PUNISHMENT. OFFENCE. BRIDGES, PUBLIC—continued. foot-bridge was a distinct structure, and that the county was bound to repair it (7). Where certain townships immemorially repaired a foot-bridge, which they enlarged into a horse-bridge, and finally into a carriage-bridge; it was held that they should still repair it as a foot-bridge, pro rata, and the Riding or County the rest (8). On an indictment against a county for the non-repair of arches, situated more than 300 feet from a bridge, and under which there was a passage of water in times of flood; it was held, on a case reserved, that the county was not liable (9); and it was said that the inhabitants of a county are bound by common law to repair bridges over such water only as answers the description of flumen vel cursus aquæ, that is, water flowing in a channel between banks more or less defined, although such channel may be occasionally dry (10). Highway at each end.] A statutary provision, (11) has defined the length of the highway at each end of a public bridge, which the county by the common law was prima facie bound to repair, and has fixed it at 300 feet; and the county can only excuse themselves on an indictment for not repairing such portion of a highway, by pleading specially, as in the case of the bridge itself, that some or other person is bound to repair by prescription or tenure (12). Dorset and Devon are divided by the Yarty, over which a bridge and 300 feet in Devon were maintained by Dorset; subsequently a small bridge was built in Devon, within the 300 feet repaired by Dorset: held that Devon should repair the new bridge (13). The presumption founded on the prima facie liability of a party who is prescriptively bound to repair a bridge, being also bound to repair 300 feet of the highway at each end, is not rebutted by proof that the party has been only known to repair the fabric of the bridge, and that the repairs only known to have been done to the highway have been performed by Commissioners under a Turnpike-road Act (14). EVIDENCE. OBSERVATIONS. the venire into a neighbouring county (b). The prosecutor may remove the indictment by certiorari, notwithstanding 1 Anne, st. 1, c. 18, s. 5, which only prevents defendants from so doing (c). Indictment, etc.] The indictment must state what sort of bridge it is, whether for carts and carriages, or for horses and footmen only (d), and such statement must correspond with the proof (e); it must also show that the bridge is public, and out of repair (f); and if it be public at particular times only, it must be so stated (g). Evidence for the defence counties.Under the general issue, the defendants can only give evidence in denial of the points, which must be established by the prosecution (h); as, that a district or individual is bound to repair, which is a medium of proof that the bridge is not a public one, for repairs done by an individual are rather to be ascribed to motives of interest in his own property, than to be presumed to be done for the public benefit (i). Upon a (b) R. v. Inhab. of Wilts, 6 Mod. 307; 1 Russ. 358. (c) R. v. Cumberland, 6 T. R. 194; Dom. Proc. 3 Bos. & P. 354. (d) R. v. Sainthill, 2 Ld. Raym. 1175. (e) R. v. Lancashire, 2 Stark, Ev. 2 ed. 192. (f) Andr. 285. (g) 4 Camp. 189. (h) 2 Stark. Ev. 2 ed. 191, (i) R. v. Inhab. of Northampton, 2 M. & S. 262; per Lord Ellenborough. Out of repair.]-Those who are bound to repair bridges must make them of such height and strength, as may be answerable to the course of the water, whether it continue in the old channel or make a new one (15). The county is only chargeable with repairs, and not with the widening or enlarging of a public bridge; for as the county is not bound to make a new bridge, it cannot be to enlarge an old one, which is pro tanto to make a new bridge (16). Who liable for repairs counties as to new bridges-particular districts— corporations, public companies—individuals.]—If none are bound by tenure or prescription to repair a public bridge, then the whole county or franchise shall repair it (17). And the inhabitants of a county being prima facie liable to this burden, it lies upon them, if the fact be so, to show that others are bound to repair (18). Any particular inhabitant of a county may be indicted singly for not repairing, and shall have contribution from the others (19). If a part of a bridge be in one county, and the other part in another county, each shall repair that part of the bridge which is within it (20). As to the repairs of the 300 feet adjoining each end of a bridge which the county must repair, see ante, p. 50, n. The county is liable to repair a public bridge erected by Commissioners under an Act of Parliament, although they are empowered to raise tolls, or have funds to support it (21); and although it has been constantly repaired by them (22). As to what has been held a public bridge, see ante, p. 48, n. New Bridges. As where a new bridge is built, in order to charge the county it must be on a highway, the forbearing by the county to prosecute for any obstruction during (15) 1 Hawk. c. 77, s. 1. (16) R. v. Inhab. of Devon, 4 B & C. 670; but see R. v. Cumberland, 6 T. R. 194. (17) 2 Inst. 701; see 5 Burr. 2594. (18) R. v. Inhab. of Salop, 13 East, 95; R. v. Inhab. of Oxfordshire, 4 B & C. 196. (19) 1 Hawk. c. 77, s. 3; 2 Ld. Raym. 792. (20) 22 Hen. VIII. c. 5, s. 3; see R. v. Inhab. of Machynlleth, 3 D. & R. 388; 2 B. & C. 166. (21) R. v. West Rid. of Yorks. 