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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. Barraclough v. Johnson, 8 A. and E. 99, ante, p. 512.
It seems that the inhabitants of a district, not included within any parish, cannot be bound to repair the highways within such district. This point arose, but was not decided in the case of R. v. Kingsmoor, 2 B. and C. 190 (a), which was an indictment against an extra-parochial hainlet. The court held that it should have been shown on the face of the indictment that the hainlet neither formed part of, nor was connected with, any other larger district, the inhabitants of which were liable to repair the road in question. Upon this point, the judgment for the crown was reversed; but Best, J., observed, "I can find no authority for saying that any thing but a parish can be charged. If the law authorizes no charge except upon parishes, places that are extra-parochial are not, by the general *rule of law liable.” See the observations on this [ *524 | case in Welbeloved on Highways, 81.
Proof of liability to repair-corporations.) A corporation, sole or aggregate, may be found by prescription or usage to repair a highway, without showing that it is in respect either of tenure or of any other consideration. Hawk. P. C. b. 1, c. 76, s. 8; R. v. St. Giles, Cambridge, 5 M. and S. 260.
Proof of liability to repair-private individuals.] A private individual cannot be bound to repair a highway, except in respect of some consideration, and not merely by a general prescription : because no one, it is said, is bound to do what his ancestors have done, except for some special reason, as the having land descending from such ancestors, which are held by such service, &c. Hawk. P. C. b. 1, c. 76, s. 8; Austin's case, 1 Ventr. 189; 13 Rep. 33; R. v. St. Giles, Cambridge, 5 M. and S. 260. Yet an indictment, charging a tenant in fee simple with being liable to repair, by reason of the tenure of his land, is sufficiently certain, without adding that his ancestors, whose estate he has, have always so done, which is implied in the above allegation. Hawk. P. C. b. 1, c. 76, s. 8. In order to exempt a parish, by showing that a private person is bound to repair, it must be shown that the burthen is cast upon such other person, under an obligation equally durable with that which would have bound the parish, and which obligation must arise in respect of some consideration of a nature as durable as the burthen. Per Lord Ellenborough, R. v. St. Giles, Cambridge, 5 M. and S. 260. Where lands, chargeable with the repairs of a bridge or highway, are conveyed to different persons, each of such persons is liable to the charge of all the repairs, and may have contribution from the others; for the law will not suffer the owner to apportion the charge, and thus to render the remedy for the public more difficult. Therefore, where a manor, thus charged, was conveyed to several persons, it was held that a tenant of any parcel, either of the demesnes, or of the services, was liable to the whole repairs. And the grantees are chargeable with the repairs, though the grantor should convey the lands discharged from the burthen, in which case, the grantee
(a) Eng. Com. L. Rep. ix. 60.
has his remedy over against the grantor. Reg. v. Duchess of Buccleugh, | Salk. 358; R. v. Buckeridge, 4 Mod. 48; 2 Saund. 159, (n.); 1 Russell, 325.
Repairing a highway for a length of time will be evidence of a liability to repair ratione tenure. Thus, if a person charged as being bound to repair ratione tenure, pleads that the liability to repair arose from an encroachment which has been removed, and it appears that the road has been repaired by the defendant twenty-five years since the removal of the alleged encroachment, that is presumptive evidence that the defendant repaired ratione tenure generally, and renders it necessary for him to show the time when the encroachment was made. Skinner's case, 5 Esp. [ *525 ] 219; 1 Russell, *326. In determining whether the act of repairing a way is evidence to prove a liability to repair ratione tenure, the nature of the repairs must be regarded. Thus, it is said by Hullock, B., that an adjoining occupier occasionally doing repairs for his own convenience to go and come, is no more like that sort of repair which makes a man liable ratione tenure, than the repair by an individual of a road close to his door, is to the repair of the road outside his gate. Allanson's case, i Lewin, C. C. 158.
By the 5 and 6 Win. 4, c. 50, s. 62, highways repaired by parties ratione tenure, may be made parish highways on payment of an annual sum, to be fixed by the justices.
