public and repaired by the parish for twenty years, if there could be no owner who could dedicate it, and the repairs by the parish be shown to have been begun and continued under a mistaken notion of the liability to repair (72). If one who owns lands through which a highway passes, encloses his lands on both sides, he is bound to make the road a perfect good way; it is not sufficient, if it be as good as it were before, if it were then defective, for then the public used, where the road was bad, to go, for their better passage over the fields adjoining, which liberty is taken away. If the owner enclose one side only, he is bound to repair the whole, if there be an ancient enclosure on the other side, but if there be not, then only half; and it seems that on throwing open the enclosure his liability to repair ceases (73). An enclosure under the direction of an act of parliament creates no liability on the party enclosing to repair (74); and it is so also in regard to a road made in pursuance of a writ of ad quod damnum (75). All stiles on footpaths, between different enclosures, must be repaired by the occupier of the land (76). Where proof of the boundaries of a parish, or district, is founded on the award or commissioners appointed to set them out under an act of parliament, it must be shown that in such award the commissioners have pursued their authority, or the award is not binding as to the boundaries of the parish (77). As to the highway being within the parish indicted, etc. (72) R. v. Edmonton, 1 Man. & R 24.

(73) 1 Hawk. c. 76, ss. 6, 7, 8; 3 Bac. Ab. Highways (F); 1 Russ. 325; 2 Wm. Saund. 160 a, n (12); Wellbeloved on Highways 90 Woolrych on Ways, 80; ante, p. 150, n.

(74) R. v. Flicknow, 1 Burr. 461. (75) Ex parte Venner, 3 Atk. 772; 1 Hawk. c. 76, s. 7.

(76) 1;Salk. 357, pl. 3; 7 Mod. 5. (77) R. v. Hastingfield, 2 M. & S. 558; R. v. Washbrook, 4 B. & C. 732; 7 D. & R. 221; and see Maule v. Stowell, 15 East, 99,

EVIDENCE.

Prove that the highway (see ante, p. 146, n) in question is out of repair-that the township indicted has been used and accustomed to repair it heretofore, (see note, infra). Rosc. Cr. Ev. 2 ed. 522, 526; Arch. 8 ed. 645. Prec. of Indictment and Pleas, Arch. Id.; Matt. C. L. 490.

OBSERVATIONS.

As to the description of the highway in the indictment, variance, etc., (see ante, p. 150, n); competency of witnesses, etc. (see post, p. 158, n.)

Proof for the defence.]Under a plea of not guilty, the defendants may show, that the parish at large, or some other district of the parish, or some individual, ratione tenuræ, is bound to repair it. If these defences be pleaded specially, which is unnecessary, the plea must conclude with a special traverse of the liability of the district indicted, and it must be shown in particular who is bound to repair; but under the plea of not guilty it is not necessary for the defendants after disproving their own liability to go further, and prove the liability of others (a). If the indictment charge the township or division with the repair of all roads within it generally, a special plea is necessary; for such a prescription makes the township or division for that purpose a parish, and they must plead, etc. as a parish would under such circumstances (b).

(a) R. v. Yarton, 1 Sid. 140; R. v. Hornsey, Carth. 213; 2 Saund. 159 a (n. 1); 1 Russ. 332.

(b) R. v. Hatfield, 4 B. & Ald. 75; see ante, p. 152.

