a road, &c. out of repair; but merely point out another method, by which the offence may be brought before the court and a petty jury, for conviction and punishment, without the intervention of a grand jury. may jury. But a Presentment also be made in the first instance Presentment by the grand jury, without the concurrence of any justice by a grand. of the peace, of nuisances within their own knowledge. Indeed this proceeding seems the duty of grand juries much more frequently than it is their practice.* After the Presentment has been delivered into court by the foreman of the grand jury, an indictment is framed upon it by the officer of the county, which officer, on a session of the peace, is the clerk of the peace. The Presentment is merely called a bill, and is designed as instructions on which the indictment is to be found.t FORM OF PRESENTMENT BY A GRAND JURY OF A BRIDGE MAINTAIN. County of. .... .... ........ s Be it remembered, that at a general quarter (to wit). session of the peace of our Lord the King, holden at .....for the said county, on ......the day of...... in the said year of the reign of, &c.......before A. B. and C. D. esqrs. and the Rev. P. Q. clerk, and others their companions, justices of our said Lord the King, assigned, &c. &c. &c. It is presented by the oath of M. N., O. P., Q. R., &c. (the names of the grand jurors), good and lawful men of the said county, then and there sworn and charged to inquire for our said Lord the King, and the body of the said county, as followeth that is to say. : ....aforesaid; the jurors for our Sovereign Lord the King upon their oath present, that a certain bridge over the river T., commonly called...... bridge, lying and being in the several parishes of N. and M. in the said county of...... in the King's common highway, there leading from the market town of N. in the said county of...... to the market town of M. in the said county of...... also for and during twenty years last past, being a common King's highway for all the liege subjects of our said Lord the King, with their horses, carts, and carriages, to go, pass, ride, and travel at their pleasure, on, &c. was, and continually from thenceforth hitherto hath been, and still is, in great decay, broken down, and ruinous, so that the liege subjects of our said Lord the King, upon or over the said 4 Lamb. c. 5.-4 Black. Com. 394.-Ibid, and 2 Inst. 739. ↑ 1 Salk, 376.-4 Black. Com. 301. Traverse of a bridge, with their horses, carts, and carriages, could not, and cannot go, pass, ride, and travel, without great danger, to the grievous damage and nuisance of all the liege subjects of our said Lord the King, upon and over the said bridge going, passing, riding, and travelling, against the peace, &c. and that the inhabitants of the county of N. aforesaid, the common bridge aforesaid, (so as aforesaid being in decay,) ought to repair and amend when and so often as it shall be necessary. * And the jurors aforesaid, on their oath aforesaid, further present, that a certain other public bridge over the river T., commonly called ... bridge, lying and being in the said county of N. in the said King's highway, leading from the said market town of.... in the said county of N. to the said market town of T. in the said county of...... at the several times hereinafter mentioned, and now being a common King's highway for all the liege subjects of our said Lord the King, with their horses, carts, and carriages, to go, pass, ride and travel, without great danger, to the grievous damage and nuisance of all the liege subjects of our said Lord the King, upon and over the said bridge going, passing, riding and travelling, and against the peace of our said Lord the King, his crown and dignity. And the jurors aforesaid, on their oath aforesaid, further present, that the inhabitants of the said county of N. the said last-mentioned public and common bridge, (so as last aforesaid being in decay, broken down, and ruinous,) ought to repair and amend when and so often as it shall be necessary. It was formerly held, that the Presentment of a road by a justice could not be traversed; † but a different opinion now prevails and therefore having been received by the court (subject to the observations already made), the proceedings will advance pari passu with those of an indictment, after having been returned by a grand jury: the parish or township presented, or indicted, will have to plead, and to traverse if they think fit, at the ensuing sessions; and all questions of controversy relative to the * It is now so well established, that all public bridges which are of general conveniency, are of common right to be repaired by the whole inhabitants of the county in which they are locally situated (except when such county can show that other persons are liable ratione tenùræ, or in some other way, which must be done by special plea), that it is unnecessary to multiply authorities. The whole law on the subject may be collected from the following cases: R. v. West Riding of Yorkshire, 2 E. R.341. Id. 588. and R. v. Northampton, 2 M. and S. 262. ↑ Dalt. 159.-2 Show. 58. R. v. Justices of Wilts.-1 Black. R. 467.