2 East, 342; and see R. v. Oxfordshire, 4 B. & C. 194: 6 D. & R. 231 ; where it is said by Bayley, J., that the county might look to the trustees under the Act. It is so decided as to Highways. (See the title, Post.) (22) R. v. Oxfordshire, ante. OFFENCE. BRIDGES, PUBLIC-continued. PUNISHMENT. its erection, is an acquiescence by the county in the building of the bridge (23). If a new bridge built by a private individual, become useful to the county in general, the county is bound to repair it (24); but if such a bridge is built in a slight or incommodious manner, it cannot be imposed as a burden on the county, but may be treated as a nuisance, and indicted as such (25). A bridge erected under the authority of an Act of Parliament, cannot be supposed to be erected for other purposes than those of public utility (26). By the 43 Geo. III. c. 59, s. 5, no bridge thereafter to be built in any county, by or at the expense of any individual or private person, body politic or corporate, shall be deemed a county bridge, unless erected in a commodious and substantial manner, under the direction, or to the satisfaction of the county surveyor, etc. A bridge erected after the passing of this Act, by trustees under a local Turnpike Act, and not under the direction of the county surveyor, is not a bridge which the county is bound to repair (27); but where an old bridge was rebuilt without notice to the county surveyor, it was held not to be a bridge erected or built within the statute, and the county was held liable (28). Particular districts.]—A parish, or township, or other known portion of a county, may, by usage and custom, be chargeable to the repair of a bridge erected within it (29); and may be indicted for not repairing, without stating any other ground of liability than immemorial usage (30). The inhabitants of a district cannot be charged ratione tenurœ, for they cannot as such hold lands (31). Where certain townships had immemorially repaired a foot-bridge, which was afterwards altered to a carriage bridge; it was held that they should still repair it as a foot-bridge pro rata (32). Cities, and towns corporate, must repair bridges within their limits (33); but the inhabitants of a town are not bound to repair a bridge out of the town(34). Corporations, public companies.]-The charge may be cast upon a corporation aggregate, either in respect of the tenure of lands, or of a special prescription (35): and as to the latter, though one of their charters within time of legal memory, use (23) R. v. Inhab. of St. Benedict, 4 B. & A. 450; R. v. West Rid. of Yorks. 2 East, 342. (24) Glasburne Bridge case, 5 Burr. 2594; R. v. Inhab. of Glamorgan, 2 East, 356, n. (25) Per Lord Ellenborough, R. v. West Rid. of Yorks. ante. (26) Per Lawrence, J., Id. (27) R. v. Inhab. of Derby, 3 B & Ad. 147; see also, R. v. Lancashire, 2 B. & Ad. 813. (28) R. v. Inhab. of Devon, 5 B. & Ad. 383. (29) Per Cur. R. v. Ecclesfield, 1 B. & A. 359. So where it is within a franchise, 1 Hawk. c. 77, s. 1.: (30) R. v. Inhab. of Hendon, 4 B. & Ad. 628. (31) R. v. Machynlleth, 2 B. & C. 166. 32 R. v. West Rid. of Yorks. 2 East. 353, n. (33) 22 Hen. VIII. c. 5, s. 3. The indictment must show the bridge to be in that town, and it must also show a consideration for the liability of the inhabitants. R. v. Machynlleth, 2 B. & C. 166. (34) See R. v. Gamlingay, 3T.R. 513. (35) 2 Inst. 700; 1 Hawk. c. 77, EVIDENCE. OBSERVATIONS. special plea by a county, that some district or individual is liable to the repairs of the bridge, the evidence on the part of the county to prove the obligation, seems to be the same as upon an indictment against a smaller district (k). Parishes, or other districts-corporations individuals.] As it lies on the prosecutor especially to state the grounds on which such parties are liable, they may negative those parts of the charge under the general issue (1). Competency of witnesses.] By statute (m) “the evidence of any of the inhabitants of the town, corporation, county, riding or division, in which the decayed bridge or highway lies, shall be taken and admitted in all informations and indictments for not repairing decayed bridges and highways, against private persons, or bodies politic or corporate." The costs for a frivolous defence may be obtained by the certificate of the Judge that the defence was frivolous (n). (k) 2 Stark. Ev. 192, 2 ed. (7) 1 Russ. 356; R. v. Inhab. of Norwich, 1 Str. 177; but see R. v. Hendon, 4 B. & Ad. 628. (m) 1 Anne, st. 1, c. 18, s. 13. (n) R. v. Merionethshire, 6Q. B. 343. words of incorporation, and though the bridge may have been repaired out of the funds of a guild; for such repairs will be taken as in ease of the corporation (36). Where a company had built a bridge over a ford, which they had deepened, both being done under an Act of Parliament; it was held, that the Company were bound to rebuild the bridge on its being washed away (37). So also, where a Company had made a cut, and built a bridge over it (38). And the proprietors of a navigation were held liable to the repairs of a bridge which they had built over a river, which an Act empowered them to make navigable, but was silent as to building bridges (39). Individuals.]