see ante, p. 151, n.; and as to stopping and changing highway, see also ante, p. 149, n. By particular Districts and Persons by Prescription.]— A parish may be exonerated from liability to repairs, where, by custom, a township, or other particular district, may be liable to such repairs; and it is sufficient to state in the indictment, that the township has been used and accustomed to repair, and of right ought to repair (78). And where a township has been used immemorially to repair all roads within it, such township is placed in the same situation as a parish, and cannot discharge itself from liability, without showing that some other persons, in certainty, are liable to the repairs (79). Where a new way is made within the limits of a township, and which, had the parish been bound to repair, must have been repaired by the parish, such way must be repaired by the township (60). The inhabitants of a township cannot be liable ratione tenure, for unincorporated inhabitants cannot, as such, hold lands (8). A prescriptive liability cannot arise respecting a way made within the time of legal memory (2); but the formation of a new way does not interfere with the general prescription; nor does a recent addition of a hamlet to a township negative the prescriptive liability of a township generally (83). It has been left in doubt whether or not the inhabitants of (78) R. v. Ecclesfield, 1 B. & Al. 348; R. v. West Riding of York, 4 B. & Al. 623. An indictment would be bad, if it did not show that the highway out of repair, was within the district the defendants are charged with being liable to repair; R. v. Inhab. of Auckland, 1 A. & E. 744.

(79) R. v. Hatfield, 4 B. & A1,75. (80) R. v. Ecclesfield, ante; R. v. Netherthong, 2 B.& Al. 179. (81) R. v. Machynlleth, 2 B. & C. 166.

(82) R. v. Hudson, 2 Str. 909; R. v. Hayman, 1 Mood & M. 401. (83) R. v. Oswestry, 6 M. & S. 361; as to a new way, ante.

an extra-parochial district are bound to repair the highways within such district, but it seems that an indictment against such a district should allege that the inhabitants are immemorially bound to repair, and that the hamlet does not form part of a larger district, the inhabitants of which are bound to repair (85). To charge a parish with the repair of a highway lying in another parish, some consideration must be shown; mere prescription is not enough (86). A corporation, sole or aggregate, may be bound by prescription or usage to repair a highway, without showing that it is in respect of either tenure or any other consideration (67). By private Individuals.]—Private individuals can only be bound to repair a highway in respect of some consideration, and not merely by a general prescription (88); yet it is sufficient to charge such a liability in an indictment, as being "by reason of the tenure of his land," for that implies that his ancestors, whose estate he has, have always so done (89). Each tenant of any part of lands liable to this burden, may be charged with all the repairs, but he may have contribution from those liable with him, and a grantee is chargeable though the grantor has discharged him, and he has his remedy over against the grantor (90). Where a defendant had repaired a road twenty-five years, it was held that this was evidence of a liability to repair, ratione tenure, generally (91); but the nature of the repairs must be regarded in determining whether the act of repairing is evidence of liability to repair, ratione tenure (92). As to the charge of repairs arising from enclosure, see ante, p. 156, n. Highways repaired by parties, ratione tenure, may now be made parish highways, on payment of an annual sum to be fixed by the justices (93).

Competency of Witnesses-admissibility of Evidence.]—The prosecutor of an indictment against a parish for not repairing, is a competent witness to support the indictment (94). As the inhabitants of a parish are in effect themselves the defendants in proceedings connected with the repairs of highways, etc., they are by the general rule of law incompe(85) R. v. Kingsmoor (in error), 2 B. & C. 190; 3 D. & R. 398, S. C.

(86) R. v. St. Giles, Cambridge, 5 M. & S. 260; but see R. v. Ecclesfield, ante; and R. v. West Riding of York, 4 B. & Al. 623.

(87). Hawk. c. 60, ss. 7, 8; R. v. St. Giles, Cambridge, ante.

(88) 1 Hawk. c. 76, s. 8; Austin s case, Ventr. 189; 13 Rep. 33; 2 Saund. 158 f. (n. 9); R. v. St. Giles, Camb., ante

(89) Hawk. c. 76, s. 8.

(90) R. v. Duke of Buccleugh, 1 Salk. 358; R. v. Buckeridge, 4 Mod. 48; 2 Saund. 159 (n); 1 Russ. 325.

(91) Skinner's case, 5 Esp. 219; 1 Russ. 326.

(92) Allanson's case, 1 Lew. C. C. 158, per Hullock, B.

(93) By 5 & 6 Wm. iv. c. 50,

s. 62.

(94) R. V. Hammersmith, 1 Stark. 357; 1 Russ. 334.

