the parish, is good primâ facie evidence that the parish are bound to repair it, and is conclusive evidence where the parish only pleads the general issue; if they would throw the burthen upon any other district or individual, they must plead it specially. It is not necessary for this purpose, either that it be stated in the indictment, or proved, that it has been a highway immemorially, or how it became so; it is sufficient to state and prove that it is a public highway. Aspindall v. Brown, 3 T. R 265. And a record of a conviction upon an indictment against the parish for nonrepair of the same way, is conclusive evidence of their liability to repair; R. v. St. Pancras, Peake, R. 286; although, on the other hand, the record of an acquittal would be no evidence for them. Id. The parish having frequently repaired it, also, is (if not explained) strong evidence of their liability to repair.

In the case of a way dedicated to the public, it has been holden in one case that a mere adoption of it by the public, without evidence of some act on the part of the parish shewing their acquiescence in that dedication, was not sufficient to throw the burthen of maintaining the way upon the parish. R. v. St. Benedict, Cambridge, 4 B. & Ald. 447. In a later case, it was holden that no such acquiescence upon the part of the parish is requisite; if the public are allowed to use the road uninterruptedly, it is sufficient; R. v. Leake, 5 B. & Ald. 469; and this last decision seems to coincide with the ancient authorities upon the subject. However the matter is now put out of doubt by the express words of an Act of Parliament, 5 & 6 W. 4, c. 50, s. 23, by which it is enacted, that " no road or occupation way made, or hereafter to be made by and at the expense of any individual or private person, body politic or corporate, nor any roads already set or to be hereafter set out as a private drift way or horsepath in any award of commissioners under an Inclosure Act, shall be deemed or taken to be a highway which the inhabitants of any parish shall be compellable or liable to repair, unless the person, body politic or corporate, proposing to dedicate such highway to the use of the public, shall give three calendar months' previous notice in writing to the surveyor of the parish of his intention to dedicate such highway to the use of the public, describing its situation and extent, and shall make the same in a substantial manner and of the width required by this Act, and to the satisfaction of the said surveyor, and of any two justices of peace of the division in which such highway is situated in petty sessions assembled, who are hereby required, on receiving notice from such person or body politic or corporate, to view the same, and to certify that such highway has been made in a substantial manner, and of the width required by this Act, at the expense of the party requiring such view; which certificate shall be enrolled at the Quarter Sessions holden next after the gianting thereof: then and in such case, after the said

L

highway shall have been used by the public, and duly repaired and kept in repair by the said person, body politic or corporate, for the space of twelve calendar months, such highway shall for ever thereafter be kept in repair by the parish in which it is situate." By the same section, however, it is provided that the surveyor shall call a vestry meeting, and if the inhabitants of the parish at such meeting think that the road will not be of sufficient utility to justify its being repaired by the parish, the person who made and dedicated it may thereupon be summoned before the justices at petty sessions, and the question as to the utility of the highway" shall be determined at the discretion of such justices." Id. The above Act, in reference to roads set out by commissioners under an Inclosure Act, notices only private driftways or horsepaths." It must be observed, however, that a way set out as a private way by such commissioners, is not to be repaired by the parish in which it is situate. R. v. Richards, 8 T. R. 634. And where an Inclosure Act authorized the commissioners to set out public and private roads, the public roads to be repaired as other public roads, and the private roads to be repaired by such persons and in such manner as the commissioners should direct; and the commissioners, after setting out public and private roads, awarded that all the ways, whether public or private, should be repaired in like manner as other public highways are repaired by the laws of this realm: the Court held that the award, in this respect, as far as it related to private ways, was bad, and that no indictment therefore would lie against the parish for the non-repair of one of the private ways. R. v. Cottingham, 6 T. R. 20. But where such commissioners, under a similar power, made the like award, and a way, set out by them as a private road, although of the same width as the public roads, was afterwards commonly used by the public as a carriage road, and for 18 years was repaired by the parish: it was holden that, although the commissioners in the first instance had exceeded their authority, yet it was a question for the jury to determine under the circumstances, whether there had not since been a dedication of the way to the public; and that as the jury had found that question in the affirmative, it must be deemed a public highway. R. v. Wright, 3 B. & Adolph. 681. Where a local Act authorized commissioners to set out a private road in a certain parish, to be used by certain persons instead of an old accommodation road, and the commissioners set it out accordingly, but ever afterwards it was used by the public as a public carriage-way; and the question was, whether the parish was bound to repair it: the Court held that, as there was no evidence that the parish ever acquiesced in the road being dedicated to the public, they were not bound to repair it. R. v. St. Benedict, Cambridge, 4 B. & Ald. 447. And where a public road was made in pursuance of an Act of Parliament, which

continued in force during 21 years, and during that time the parish were bound to do statute duty upon it: the Court held that the liability of the parish to repair, ceased upon the expiration of the Act; after that, it was no longer a public way, and the parish had done no voluntary act indicating that they adopted it, as all they did was by compulsion. R. v. Mellor, 1 B. & Adolph. 32. So, where trustees were empowered to make a turnpike road from A. to B., a distance of 12 miles, and they completed it to the distance of eleven miles and a half, where it joined a public highway, but had not completed the remaining half mile, leading from the highway to B.: the Court held that until the whole of the road was made, the burthen-of repairing it could not be thrown upon the parish. R. v. Cumberworth, 3 B. & Adolph. 108.

