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CHAPTER IV.

OF THE PRINCIPAL CRIMINAL BUSINESS OF SESSIONS.

Of Presentments, Informations, Traverses, Indictments,

Trials, &c.

The business of a session of the peace may, conveniently enough, and without doing any unreasonable violence to grammatical precision, be divided into criminal, and civil. To the former of these divisions it is proposed to confine this chapter, viz. to those subjects which are brought before the court by Presentment, Information, or Indictment, these being the proceedings which lead to the trial by jury; and, on conviction, to punishment either personal, or pecuniary, or both; and that to be inflicted by sentence of the court. First of Presentments :

By the general highway act, * justices of assize, the Presentments. counties palatine, and of the peace, are authorized, on their own view, or upon information on oath before them by a surveyor of the highways, to make Presentment at the assizes, great sessions, or quarter sessions, of any highway, causeway, or bridge, not well and sufficiently repaired and amended, or any other offences against the provision of that statute, within the jurisdiction where the nuisance arises, and that the same shall be efficient, as if presented on oath by the grand jury: The FORM OF A PRESENTMENT OF A JUSTICE OF THE Peace,

ACCORDING TO THE STATUTE. County of ...

At the general quarter session of (to wit).

}the peace of

in the said county, on (Tuesday) the

said county at

# 13 Geo. 3. c. 78.

.... day of ...... in the said year of the reign of ... 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 to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misde. meanours in the said county committed : A. B. esq. one of the justices of our said Lord the King, assigned for the purpose aforesaid, by virtue of an act made in the thirteenth year of the reign of his Majesty King George the Third, “for the amendment and preservation of the highways,(upon his own view), or (upon information, upon oath, to him given by C. D. surveyor of the highways for the (parish, &c.) of ........ in the said county,) doth present, that from the time whereof the memory of man is not to the contrary, there was, and yet is, a certain common and ancient king's highway leading from the town of

.... in the said (county, 8c.) towards and unto ..., within the samne (county) used for all the king's subjects, with their horses, coaches, carts and carriages, to go, return, and pass, at their will: and that a certain part of the same king's common highway, commonly called .... ... situate, lying, and being in the (parish, &c.) of ........ in the same (county) containing in length

-yards, and in breadth .. .feet, on the ... day of ........ in the ........ year of the reign of

and continually afterwards until the present day, was, and yet is, very ruinous, deep, broken, and in great decay, for want of due reparation and amendment, so that the subjects of the king through the same way, with their horses, coaches, carts and carriages, could not, during the time aforesaid, nor yet can, ĝo, return, or pass, as they ought and were wont to do, to the great damage and common nuisance of all the King's subjects through the same highway, going, returning, or passing, and against the peace of our said Lord the King, * and that the inhabitants of the ( parish, fc.) of ...... aforesaid in the county) aforesaid, the said common highway (so in decay) ought to repair and amend, when, and so often as it shall be necessary.

In testimony whereof, the said A, B. to these presents hath set his hand and seal the ........ day of in the year aforesaid.

A. B. (L.S.)

The privilege These Presentments, it must be observed, do not in any of Presentment does not saper- degrée supersede the right which every man has to indict sede the right of indictment.

This form having been prescribed by the statute itself for presentments for non repuir, it need not conclude, “contrary to the statute ;" but for other nuisances and offences, for which no form is prescribed by it, a Presentment must follow the usual rule, by so concluding, and must follow the words of the statute in describing the offence presented. -R. v. Winter, 13 E. R. 238.

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.

But a Presentment may 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

out OREPAIR, which THE COUNTY IS BOUND TO

MAINTAIN. County of ....

Be it remembered, that at a general quarter (to wit).

{ , 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. ti Salk, 376.-4 Black, Com. 3ơi.

bridge, with their horses, carts, and carriages, could not, and cannot go, pass, ride, and travel, without great danger, to the grievous dainage and ouisance 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 pecessary.

Traverse of a
Presentment,

It was formerly held, that the Presentment of a road by a justice could not be traversed; + but a different opinion now prevails f 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 tenure, 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.-- | 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.

A Presentment against a parish for not repairing a high- Rules respectway must allege that it is within the parish : * and one lions in pre 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 I 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. S

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.
1 R. v. Clifton, 5 T. R. 498.
# R. v. Loughton, 3 Smith, 575.

+ R. v. Pendarryn, 2 T. R. 513.
§ R. v. Gamlingay, 3T. R.513.

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