R v Stoughton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 896
COURT OF KING'S BENCH
/ y * : / tX / *ò ^ , [157] 28. rex versus stoughton. Trin. 21 Car. II. Regis, Rol. 8, among the Pleas, of the King. Surrey, to wit.-Otherwise, to wit, in the week next after the Feast of the Translation of St. Thomas the Martyr, that is to say, on the 14th day of July in the 20th year of the reign of our Lord Charles the Second, by the grace of God, of England, Scotland, France, and Ireland King, defender of the faith, &c. at the General Quarter-Session of the Peace of our lord the King holden for the said county of Surrey,(l) at Guildford in the same county, before Arthur Onslow, Henry Hildyard, and William Elliott Esquires, and others their fellows, justices of our said lord the King assigned to keep the peace in the county of Surrey aforesaid, and also to hear and determine divers felonies, trespasses and other misdemeanors in the same county committed, John Windebancke Esq. one of the 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 misdemeanors in the same county committed, with his own hands then delivered into the Court of our said lord the King there before the said justices a certain presentment lately made by the said John Windebancke, upon his the said John Windebancke's own proper knowledge and view, according to the form of the statute iu such cases made and provided.(2) Surrey, to wit, be it remembered that at the General Quarter-Session of the Peace of our lord the King holden for the county of Surrey aforesaid at Guildford in the same county, on Tuesday in the week next after the Feast of the Translation of St. Thomas the Martyr, that is to say, on the 14th day of July in the 20th year of the reign of our Lord Charles the Second, by the grace of God, of England, (1) See 1 Saund. 308, Hex v. Kilderby, note (1). (2) The words, "which saul presentment follows in these words, or in manner and j"mini following, that is to say," seem to be wanting ; at least it is the usual practice now to add them. See 1 Saund. 308, Rex v. Kilderby, note (2).(a) (a) [Presentments are now abolished. See post, 158, note (b).] 2WMS.BAnKD.18g. THIN. 22 CAR. II. REGIS 897 Scotland, France, and Ireland King, defender of the faith, &c. before Arthur Onslow, Henry Hildyard, and William Elliot Esquires, and other their fellows, justices of our [158] said lord the King assigned to keep the peace in the county of Surrey aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the same county committed, came John Windebancke, Esq. one of the justices of our said lord the King assigned to keep the peace in the county aforesaid, and also to hear and determine divers felonies, trespasses, arid other misdemeanors in the same county committed, in his proper person, and upon his the said John Windebancke's own proper knowledge and view, according to form of the (3) statute in such ease (3) This was the statute 5 Eliz. c. 13, s. 9, which continued the statute 2 & 3 P. & M. c. 8; but these, as well as all other statutes relating to the highways in general, were repealed by statute 8 Geo. 3, c. 5, arid afterwards reduced into one Act of Parliament by statute 13 Geo. 3, c. 78, which is now the existing law upon this subject. The last-mentioned Act preserves and enlarges that clause of the 5 Eliz., which gave a power to a justice of peace to present a highway on his own view; for by section 24 of the said statute 13 Geo. 3(4) it ia enacted, that "every Justice of Assize, Justices ot the Counties Palatine of Chester, Lancaster and Durham, and of the Great Sessions in Wales, shall have authority upon his or their own view, and every justice of the peace, either upon his own view, or upon information upon oath to him given by any surveyor of the highways, to make presentment at their respective Assizes, or Great Sessions, or in the open General Quarter Sessions of the Peace, of such respective limit, of any highways, causeway or bridge, not well and sufficiently repaired and amended, or of any other default, or offence done contrary to this Act, arid that all defects in the repair thereof shall be presented in such jurisdiction where the same do lie, and not elsewhere; and no such presentment shall be removed by cerdorari, or otherwise, out of such jurisdiction, till it be traversed and judgment thereupon given, except where the duty or obligation of repairing the said highways, causeways, or bridges, may come in question ; and every such presentment made upon view, or information as aforesaid, shall be as good, and of the same force, strength and effect in the law, as if it had been preferred and found by the oaths of twelve men; and that for every such default or offence so presented, the Justices of Assize, Counties Palatine, and Great Sessions, at their respective Courts, and the justices of the peace, at their General Quarter Sessions, shall have authority to assess such fines as to them shall be thought meet; saving to every person and persons that shall be affected by any such presentment, his, her, or their lawful traverse to the said presentment, as well with respect to the fact of non repair, as to the duty or obligation of repairing the said highways, as they might have had upon any indictment of the same presented and found by a grand jury." The words in italics were added to the saving clause, as it stood in the statute ò5 Eliz. c. 13, s. 9, because it had been doubted whether under that clause the party, against whom such presentment was made, could traverse the fact of want of repair, though the better opinion undoubtedly was that it might be traversed. Carth. 