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1862.

THE QUEEN

TRAIS and Others.

they have in this case exceeded their power. There must, therefore, be a verdict of guilty entered against Train and his foreman, reserving leave to move on all points of law to enter a verdict of not guilty.

Borill desired to know if he could bring a bill of exceptions.

ERLE, C. J., thought not, for a criminal case.

Lush thought it could be so in a case of misdemeanor like the present.

Finlason, amicus curiæ, suggested that the rule, that there could not lie a bill of exceptions in a criminal case, only applied in a case really criminal, and not in a case in which, though the Crown was a party, the proceeding was in substance civil (a).

ERLE, C. J.-At all events, if a bill of exceptions will lie, it may be taken that there are materials for it.

Verdict of guilty. (a) Vide Vol. II., p. 498 (a); et lic and the Crown which are not post, p. 29(a). It is conceived that crimes. The criterion whether an an indictment for an obstruction to a indictment will lie is not whether the highway is in substance a civil pro- offence or misdemeanor is a crime ceeding. It would be so in the case (for every trespass is a misdemeaof an individual suing for a particular nor), but whether it concerns the damage. The Crown may have public. Hence an indictment will claims or suits of a civil nature, just not lie for a mere private trespass as the subject may have (Co. Inst.); (Rerv. Alkins, 3 Burr. 1706); and and the Crown may also have such what is not of public concern is a suits either on its own behalf, as in mere ciril injury; R. v. Slov, 3 some cases of quo wananto, (those Burr, 1698. It is only when actual relating to royal franchises, or the force is used by a number of persons like,) or relating to the Crown in that a trespass becomes indictable; its character as guardian of the R. v. Johnston, 1 Wils. 315. The public rights; as in cases of man- non-repair of a private road, even damus, or such indictments as re- by a public body, is not indictable, late to matters not really criminal, because it does not concern the but in which the Crown prosecutes public; Rer r. Richards, S T. R. on behalf of the public. All crimes 634. When it was laid down that, concern the Crown and the public: in a criminal case, a person, who but many matters concern the pub- is present in Court, where called as a

1862.

The Queen

TRAIN and Others.

witness, is bound to be sworn and to give his evidence, although he has not been subpænaed; and that an indictment for stopping a way is a criminal case for this purpose (Rex v. Sadler and others, 4 C. & P. 218, LITTLEDALE, J.); the real meaning was, that it was a matter in which the Crown, on behalf of the public, prosecuted. But in the case of a public highway, where an action would lie at the suit of an individual for a particular damage, it was held, that, “consequently, an indictment will lie where the act affects the public;" R. v. Trafford, 1 B. & Adol. 874. Thus the indictinent in such cases, so far from being of a criminal nature, only lies in consequence of the injury

being of a civil character, but such
as concerns the public. The true
criterion of a criminal proceeding
is, in the language of Lord Den-
MAN, C. J., “whether it sounds in
crime and leads to punishment;"
In re Douglas, 3 Q. B. Rep. 825.
In a later case, Coleridge, J., ex-
pressed an opinion, after argument,
and in opposition to an opinion, or
rather a doubt, of CAMPBELL, C. J.,
that an indictment for a nuisance
to a highway was not a criminal
proceeding; Queen v. Russell, 3
E. & B. 942. The mere fact that
the defendants can have a new trial
seems to show that it is not so. In
this very case the defendant moved
for a new trial; why should he not
have had a bill of exceptions?

Coram Wightman, J.
THE QUEEN v. PAGET.

Spring Assizes. INDICTMENT for obstructing a highway.

On an indict. First count, for inclosing it by iron hurdles.

ment for ob

structing a Second count, for erecting thereon fences and inclosures. highway,

where it apThird count, for laying stone, &c. thereon.

pears that the

obstruction has Plea: not guilty.

been removed,

that is substanDenman, Foot and Henniker for the prosecution.

tially an end of

the proceeding, Honyman for the defence.

its object hav

ing been atOn the opening of the case it appeared that, since the tained. indictment was found, the defendant had removed the obstructions; whereupon

WIGHTMAN, J., said, there is now, substantially, nothing to try (a).

(a) The fine being assessed by for obstruction, and being merely the Court, not by the jury, whether nominal, where the repair has been the indictment is for non-repair or or will be done, or the obstruction

1862.

The Queen

PAGET.