-3 Bur. R. 1530. nuisance complained of, will be submitted (if not prevented by respite, or some other of the measures hereafter to be discussed) to the court and petty jury at the next subsequent session. Rules respect is in pre ing the allega A Presentment against a parish for not repairing a highway must allege that it is within the parish: * and one against a smaller district than a parish must state expressly sentments. how such district is liable, † or judgment will be liable to be arrested: and if a parish be situate part in one county and part in another, and a highway lying in one part be out of repair, a Presentment as well as an indictment against that part only will be void; it must be against the whole parish. And a Presentment as well as an indictment against the parish of B. for ‡ not repairing a road from A. to B. is exclusive of B. and therefore void; nor will it be avoided by a subsequent repugnant allegation, that certain part of the same situate in B. is in decay. § When the parties presented have pleaded and are before Respecting the the court, it is usual to grant respite after respite, on proceedings. motion made in court for that purpose; in order to give them time to remedy the evil complained of; the reason and occasion for these, and such like prosecutions, being much less for the purpose of punishing the offenders, than of abating the nuisance. If the object of the prosecution be obtained, by the removal of the obstruction, or the repair of the decay, as the case may be, the usual and the regular course, in order to obtain a discharge of the Presentment or indictment, is to present a certificate to the court, stating that the object has been accomplished, viz. "that the road has been actually well and sufficiently repaired, and is likely to continue in good condition." || Many considerations enter into the subject of these certificates, as they affect the duty of the justices in session. After first observing, that giving a false certificate is an * R. v. Hartford, Cowp. 112. + R. v. Pendarryn, 2 T. R. 513. indictable offence, it is necessary to see how, and by whom, they are to be given. The great object is to convince the court that the purpose of the prosecution has been obtained, and no specific rule is laid down by what Personal views medium that shall be accomplished. It has long been the by justices. practice for two neighbouring justices to take a personal view, and grant a certificate thereon, and this may be the better method; but there seems no reason why the court may not, when this method is found impracticable or By other per inconvenient, be satisfied by other evidence. In the latter sons. Certificate to be ample. And repair complete. Judgment. case, however, it has been a general, and ought to be an universal rule, that if the testimony of persons, not being justices for the district or division, be accepted, that they shall be present in person, in order to be subject to crossexamination, and that they shall be upon oath. † Nor does it militate against the general propriety of the caution here recommended, that affidavits from persons not present in court have occasionally been accepted. The justices are the sole judges what evidence is satisfactory to them, so as to induce a relaxation of the rigid rules of law and discretion. It is no excuse for the inhabitants of a parish being indicted at common law, that they have done all that is required by statute, for the statutes are only in affirmance and aid of the common law; and therefore it follows that the certificate of repair must be governed by the same consideration, and be ample as to the state of repair. Nor shall the defendants be discharged by submitting to a fine, for a destringas shall go ad infinitum till they sufficiently repair. § If the defendants continue obstinate or negligent, and dọ not obtain a certificate, or move for a respite, the proceed * R. v. Sir Jos. Mawbey, 6 Term R. 619. where it was held that a certificate by justices of the peace, that a highway (indicted) is in repair, is a legal instrument recognized by the courts of law, and admissible in evidence after conviction, when the court are about to impose a fine. And consequently it is illegal to conspire to pervert the course of justice by producing a false certificate in evidence to influence the judgment of the court. + 6 Term R. 619. 1 Hawk. c. 76. § Ib. 60. ings are continued, as in other offences of which the sessions have cognizance to trial, and if conviction ensue, judgment and its consequences of course follow.* Those consequences have been in part noticed already, to which costs are, under some circumstances, to be added. pro By statute it is specially provided that prosecutors, Costs. being parties grieved, or being magistrates, or officers secuting officially in their public capacity, that each conviction, if removed by certiorari, be entitled to costs. I And it has been decided that a person indicted for not repairing a road ratione tenure, shall pay costs to the prosecutor. § And it is provided also by statute || that the court before which any Presentment or indictment for not repairing a highway shall be tried, may award** to the prosecutor, or to the defendants ++ reciprocally, costs, if it shall appear that the prosecution or defence (respectively) was vexatious. If defendants be acquitted (at the assizes) on a prose- New trial. cution, for not repairing a highway, the court of B. R. will not grant a new trial; yet they will, under special circumstances, suspend the entry of judgment, so as to enable the parties to have the question re-considered upon another indictment, without the prejudice of the former judgment. ‡‡ The fine is not returned at the Exchequer, but paid, as the court shall order, to be applied to the repair of the road indicted, according to the statute 13 Geo. 3. c. 78. s. 47. + 5 Wm. & Ma. c. 11. R. v. Kettleworth, 5 T. R. 33. R. v. Taunton St. Mary, 3 M. & S. 465. § R. v. Wingfield, 1 Black. R. 602. 13 Geo. 3. c. 78. A certificate that the defence was vexatious is a sufficient award. R. v. Clapton, 6 T. R. 344. ++ Inhabitants of a parish being indicted or presented, and acquitted, not being a corporate body, cannot take costs; but they may be awarded to their solicitor, who is the ostensible defeuder. R. v. Commerell, 4 M. & S. 203. ‡‡ R. v. Wandsworth, 1 Burnwall & Aldmon's R. 63. Although the determination of this case do not bear a difect reference to the subject immediately under consideration, the affinity of principle is by no means remote. |