Of the plea. : bridge it is; whether for carts and carriages, or for horses or footmen only and if the duty to repair arise by reason of the tenure of certain lands, the indictment must shew where those lands lie. (h) It has been holden, that an indictment charging an individual with the repair of a bridge, by reason of his being owner and proprietor of a certain navigation, is not equivalent to charging him ratione tenure, but is erroneous; and, if judgment be given thereon, it will be reversed upon a writ of error. And it seems that a count, charging an individual by reason of being owner of a navigation under a private act of parliament, must set forth the act. And it is not sufficient to state that such party is chargeable, by being owner and proprietor of the property subject to the charge. (i) In presentments by the grand jury, it is said that there is no occasion to shew who ought to repair; and that it is sufficient if the defect be shewn, and the bridge stated to be public. (k) It is laid down, that it is not sufficient for the defendants in an indictment for not repairing a bridge to excuse themselves by shewing either that they are not bound to repair the whole or any part of the bridge, without shewing what other person is bound to repair it, and that in such case the whole charge shall be laid upon the defendants by reason of their ill plea. (1) But it is submitted that, from analogy to the case of highways, this doctrine must be understood only of indictments against the county, and not of indictments against individuals, or bodies corporate, who are not of common right bound to repair; because, as it lies on the prosecutor specially to state the grounds on which such persons are liable, they may negative these parts of the charge under the general issue. (m) And it has been holden upon an information for not repairing a bridge, that the defendants, if not chargeable of common right, may discharge themselves upon the general issue. (n) But it is clear that the inhabitants of a county, in order to exonerate themselves from the burden of repairing a bridge lying within it, must shew by their plea that some other person is liable to repair. (o) It has, however, been recently decided, that it is competent to the inhabitants of a county, upon the general issue, to give evidence of the bridge having been repaired by private individuals. But this evidence appears to have been considered barely admissible as a medium of proof that the bridge was not a public bridge, which undoubtedly the defendants had a right to prove by every species of evidence: and the court seemed to think that it would have but little effect; though, in order to ascertain whether a bridge be public, the mode of its construction, and the manner of its continuance, may be circumstances which, as they are connected with others, may have much or little weight. (p) (h) 1 Hawk. P. C. c. 77. s. 5. (i) Rex v. Kerrison, 1 M. and S. 435. (k) 8 Chit. Crim. Law, 592. citing Andr. 285. (4) 1 Hawk. P. C. c. 77. s. 4. 1 Bac. Abr. Bridges. I Burn. Just. Bridges, V. (m) 3 Chit. Crim. L. 592. (n) Rex v. the Inhabitants of Nor wich, 1 Str. 177. and see ante, 331, 332. (0) Rex v. the Inhabitants of Wilts, 1 Salk. 359. 2 Lord Raym. 1174. (p) Rex v. the Inhabitants of Northampton, 2 M. and S. 262. If a bishop, &c. hath once or twice of alms repaired a bridge, this binds not: but To an indictment for not repairing a bridge described as lying in two parishes, it is no plea that there has been a verdict and judgment against J. S. finding him liable to repair it ratione tenure, upon a presentment describing it as lying in one of the parishes; for he may be liable to repair only what is in one parish. The information was against the county of Essex for not repairing Dagenham bridge, in the several parishes of Hornchurch and Dagenham; and the plea was that Knatchbull and Fanshaw had been presented for not repairing it ratione tenure of lands in Barking, and that a verdict and judgment had passed against Fanshaw; and to this there was a demurrer, because the presentment stated in the plea described the bridge as in Dagenham parish. And the court said that Fanshaw might be bound to repair what was in Dagenham parish, and the county might be bound to repair the rest; and gave judgment for the King. (a) It is said, that where the defendants plead that an individual ought to repair the bridge mentioned in the indictment, and take a traverse to the charge against themselves, the attorney general, in this special case, may take a traverse upon a traverse, and insist that the defendants are bound to the repairs, and