Proof for the defence-parish.] Upon an indictment against a parish for not repairing, the defendants may show under the plea of not guilty, either that the way in question is not a highway, or that it does not lie within the parish, or that it is not out of repair, for all these are facts which the prosecutor must allege in the indictment, and prove under the plea of not guilty. 3 Saund. 158, (n.) 3; 1 Russell, 331. But where a parish seeks to discharge itself from its liability, by imposing the burthen of repair upon others, this defence must be specially pleaded, and cannot be given in evidence under the general issue. In such special plea, the parish must show with certainty who is liable to the repairs. R. v. St. Andrews, 1 Mod. 112; 3 Salk. 183; 1 Ventr. 256 ; R. v. Hornsey, Carth. 212; Fort. 254 ; Hawk. P. C. b. 1, c. 76, s. 9. See also R. v. Eastington, 5 A. and E. 765 (a), where a plea alleging that a particular township had been accustomed to repair all roads within it," which otherwise would be repairable by the parish at large,” was held bad, in arrest of judgment, because it did not aver that the highway was one which but for the custom would be repairable by the parish at large, and so did not show what party other than the defendants was liable to repair.
But where the burthen of repairs was transferred from the parish by act of parliament, Lord Ellenborough held that this might be shown under a plea of not guilty. R. v. St. George, 3 Campb. 222. Where the parish pleads specially that others are bound to repair, the plea admits the way to be a highway, and the defendants cannot under such plea give evidence that it is not a highway. R. v. Brown, 11 Mod. 273.
In order to prove the liability of a parish to repair, when denied under a special plea, the prosecutor may give in evidence a conviction obtained against the same parish upon another indictment for not repairing, and
(a) Eng. Com. L. Rep. xxxi, 436.
whether such judgment was after verdict or by default, it will be conclusive evidence of the liability of the whole parish to repair. R. v. St. Pancras, Peake, 219; Whitney's case, 7 C. and P. 208 (a). But fraud will be an answer to such evidence. Peake, 219.
A record of acquittal is not admissible as evidence of the non-liability of the parish acquitted, for it might have proceeded upon other grounds than the non-liability of the parish to repair. Ibid.
*But where an indictment has been preferred against a parish ( *526 consisting of several townships, and a conviction has been obtained, but it appears that the defence was made and conducted entirely by the district in which the way lay, without the privity or consent of the other districts, the indictment will be considered as in substance an indictment against that district only, and the others will be permitted to plead the prescription to a subsequent indictment for not repairing the highways in that parish. 2 Saund. 159, c. (n.); R. v. Townsend, Doug. 421. On an indictment for not repairing, against the parish of Eardisland, consisting of three townships, Eardisland, Burton, and Hardwicke, where there was a plea on the part of the township of Burton, that each of the three townships had immemorially repaired its own highways separately, it was held that the records of indictments against the parish generally, for not repairing highways situate in the township of Eardisland, and the township of Hardwicke, with general pleas of not guilty, and convictions thereupon were prima facie evidence to disprove the custom for each township to repair separately, but that evidence was admissible to show that these pleas of not guilty were pleaded only by the inhabitants of the townships of Eardisland and Hardwicke, without the privity of Burton. R. v. Eardisland, 2 Campb. 494.
Proof for the defence_district or private individual.] Where a particular district, not being a parish, or where a private individual by reason of tenure, is indicted for not repairing a highway, as the prosecutor is bound to prove the special ground of their liability, viz. custom, or tenure, under the plea of not guilty, so the defendants are at liberty under that plea to show that no such special grounds exist. In such case, it is not necessary for the defendants after disproving their own liability to go further, and prove the liability of others. But if, as in the case of a parish, they choose, though unnecessarily, to plead the special matter, it has been held that it is not sufficient to traverse their own liability, but that they must show in particular who is bound to repair. R. v. Yarton, 1 Sid. 140; R. 0. Hornsey, Carth. 213; 2 Saund. 159 a (n.) 1; 1 Russell, 332. Where charged ratione tenure, the defendant may show that the tenure originated within the time of memory. Hayman's case, M. and M. 401 (6). ,
Competency of witnesses.) The prosecutor of an indictment against a parish for not repairing, is a competent witness to support the indictment, R. v. Hammersmith, 1 Stark. 357 (c); 1 Russell, 334.
But upon indictments charging individuals with the repairs, inhabitants of the parish in which the lands lie, are not competent witnesses for the prosecution. Thus, upon an information against the defendant for not repairing the highway between Stratford and Bow, none of the persons
(a) Eng. Com. L. Rep. xxxii. 493. (b) Id. xxi. 341.
(c) Id. ii. 425.
who lived in either of these parishes were allowed to give evidence for the prosecution. R. v. Buckeridge, 4 Mod. 48.