-In some cases, private individuals by the tenure of their lands are bound to repair public bridges (40); but as ratione tenure implies immemoriality (41), where a party was so charged by reason of the tenure of a mill, built within time of legal memory, the defendant was acquitted (42). Where an individual is so liable, his tenant for years in possession (43), or one of several tenants, may be indicted singly, and shall have contribution from the others (44). Any act of repairing on the part of an indi vidual is prima facie evidence of his liability, unless he proves the contrary (45). Reputation is not evidence on an indictment against an individual for not repairing a bridge ratione tenura (46); but it seems that the finding of a jury, in ancient times, that no one was liable to repair a bridge, is admissible as reputation on a question as to the liability to repair ratione tenure (47); so also, it has been held, that a record of 18 Edw. III. was admissible in evidence to negative any immemorial liability so to repair (48). s. 1; and see R. v. Ecclesfield, 1 B. & A. 359. A corporation must be charged as bound by prescription; 13 Russ. 33. (36) R. v. Mayor, &c., of Stratford, 14 East, 348. (37) R. v. Inhab. of Kent, 13 East, 220. (38) R. v. Inhab. of the parts of Lindsey, 14 East, 317. (39) R. v. Kerrison, 3 M. & S. 526; see also, R. v. Inhab. of Somerset, 16 East, 305. (40) 2 Inst. 700; 1 Hawk. c. 77, s. 1; see R. v. Sutton, 3 Ad. & E. 597; 3 N. & P. 569. The indictment must show where the lands lie, 2 Hale, 181; and the words "by reason of his tenure" should then be inserted, R. v. Kerrison, 1 M. & S. 439. (41) 2 Saund. 158, d. (n). (42) R. v. Hayman, Mo. & M. 401. (43) R. v. Bucknall, 2 Ld. Raym. 792. Quare whether an owner, who is not the occupier of lands charged with the repairs of a bridge, be indictable for non-repair? R v. Sutton, ante. (44) 1 Hawk. c. 77, s. 3; 2 Ld. Raym. ante; 1 Salk. 357; 2 Salk. 77; 6 Mod. 150. (45) 2 Inst. 700. (46) Per Patteson, J. Antrobus's case, 6 C. & P. 790. (47) R. v. Sutton, ante. BURGLARY (A).-See titles HOUSEBREAKING, LARCENY. 7 & 8 Geo. Vic. c. 29, s. 11. Not triable at Quarter Sessions. 5 & 6 Vic. c. 38, s. 1. Transportation for LIFE, or not less than FOURTEEN years; or penal servitude for LIFE, or for FOUR years, and not exceeding TEN years; or imprisonment for any term not exceeding THREE years, with or without hard labour, and with or without solitary confinement; the latter not exceeding ONE month at any one time, nor THREE months in any one year. 7 Wm. IV.; and 1 Vic. c. 86, ss. 3, 7; and 9 & 10 Vic. c. 24, s. 1. 16 & 17 Vic. c. 99, ss. 1 & 4. (A) What a dwelling-house-occupation-house divided.]—A dwelling-house is defined to be a permanent building in which the renter or owner, or his family, dwell and lie (1). A mere tent or booth therefore, in a market or fair is not a dwelling-house for the purpose of burglary (2). To obviate the nice distinctions which had been taken under the former state of the law (3) as to what buildings came within the protection of a dwelling-house," it was enacted by 7 & 8 Geo. IV. c. 29. s. 13, "that no building, although within the same curtilage as the dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house for the purpose of burglary, unless there be a communication between such building and dwelling-house, either immediate or by means of a covered and enclosed passage, leading from the one to the other (4)." Evidence of the breaking and entering such a building will support an indictment charging a breaking and entering of a dwelling-house (5). Where there are doubts as to the nature of a building, a count may be inserted for breaking a building within the curtilage (6). Occupation.]-By any part of the family is sufficient, as by a servant boy only (7); neither is the temporary absence of the owner and his entire family sufficient to deprive a dwelling-house of the (1) A set of chambers in an Inn or Court or College, is a dwelling-house in burglary. 1 Hale, 556; 3 Inst. 164. (2) 1 Hale, 557; 4 Bl. Com. 225; but see Smith's case, 1 M. & Rob. 256. (3) See cases collected, 2 East, P. C. 492; 2 Russ. 13; Rosc. Cr. Ev. 2 ed. 311, 12. (4) For decisions under this sect. see Burrow's case, 1 Mood. C. C. 274; Jenkins's case, R. & R. 244; Somer ville's case, 2 Lew. C. C. 113; see also Turner's case. 6 C. & P. 407; and the offence under this sect. title LARCENY, post. (5) Garland's case, 1 East, P. C. 493, 572; 1 Leach, 144. (6) See the offence, under title LARCENY, post. (7) Westwood's case, R. & R. 495; Stock's case, Id. 185; Wilson's case, Id. 115; Gibbins's case, Id. 442. |