212, Hex v. Harnsey. 1 Show. 270, 291. 4 Mod. 38, S. C. 1 Hawk. P. C. c. 70, s. 72. 3 Burr. 1530, Hex v. Justices of Wiltshire. If an indictment, or presentment, for not repairing a highway be against the inhabitants of a parish at large, who are bound of common right to repair all the highways lying within it, they may upon not guilty shew that it is in repair, or that it is not a highway, or that it does not lie within the parish ; for all these are facts which the prosecutor must allege in his indictment, and prove on the plea of not guilty : and it is a well known rule of law, that whatever a plaintiff or prosecutor is bound to prove on the general isaue pleaded to a declaration or indictment, the defen- (i) [This statute was repealed by the stat. 5 & 6 W. 4, c. 50. And by the 99th section of the latter Act presentments were abolished : for it is thereby enacted that it shall not be lawful "to take or commence any legal proceeding by presentment against the inhabitants of any parish or other person, on account of any highway or .turnpike road being out of repair."] K. B. xiv.-29 898 REX V. STOUGHTON J WMS. SAUND. 158. made and provided then and there in the Court of our said lord the King, before the said justices presented, that a (4) certain common highway lying in the parish (5) of Stoke near Guildford in the county aforesaid, leading between (6) the market town dant may controvert the truth of, by opposite evidence. 1 Str. 181, 182, 183, Sex v. Inhabitants of Norwich.(c) It is holder) that such presentment may be removed by the prosecutor by certiorori before it is traversed and judgment given thereon, Cowp. 78, Bex v. Bodenkam, agreeable to what had been before determined upon the statute 22 Car. 2, c. 12, s. 4, from which that part of the above section was copied. 2 Str. 1209, The King v. Farewell. (4) Though it is often stated in indictments, or presentments, for nuisances to highways, that "from time whereof the memory of man is not to the contrary," or "from time immemorial," there was and is a common and ancient King's highway, yet it is not necessary to do so; for it has been adjudged that it is sufficient to state, both in indictments, and in pleas in trespass justifying under a right of way, in a compendious manner, that it is a highway. 3 T. R. 265, Aspindall v. £rown.(d) (5) The highway must be alleged in the presentment, or indictment, to lie in the parish indicted, otherwise it is not bound to repair it; and if it be not so alleged, the indictment, or presentment is erroneous, and judgment will be reversed. Cowp. Ill, Bex v. Hartford.(e) (6) Here the highway is described as leading between Guildford and Oakingham, so that they are both necessarily excluded. So if the highway be described as leading from one parish unto another, both parishes are excluded. Therefore, where in an indictment against a parish for not repairing a highway, it was stated that, " from time whereof, &c., there was and yet is a common and ancient King's highway leading from the parish of H. in the county of C. towards and unto the parish of G. in the county aforesaid, for all the liege subjects, &c., and that a certain part of the same King's common highway, situate, tying, and being in the said parish of G. containing in length, &c. on, &c. was and yet is in great decay;" after verdict for the prosecutor, judgment was arrested, because it was not stated in the indictment that the highway out of repair lay in the parish of G.; for the word unto the parish of G. excludes that parish, according to 2 Rol. Abr. 81, pi. 19, where it is said, that " if A. be indicted for stopping a highway at D. leading from D. to S., it is not good, because it is not alleged that the highway lies in D.; for from D. excludes it;" and a parish is only bound to repair, if the highway indicted lies within it; and the Court held that this was not aided by the subsequent allegation that a certain part of the same highway situate, &c. in the parish of G., &c. is in decay, &c. 3 T. R. 513, The King \. Gamlingay.(f) See (c) And accordingly in an indictment against a parish for not repairing, though the plea is not guilty only, a certiorari is grantable under 5 W. & M. c. 11, s...
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The Queen against Sir John William Ramsden, Bart
...in support of the rule. The following authorities were cited in the course of the argument: Com. Dig. Chimin (A 4); Rex v. Stoughton (2 Saund. 157); Sir Edward Dunc.omb's Case(c); Begina v. Turweston (16 Q. B. 109); 4 Bac. Ab. 225 (7th ed.), Highways (E); 1 Eussell On Crimes, p. 358 (3d ed.......