traverse the charge alleged against the individual: and that an issue ought to be taken of such second traverse; and that the attorney-general may afterwards surmise that the defendants are bound to repair it, and that the whole matter shall be tried by an indifferent jury. (q) But where the inhabitants of a county are indicted for not repairing a bridge, and they throw the charge upon another, they ought not to traverse their obligation to repair; as it is a traverse of a matter of law, and might be made the subject of demurrer. (r) Where to an indictment against a riding for not repairing a The plea must public carriage bridge the plea alleged that certain townships had correspond immemorially used to repair the said bridge, it was held that evi- with the facts. dence that the townships had enlarged the bridge to a carriage bridge, which they had before been bound to repair as a foot bridge, would not support the plea. (s) And, upon the same principle, where it was proved that a particular parish was bound by prescription to repair an old wooden foot bridge, used by carriages only in times of flood, and that about forty years ago the trustees of the turnpike road built on the same site a much wider bridge of brick, which had been constantly used ever since by all carriages passing that way; it was holden that these facts did not support a plea pleaded by the county that the parish had immemorially repaired, and still ought to repair, the said bridge. (t) In a case where the county was indicted for not repairing a bridge, and pleaded that one Marsack was liable to repair ratione tenure, it was holden that this plea was not sustained by evi yet it is evidence against him, that he ought to repair, unless he proves the contrary, 2 Inst. 700. (a) Rex v. Essex county, T. Raym. 384. (g) 1 Hawk. P. C. c. 77. s. 5. 1 Bac. Abr. Bridges. (r) Ante, 332. and the authorities there cited. (8) Rex v. the Inhabitants of the West Riding of Yorkshire, 2 East. 353. note (a). (1) Rex v. the Inhabitants of Surry, 2 Campb. 455. The facts would not have availed the county if the plea had been framed differently, as the county was clearly liable to the repair of the new bridge. See ante, 349. Of the trial. Inhabitants of admitted as witnesses in prosecutions against private persons, &c. dence that the estate of Marsuck was part of a larger estate; which part Marsack purchased of the Lord Cadogan, who had retained the rest in his own hands, and had repaired the bridge as well before as after the purchase. (u) The 1 Ann. st. 1. c. 18. s. 5. enacts, that all matters concerning the repairing and amending of bridges and the highways thereunto adjoining shall be determined in the county where they lie, and not elsewhere: but it seems that objection may be made to the justices where they are all interested, and that in such case the trial shall be had in the next county. (w) And no inhabitant of a county ought to be a juror for the trial of an issue, upon the qnestion whether or not the county be bound to repair. (x) So that where the matter concerns the whole county, a suggestion may be made of any other county's being next adjacent: (y) and if the bridge lies within the county of a city, and the question is, whether the county of the city, or the county at large, ought to repair, on a suggestion of these facts on the record, the venire will be awarded into the county adjacent to the larger district. (8) Inhabitants of counties may be witnesses in prosecutions against counties to be private persons or corporate bodies for not repairing bridges. The 1 Ann. stat. 1. c. 18. s. 13. reciting that many private persons, or bodies politic or corporate, were of right obliged to repair decayed bridges, and the highways thereunto adjoining, and that the inhabitants of the county, riding, or division, in which such decayed bridges or highways lay, had not been allowed, upon informations or indictments against such persons or bodies for not repairing them, to be legal witnesses; enacts, that in all informations or indictments in the courts of record at Westminster, or at the assizes or quarter sessions, the evidence of the inhabitants of the town, corporation, county, &c. in which such decayed bridge or highway lies shall be taken and admitted. Even before this statute such evidence had been thought admissible from necessity. (a) Of the judg ment. Of staying the judgment. As a prosecution for a nuisance to a public bridge has for its object the removal of the obstruction, or the effecting of the necessary reparations, the judgment of the Court upon a conviction will generally be regulated by the same principles as those which have been mentioned in relation to the judgment for a nuisance to a highway. (b) The stat. I Ann. stat. 1. c. 18. s. 4. enacts, that no fine, issue, penalty, or forfeiture, upon presentments or indictments for not repairing bridges, or the highways at the ends of bridges, shall be returned into the Exchequer, but shall be paid to the treasurer, to be applied towards the repairs. But this seems only to relate to county bridges. Where a county indicted for not repairing a bridge had pleaded a plea which their evidence did not support, and were in conse (u) Rex v. the Inhabitants of Ox- 6 Mod. 307. and see 1 Saik. 380. 