It was proposed that the defendant should plead guilty, and a nominal fine be imposed; but to this he objected, as he had acted under a notion that the part of the highway inclosed was his own, it being an open space, between the footway and the metalled road (opposite some cottages of his), but over which it now appeared that the public had the right of highway; and eventually, on an undertaking on bis part not to renew the obstructions, the prosecution agreed to a verdict of

Not guilty. has been or will be removed (R. Mirror of Justice, c. 11, sect. 3; 3 v. Luscombe, 2 Chitty, 214; R. v. Co. Inst., and i Reeve, Hist. Eng. Loughlon, 3 Smith, 575); whence Law, 32. The mere fact of a fine it is conceived that in either case no more shows that an indictment the proceeding is substantially of a is a criminal proceeding than the civil and not a criminal character, ancient fine in trespass. Vide R. the distinction taken in the most v. Chorley, 12 Q. B. 515; new ancient and approved authorities trial allowed on such indictments. being, not whether the Crown is a And see Queen v. Russell, 3 E. & party (for so it is in mandamus and B. 942, where, semble, the dictum quo warrunto), but whether the real of Coleridge, J., is the better end or object of the proceeding is opinion. Et vide Vol. II., p. punishment or reparation. See 498 (a).

Coram Erle, C. J.

MILDRED v. WEAVER. Spring Assizes. m The occasional TRESPASS, for breaking down plaintiff's gates, and user of a farm road by stran- driving carts over his land. gers, chiefly for Pleas: that the road was a public highway, and also a purposes of pleasure, is way by prescription. Issues. evidence of a public rather Bovill, Lush and Hurrell for the plaintiff. than a private way, and may. M. Chambers, Petersdorff, Serjt., and J. T. Clark, for be evidence of a dedication to the defendant. the public as a highway, but the plaintiff was lessee of land and premises, occupied must be well Weighed with by him as a gentleman's residence, but formerly a farm reference to permission, repair, and all other circumstances, tending to show whether the owner ever intended such a dedication, especially if it leads to a place of resort for mere purposes of pleasure.

1862.

MILDRED

WEAVER.

belonging to Archbishop Whitgift's Hospital, near Croydon. The defendant was a farmer, who had a farm on one side of the plaintiff's ground, and had a field on the other side of it, and to which he claimed a right of access with carts over the plaintiff's land by the road or way in question; a road leading from Croydon to the plaintiff's house, at the entrance to which gates had been put up by a former lessee of the plaintiff's farm. It was not, on the part of the plaintiff, disputed that this road was a footway or a bridleway; but the defendant had claimed a right to use it with heavy carts, for carriage of lime to his farm, and, in the assertion of this supposed right, had broken open the gates, wbich had been shut to exclude them.

A former lessee of the farm had made the road for his own use. Persons had been allowed to pass along it on foot or with horses, but heavy carts had always been stopped and turned back, and gates had always been there. In 1838, when one Wood was tenant, permission had been asked to use the road; and in 1848, one Church being tenant, the defendant had agreed to pay something yearly for leave to use it (as was alleged), but, as he said, only to repair it. The parish had never repaired the road.

The warden of Whitgift's Hospital was then called and examined in support of the plaintiff's case. He produced the old plan alluded to, but

Chambers objected to its admissibility.

Erle, C. J., thought that might depend on the object with which it was put in, or the use which was to be made of it. If it was not put in with a view of showing that there was not the road in question, so as to disprove the right asserted by the defendant, it could not be admissible; but for some purposes it might be admissible.

Chambers said he objected to its use for any purpose whatever, whether to refresh the witness's memory or otherwise.

1802.

MILDRED

WEAVER.

Lush examined the witness, so as to elicit that he had the plan from a former tenant of the farm; but this was only eight years ago, and it did not appear who made the plan, nor from what custody it came originally. It was not put in.

Witnesses were called and examined at great length in support of the case for the plaintiff, in order to disprove the alleged user.

The plaintiff had not had the property for more than two years, and since he had it had desired to improve it as a gentleman's residence, and with that view had hardened the road and put it in good condition.

M. Chambers for the defendant, opened that the way was a highway, and called many witnesses in support of the alleged right of way with carts and carriages to a place called Croham Hurst.

It should be mentioned that “Croham Hurst” is an eminence which commands a pleasant prospect, and is therefore a place of resort for parties of pleasure; and, therefore, it was suggested, on the part of the plaintiff in cross-examination, that the use of the road thereto by such parties was permissive only, and with light vehicles, and no evidence of a right, any more than the usual resort to the parks of the archbishop, or of any peer or gentleman of property, for the purposes of pleasure, would prove a legal right to go there, not only on foot, but with carriages and carts.

The defendant was called, and admitted the payment, to the plaintiff, but explained it as having been only as a contribution for the expense of repairs; not as a rent, or acknowledgment, for the user of the way.

The strongest evidence for the defendants, in support of the alleged riglit, was that of the bailitis of former tenants (going back tilty or sixty years), which went to prove the user of the right and the absence of all obstruction. On

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