If a parish lie partly in one county and partly in another, and a road lying in both parts be out of repair, the whole parish must be indicted; it is not sufficient to indict that part of the parish lying in one county for the non-repair of the road lying in that county, but the whole parish must be indicted, for the whole is liable of common right. R. v. Clifton, 5 T. R. 498. see R. v. Great Broughton, 4 Burr. 2507, cont. And if a part of the road in each county be out of repair, two indictments must be brought against the entire parish, namely, one in one county for the part which is out of repair in that county, and another in the other county for the part which is out of repair in that county. Semb.

It often happens that a highway forms the boundary line between two parishes, and one side of the road is in one parish and the other side in the other; in which case formerly the indictment against each parish must state its liability to repair ad medium filum viæ. See R. v. St. Pancras, Peake, R. 286. But now, by stat. 5 & 6 W. 4, c. 50, s. 58, the justices at a special sessions for the highways, may, upon hearing the surveyors of both parishes, proceed in the manner there pointed out to determine what portion of the road shall be repaired by one parish, and what by the other, dividing the highway into two parts by a transverse line across it, and by their order assigning one part to be repaired by one parish, and the other by the other parish; and the like, where a part of such road is reparable by a body politic or corporate ratione tenure or otherwise; which order, with a plan, shall be filed with the clerk of the peace. And by sect. 59, from and after such order and plan being so filed with the clerk of the peace as aforesaid, such parishes, and body politic or corporate, or person aforesaid respectively, shall be bound as of common right to maintain and keep in repair such parts of such highways so allotted to them as aforesaid, and shall be liable to be proceeded against for neglect of such duty, and shall, in all respects whatsoever, be

liable and subject to all the provisions, regulations, and penalties contained in this Act, and also shall be discharged from the repair of such part of such highway as shall not be included in their respective allotment.”

4. That the part of the highway, mentioned in the indictment as being out of repair, is out of repair, as there stated. And the parish, upon their part, may call witnesses to prove, that the part described was in good and sufficient repair, at the time of the finding of the indictment.

Witnesses.] An inhabitant of the parish is a competent witness for the prosecution, for he is giving testimony against his interest; but he is not a competent witness for the defence, if he be rated to the highways in his parish. R. v. Inhbts. of Bondgate, in Aukland, 1 Ad. & E. 744. see ante, p. 147. and see 5 & 6 W. 4, c. 50, s. 100.

Costs.] Formerly, by stat. 13 G. 3, c. 78, s. 64, provision was made for the granting of costs, to the prosecutor if the defence was frivolous, or to the defendant if the indictment were vexatious. But that statute has been repealed; and now, by stat. 5 & 6 W. 4, c. 50, s. 98, "it shall and may be lawful for the Court before whom any indictment shall be preferred for not repairing highways, to award costs to the prosecutor, to be paid by the person so indicted, if it shall appear to the said Court that the defence made to such indictment was frivolous or vexatious." As to defraying the expenses of the prosecution, see Id. s. 111. 95. By the former statute, the costs were to be awarded by the Court before whom the indictment was tried;" and where the indictment was removed from Sessions by certiorari, and tried before a judge at nisi prius at the assizes, the Court of King's Bench refused to award costs, saying that the judge at nisi prius alone had the authority to award them, and the application should have been made to him. R. v. Chatterton, 5 T. R. 272. But by this Act the costs are to be awarded by the Court before whom the indictment is preferred; and where such an indictment, preferred at sessions, is now removed by certiorari, and tried at the assizes, there will be some difficulty, I fear, in obtaining costs: the judge at nisi prius cannot award them, for the indictment is not, and could not be preferred in his Court; the Court of King's Bench will not and cannot interfere, and the Sessions have no means of judging whether the defence was frivolous or vexatious. Where the judge certified on the back of the record that the defence was frivolous, without also awarding costs in express terms, the Court held that this certificate was in effect an awarding of costs, and sufficient for that purpose. R. v. Clifton, 6 T. R. 344.

Plea, that a particular district in the parish, is bound to repair. Berkshire, Michaelmas Sessions, 1836.

The King v. The Inhabitants of the Parish of

And A. B. and C. D., two of the inhabitants of the said parish of by E. F. their attorney, for themselves and the rest of the inhabitants of the said parish (except the inhabitants of the township of L. within the said parish) come into Court here, and having heard the said indictment read, say, that our Lord the King ought not further to prosecute the said indictment against the inhabitants of the said parish (except the inhabitants of the said township of L. :) because they say, that the inhabitants of the said township 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, when and so often as it hath been or shall be necessary, such and so many of the common highways situate in the said township as would otherwise be reparable and amendable by the inhabitants of the said parish at large. And the said A. B. and C. D. in fact say, that the said part of the said highway in the said indictment mentioned and described to be ruinous, miry, deep, broken, and in great decay, lies and is situate in the said township of L.; by reason whereof the inhabitants of the said township of L. 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 ruinous, miry, deep, broken and in decay, when and so often as it hath been and shall be necessary; and the inhabitants of the said parish at large ought not to be charged with the repairing and amending of the same. And this the said A. B. and C. D. are ready to verify; wherefore they pray judgment, and that they and the rest of the inhabitants of the said parish of (except the inhabitants of the township of L. aforesaid) by the Court here may be dismissed and discharged from the said premises in the said indictment above specified. If that part of the highway, stated to be out of repair, be situate in two or more townships, each of which repairs its own roads, the plea may be framed accordingly; but it must state with certainty what part of the road is within the one township, what within the other. R. v. Bridekirk, 11 East, 304. If the road in question have been a highway immemorially, it should seem that the custom may be pleaded as to this highway alone, without pleading it as to all the other highways within the township. See R. v. W. R. Yorkshire, 4 B. & Ald. 623.

The above plea is framed upon the case of R. v. Ecclesfield, 1 B. & Ald. 348. In that case, it was objected that the parish