2 Ld. fordshire, 16 East. 223. (w) Rex v. the Inhabitants of Nor- (x) 1 Hawk. P. C. c. 77. s. 6. Raym. 1174. (z) Rex v. the Inhabitants of Norwich, 1 Str. 177. 3 Chit. Crim. L. 593. (a) Rex v. Carpenter, 2 Show. 47. (b) Ante, 335. quence found guilty, but the evidence seemed strongly to shew that they were not liable to repair; the Court of King's Bench, upon a motion for a new trial, or for a stay of judgment against the defendants until another indictment was tried, directed a rule to be drawn up for staying the judgment upon payment of the costs of the prosecution: and Lord Ellenborough, C. J., added that, if the public exigency required it, the county must repair without prejudice to their case; and Le Blanc, J., said, that the county might proceed to indict the parties whom they contended to be liable. (c) rari. The 1 Ann. st. 1. c. 18. s. 5. enacts that no presentment or in- Of the certio dictment for not repairing bridges, or the highways at the ends of bridges, shall be removed by certiorari out of the county into any other court. But it has been decided that, notwithstanding these general words of the statute, an indictment for not repairing a bridge may be removed by certiorari at the instance of the prosecutor. (d) And it has been resolved that this clause of the act extends only to bridges where the county is charged to repair; and that where a private person or parish is charged, and the right will come in question, the act of 5 W. & M. c. 11. had allowed the granting a certiorari. (e) A certiorari lies to remove an order made by the justices concerning the repair of a bridge, pursuant to a private act of parliament; and the justices ought to retain the private act upon which their order is founded. (ƒ) (c) Rex v. the Inhabitants of Oxfordshire, 16 East. 223. (d) Rex v. the Inhabitants of Cumberland, 6 T. R. 194. The case was afterwards brought before the House of Lords by a writ of error; and the judgment was affirmed, 3 Bos. & Pul. 354. And see ante, 334. (e) Rex v. the Inhabitants of Ham- 360 CHAPTER THE THIRTY-FIRST. OF OBSTRUCTING PROCESS, AND OF disobedienCE TO ORDERS OF A party opposing an arrest upon criminal process be comes particeps criminis. SECT. I. Of Obstructing Process. THE obstructing the execution of lawful process is an offence against public justice of a very high and presumptuous nature; and more particularly so when the obstruction is of an arrest upon criminal process. So that it has been holden that the party opposing an arrest upon criminal process becomes thereby particeps criminis; that is, an accessory in felony, and a principal in high treason.(a) And it should seem that the giving assistance to a person suspected of felony and pursued by the officers of justice, in order to enable such person to avoid being arrested, is an offence of the degree of misdemeanor, as being an obstruction to the course of public justice. Thus, in a late case, an indictment was preferred against the defendant for a misdemeanor in the obstruction of public justice by rendering assistance to one Olive, who was suspected of forgery and pursued by the officers of justice, in order to enable Olive to avoid being arrested. It appeared in evidence that Olive had committed a forgery, as stated in the indictment; and had afterwards, in a state of desperation, thrown himself from the top of a house, by which he was greatly hurt; and that the defendant, who was a relation and commiserated his wretched condition, conveyed him secretly on board a barge from Gloucester to Bristol, and was actively employed at the latter place in endeavouring to enable him to escape from this country in a West (a) 4 Bla. Com. 128. 2 Hawk. P. C. c. 17. s. 1., where Hawkins submits that it is reasonable to understand the books which seem to contradict this opinion to intend no more than that it is not felony in the party himself, who is attacked in order to be arrested, to save himself from the arrest by such resistance. |