and determine such annoyances, being within the limits of their commission; and if the annoyance be presented, then to make process into every shire of the realm, against such as ought to repair the same, and to do further in every behalf as they might do, if the persons or lands chargeable were in the same shire, city or town corporate where the annoyance is. By Stat. 12 Geo. 2. c. 29. s. 13, No money shall be applied to the repair of bridges, until presentment be made by the grand jury at the assizes or sessions, of their insufficiency, inconveniency, or want of reparation. But we have seen (a), that by Stat. 55 Geo. 3. c. 143. s. 5, county bridges, repaired under contract, may be repaired without presentment. As to who may be jurors. - It seemeth that no inhabitant of a county ought to be a juror for the trial of an issue, whether the county be bound to such repairs or not; and therefore the jury must come from some adjacent county (b). What justices may try the indictment.-And it seemeth that the same objection may lie as to the justices, where they are (as it may probably happen) all interested. In which case it seemeth, that the trial shall be in the next county (b). For where an impartial trial cannot be had in the proper county, it shall be tried as near to the same as may be. As in the case of Rex v. The Inhabitants of the County of the City of Norwich (a), concerning a county bridge, the trial was in Suffolk. Witness.-By Stat. 1 Ann. st. 1. c. 18, An inhabitant of the county may be a witness upon the indictment of a public bridge. Fine, &c. And by Section 4, of that Act, No fine, issue, penalty, or forfeiture, upon any presentment or indictment for not repairing bridges, or the highways at the end of bridges, shall be returned into the Exchequer, but shall be paid to the treasurer, to be applied towards the said repairs, and not otherwise. Certiorari.-By Section 5, No presentment or indictment for not repairing bridges or highways at the ends of bridges, shall be removed by certiorari out of the county into any other court. It was decided by the Court of K. B. in the case of Rex v. The Inhabitants of the County of Cumberland (b), and which decision was confirmed, upon appeal, by the House of Lords (c), that the above clause has not taken away from the Crown the power of removing by certiorari an indictment for not repairing a county bridge. And where the right to repair is in dispute, the defendant isat liberty to remove the indictment by certiorari. Thus, upon motion to quash a certiorari to remove an indictment against the defendants at Sessions, for not re (a) 1 Stra. 177, cited in Rex v. Cowle, 2 Burr. 859, 860. So in Rex v. The Inhabitants of the County of Devon, the trial was in the County of Somerset, 14 East, 477. (b) 6 T. R. 194. 370 NATURE AND REPAIR OF PUBLIC BRIDGES. pairing a bridge, it was insisted, that by Stat. 1 Ann. c. 18, the certiorari is taken away. To which it was answered and resolved by the Court, that this Act extended 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 5 & 6 W. & M. c. 11, had allowed the granting a certiorari. And therefore they refused to quash (a). But in such a case the certiorari must be moved for before judgment has been pronounced in the inferior Court. Therefore where, upon an indictment at the Quarter Sessions, for not repairing a bridge, a verdict was found for the Crown, and judgment pronounced accordingly, the Court of K. B. would not allow a certiorari to issue, to remove the indictment for the purpose of taking objections to it. Per Cur. The defendants have thought proper to take the chance of succeeding at the Sessions. They ought clearly to have applied for a certiorari before the trial, and it ought not to issue in this late stage of the proceedings. They can now avail themselves of objections to the indictment by writ of error only (b). 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 return the private Act upon which their order is founded (c). (a) Rex v. The Inhabitants of Hamworth, 2 Str. 900. negoes and Town of Machynlleth, 1 B. & C. 142. CHAPTER V. AS TO THE DIVERSION AND EXTINCTION WE now arrive at a most important and practical branch of the law relating to Highways-that which regulates the diverting of the way into another course, more convenient to the public; or, in case the way be found to be altogether unnecessary, the absolute extinguishment of it. At the common law, indeed, there can be no destruction of the public right. Under this system, a highway must always continue to be a highway. The case of Fowler v. Sanders (a), fully proves, that it cannot be narrowed: neither can it be inclosed. The people have no ability to consent to a relinquishment of any of their rights, except by the agency of their representatives in Parliament. But although by the common law, a public way cannot be destroyed, yet it may be changed from its old course into some other, provided it be equally advantageous to the passengers. The Legislature, however, has supplied the deficiency of the common law in this respect, by enactments, which permit the extinction of highways, under such restrictions as are deemed sufficient to prevent too great an infringement upon the public rights. (a) Cro. Jac. 446. The subject of this Chapter will be considered under the two following heads: - 1st, As to the diversion of highways at the common law; and 2d, As to the diversion and extinction of highways under Acts of Parlia ment. SECTION I. As to the diversion of highways at the common law. It is decided, that an ancient highway cannot be changed, without the king's licence first obtained upon a writ of ad quod damnum, and an inquisition thereon found, that such a change will not be prejudicial to the public (a); and it was said, that were the owner of the soil to change a highway without such authority, he might resume and stop up the new way at his option. And it seemeth that the king's subjects have not such an interest in such new way as will make good a general justification of their going in it as a common highway; but that in an action of trespass, brought by the owner of the land against those who shall go over it, they ought to shew especially, by way of excuse, how the old way was obstructed, and the new one set out (b). And it was considered, that the inhabitants would not be bound to keep watch in such new way, or to make amends for a robbery therein committed, or to repair it (c). In the case of Payne v. Partridge (d), the defendant, who was the owner of a ferry, had built a bridge in the (a) Cro. Car. 266, 267. (b) Cro. Car. 267. Yelv. 141, (c) See 1 Hawk. P. C. c. 76. s. 3. |