EVIDENCE.

Prove that the highway (see ante, p. 146, n.) is out of repair -that the defendant is bound to repair it, ratione tenuræ (see p. 158, n). Rosc. Cr. Ev. 2 ed. 524; Arch. 8 ed. 644.

Prec. of Indict. and Pleas, Arch. 643; Matt. C. L. 494.

OBSERVATIONS.

As to the description of the highway in the indictment, variance, etc., (see ante, p. 150, n.) -the effect of enclosing lands, (see ante, p. 156, n.)· -competency of witnesses, evidence, etc., (see note, infra).

Proof for the defence.]-The defendant may show under the general issue, either that the

tent witnesses (95), but they are now by several statutes made competent (96). It has been held, that rated inhabitants of a parish are rendered competent by 54 Geo. iii. c. 107, s. 9, on an indictment against an individual for the non-repair of a bridge, ratione tenura (97). Where evidence was offered that a person, since deceased, had planted a willow on a spot adjoining the road, on ground of which he was tenant, saying at the same time that he planted it to show where the boundary of the road was when he was a boy; it was held that such declaration was not evidence either as showing reputation or as a statement accompanying an act, or as the admission of an occupier against his own interest (98). Evidence that a parish did not put guard-fences at the side of a road is not receivable on an indictment which charges that the Queen's subjects could not pass as they were wont to do," if no such fences existed before (99). On an issue, whether or not certain land in a district repairing its own roads was a common highway, it is admissible evidence of reputation (though slight) that the inhabitants held a public meeting to consider of repairing such way; and that several of them, since dead, signed a paper on that occasion, stating that the land was not a public highway, there being at the time no litigation on the subject (100). As to the proof of boundaries under the award of commissioners, see ante, p. 156, n, (77). Costs, etc.]-The Court before whom any indictment for not repairing highways, is preferred, may award costs to the prosecutor, to be paid by the person so indicted, if it shall appear to the Court that the defence made to such indictment was frivolous and vexatious (1). And where an indictment has been directed by the justices at sessions, under 5 & 6 W. iv. c. 50, s 95, from the obligation to repair being disputed, the prosecutor is entitled, as a matter of right,

(95) Stark. Ev. 2 ed. 384; R. v. Wandsworth, 1 B. & Al. 66; 15 East, 474; 1 M. & Rob. 286; 1 Ad & E. 744.

4

(96) 54 Geo. iii. c. 107, s. 9; 3 Geo. iv. c. 126, s. 137; Geo. iv. c. 95, s. 84; 5 & 6 Wm. iv. c. 50, s. 100; see Rosc. Cr. Ev. 2 ed. pp. 134, 527; these sections set out. And now by 3 & 4 Vict. c. 26, s. 1. Inhabitants rated or liable to be rated are made competent as witnesses on any trial, in any court whatever.

(97) Per Tindal, C. J., Hayman's case, Mood & M. 401; and

OFFENCE.

PUNISHMENT.

HIGHWAY-continued.

HOMICIDE. (See titles MANSLAUGHTER, Murder.)
HOP-BINDS, destroying.-(See title MALICIOUS INJURIES.)
HORSE-STEALING.—(See title LARCENY, post, p. 166.)
HOUSE-BREAKING —(See titles Burglary, ante, pp. 48, 50;
LARCENY.)

Breaking and entering any dwelling-house, and stealing "therein any chattel, money, or valuable security, to any value whatever." (F).

7 & 8 Geo. IV. c. 29, s. 12.

Transportation for not more than FIFTEEN, nor less than TEN years; or imprisonment not exceeding three years, with or without hard labour, and with or without solitary confinement, such confinement not exceeding one month at any one time, nor three months in any one year; 7 Wm. iv. & 1 Vict. c. 90, ss. 1, 3.

to an order for costs, when the defendants are convicted (2); but not if they are acquitted on the ground that it is not a highway (3).

Pre