord the king, in, upon, and over the said bridge on foot, and with horses, coaches, carts, and carriages could not and cannot pass and repass, ride, and labour, without great danger of their lives and loss of their goods, as they ought and were 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, upon and over the said bridge, on foot and with their horses, coaches, carts, and other carriages, about their necessary affairs and business, going, returning, passing, riding, and labouring, and against the peace of our said lord the king, his crown, and dignity. And that the inhabitants of the county of E. aforesaid, of right have been, and still of right are bound to re (h) See other precedents, Cro. C. C. 8 Ed. 313. Starkie, 675. Williams. J. Bridges, and general note ante 589 to 593. (i) Most of the old precedents, state that the bridge was immemorially public, but this is injudicious, see ante 570. (k) Sometimes "and his prede cessors" are here inserted, but if the bridge was not immemorially public, those words should be omitted. (1) Ante 576, n. f. as to coaches. (m) The following allegation within the brackets is usually omit ted in the modern indictments. pair and amend the said common bridge, when and so often as it shall be necessary. ferent conclusion [Same as the last to the asterisk, inserting the matter with- The like in brackets,] and that the said bridge is not within any liberty, with a difcity, or town corporate; and that it cannot be known or proved, that any hundred, riding, wapentake, city, borough, more fortown, or parish, or certain person or body corporate or po- mal. (n) litic, ought of right to make, repair, rebuild, or amend the said bridge; and that the inhabitants of the whole county of E. aforesaid, ought to make, build, repair, and amend the said bridge, when and as often as need hath been, or occasion should or shall require the same, according to the form of the statute in such case made and provided; (0) yet the inhabitants of the county aforesaid have not rebuilt, amended, or repaired the said bridge, so ruinous, broken, dangerous, and in such decay as aforesaid, as they ought to have done, and still of right ought to do, but during all the time last aforesaid, permitted and suffered and still do permit and suffer the said bridge to be greatly ruinous, broken, in decay and out of repair for want of rebuilding, repairing, and amending the same. [*595] [Commencement as ante 2.] That from time whereof the Indictmemory of man is not to the contrary, there hath been, was, ment and still is, a certain ancient and public stone bridge, commonly called Tenbury Bridge, lying and being over the river in two where the bridge lies one of own divi and in the common king's highway, leading from the counties, market town of Bromyard in the county of Hereford, to- against wards the market town of Cleobury Mortimer in the county them for of Salop, for all the liege subjects of our said now lord the neglectking, and his ancestors, late kings and queens of this realm ing to reof England, with their horses, coaches, carts and carriages, pair its upon and over the same bridge to go, return, ride and labour; sion. (P) and that one part of the same bridge lies and is situate in the parish of Burford in the county of Salop, and the other part of the same bridge lies and is situate in the parish of Tenbury in the county of Worcester; and that the said other part of the same bridge which lies and is situate in the said parish of Tenbury in the said county of Worcester, on, &c. and continually afterwards, until the day of the taking of this inquisition at the parish of Tenbury aforesaid, in the (n) This formal conclusion seems unnecessary, as it is a presumption of law, that the county at large is bound to repair. (0) 22 Hen. VIII. c. 5. s. 2, 3. (p) This precedent was obtained from the crown office, Roll Hil. 29 Car. II. Where the bridge lies |