*527] *By the general rule of law, the inhabitants of a parish are not competent witnesses for the defendants, for they are themselves in effect defendants in the proceeding. R. v. Wandsworth, 1 B. and A. 66; and see R. v. Wheaton Aston, ante, p. 134. Upon an indictment against a parish for not repairing, Bayley, J., held that a rated inhabitant of another parish, in which it was contended by the defendant, that the highway in question lay, was an incompetent witness to disprove that fact. Anon. cited 15 East, 474. But upon an indictment charging the inhabitants of the township of P. with a liability to repair all roads within their township, it was held that an inhabitant of an adjoining township, within the same parish, was a competent witness to prove that the place in question was a common highway, because, though a conviction would discharge the parish, yet there would be this evidence to show that the road was public, whereby the latter township, from whence the witness came would be charged. R. v. Pelling, Appx. Stark. Ev. 385, 2d ed.
Now by the 54 Geo. 3, c. 107, s. 9, rated inhabitants are rendered competent witnesses “in any matter relating to such rates or cesses.” It has been held by Tindal, C. J., that rated inhabitants of a parish are rendered competent witnesses by the above statute, on an indictment against an individual for the non-repair of a bridge, ratione tenuræ. Hayman's case, M. and M. 401 (a). See a recent decision on this statute, Doe v. Adderley, p. 134.
For the clause in the recent highway acl, rendering inhabitants, &c. competent witnesses in any proceedings under it, see ante, p. 134.
The inhabitant of a hundred also cannot be called to prove any fact in favor of the hundred, though so poor, as upon that account to be excused from the payment of taxes, " for though," says Chief Justice Parker, “poor at present, he may become rich." R. v. Hornsey, 10 Mod. 150. Woolrych on Ways, 265. By the 7 & 8 Geo. 4, c. 31, s. 5, inhabitants are made competent witnesses in any action brought by under that act against any hundred, or other like district.
Particulars of the highways obstructed, &c.) On an indictment for obstructing divers horse and carriage ways, and footpaths, Parke, B., upon the production of an affidavit from the attorney for the defendant, that he was unable to understand all the precise tracks indicted, made an order for the delivery of particulars of the ways in question, which were nine in numbers, seven described, generally, as highways, and two described as footways. R. v. Marquis of Downshire, 4 A. and E. 699 (6).
Costs, &c.) By the 5 & 6 Wm. 4, c. 50, s. 99, 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 said court that the defence made to such indictment was frivolous and vexatious. By s. 99, presentments on account of highways or turnpike roads, being out of repair, are abolished. See further, ante, p. 134, and title, Bridges.
(a) Eng. Com. L. Rep. xxii. 341. (b) Id. xxxi. 169.
Those homicides which are felonies, viz., murder and manslaughter, will, for the convenience of reference, be treated of under separate heads; but as the shades between the various kinds of homicide, are in many cases very faint, and require the circumstances to be stated at large, it has been thought better to collect all the decisions under one head, viz., that of murder, in order to avoid repetition, and to this part of the work, therefore, the reader is referred on the subject of hoinicide in general. It will be useful, however, in this place, to distinguish the nature of the different kinds of homicide, not amounting to felony.
Homicides not felonious, may be divided into three classes, justifiable homicide, excusable homicide, and homicide by misadventure.
Justifiable homicide is where the killing is in consequence of an imperious duty prescribed by law, or is owing to some unavoidable necessity induced by the act of the party killed, without any manner of fault in the party killing. 1 East, P. C. 219; Hawk. P. C. b. 1, c. 28, s. 1, 22.
Excusable homicide is where the party killing is not altogether free from blame, but the necessity which renders it excusable, may be said to be partly induced by his own act. Formerly in this case, it was the practice for the jury to find the fact specially, and upon certifying the record into Chancery, a pardon issued, of course, under the statute of Gloucester, c. 9, and the forfeiture was thereby saved. But latterly it was usual for the jury to find the prisoner not guilty. East, P. C. 220. And now by the 9 Geo. 4, c. 31, s. 10, no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in self-defence, or
other manner without felony. Homicide, by misadventure, is where a man doing a lawful act, without any intention of bodily harm, and after using proper precaution to prevent danger, unfortunately kills another person. The act upon which the death ensues, must be lawful in itself, for if it be malum in se, the case will amount to felony, either murder or manslaughter, according to the circumstances. If it be merely malum prohibitum, as (formerly) the shooting at game by an unqualified person, that will not vary the degree of the offence. The usual examples under this head are-l, where death ensues from innocent recreations ; 2, from moderate and lawful correction in foro domestico; and 3, from acts lawful or indifferent in themselves, done with proper and ordinary caution. Homicide by chance-medley is, strictly, where death ensues from a combat between the parties upon a sudden quarrel; but it is frequently confounded with misadventure or accident. 1 East, P. C. 221.