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Precedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) online

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said, when and so often as it hath been and shall be necessary ;
to the great damage and common nuisance, etc., through the
same way going, returning, passing, riding, and laboring, and
against, etc.(^^) {Conclude as in book 1^ chapter 3.)

description of the length and breadth of the nuisance, its insertion cannot preju-
dice. 2 Saund. 158, note 7. Objection to the too general description of a
road in an indictment can only be taken by plea in abatement (R. v. Hammer-
smith (Inhab.), 1 Stark. S57), e. */., by stating that the road described in the
plea was equally well known by the description given in the indictment. When
the indictment is against an individual, or select body, on a peculiar obligation
against common riglit, it is not sufficient to state a liability to repair, but it is
necessary to show how that liability arises, as "by reason of the tenure or in-
closure of certain lands ;" or, in the case of an extra-pai-ochial hamlet or hun-
dred not otherwise liable, a usage " from time immemorial." 2 Saund. 158,
note 9; R. w. Kingsmoor (Inhab.), 2 B. & C. 190. The inhabitants of the sev-
eral townships in a parish may be conjointly indicted for not repairing a road
in it. R. t\ Auckland (Inhab. of three townships named), 1 A. & E. 744 ; S. C,
1 M. & Rob. 286 ; see 2 B. & C. IGG, R v. Machynlesh; Dickinson's Q. S. 6th
ed. 402.

(>s) The termini must be proved as laid. State v. Northumberland, 46 N. H.
156 ; State v. Graham, 15 Rich. (S. C.) 310; though see, contra^ State t). Harsh,
6 Blackf. 346.

{() The duty must be averred. State v. King, 13 Ired. 411 ; State v. Com-
missioner, Walker, 368.

(m) See R. v. Heege (Inhab.), 2 Q. B. 128. Custom laid to repair all com-
mon and public highways situate within the said township is not necessarily bad,
but it seems better to add in such a case " that would otherwise be repairable
by the parish comprising such township" (R. v. Hatfield, 4 B. & Al. 75 ; R. i'.
Bridekirck, 11 East, 304; see 1 B. & Al. 352, 35G) ; for that averment does not
make it necessary to prove that there are or have been ancient highways in the
said township. R. v. Barnoldswich (Inhab.), 12 L. J. (M. C.) 44; 42 B. 499,
S. C.

Dickinson's Q. S. 6th ed. 410.

355



(783) OFFEycEs against society.

(782) Against a county for suffering a public bridge to decay.{v)

That on, etc., there was and from thence hitherto hath been
and still is, a certain common and public bridge, commonly
called High-bridge, otherwise Haigh-bridge, situate and being in
the parish of B., in the county of X., in the common highway
leading from the town of B., in the county aforesaid, towards
and unto the town of C, in the same county, being a common
highway for all the good citizens of the said state, on foot and
with their horses, coaches, carts, andother carriages, to go, return,
pass, repass, ride, and labor, and that the said common and pub-
lic bridge, on the said, etc., aforesaid, and continually, from thence
until the day of the taking of this inquisition, at the parish of
B. aforesaid, in the county aforesaid, was and yet is ruinous,
broken, dangerous, and in great decay for want of needful and
necessary upholding, maintaining, amending, and repairing the
same, so that the good citizens of the said state in, upon, and
over the said bridge, on foot and with horses, coaches, carts, and
carriages could not, and cannot pass and repass, ride and labor,
without great danger of their lives and loss of their goods, as
they ought and were accustomed to do, and still of riglit ought
to do: And that the inhabitants of the county of X. aforesaid
of right have been, and still of right are, bound to repair and
amend the said common bridge, when and so often as it shall be
necessary ; to the great damage and common nuisance of all
the said citizens, upon and over the said bridge, on foot and
with their horses, coaches, carts, and other carriages, about their
necessary affairs and business going, returning, passing, riding,
and laboring; against, etc. {Conclude as in book 1, chapter 3.)

(783) Against the inhabitants of a parish for not repairing a
common highir.ay.{w)

That on, etc.,(a:) there was and yet is a certain common and

(r) Dickinson's Q. S. Gth od. 412.

(»/•) Dickinson's Q. S. (jtli e<l. 4o«.

{x) Alh'gation of t lie jintiquity of tlic road is now commonly omitted, and the
lan{.'ua{rc generally runs as al)Ove, or that "long liel'ore, and at tlie time of the
commencement of the nuisance hereinafter nn ntioned, there was, ami of right
ought to be," etc. 3 T. R. 'JG.'j. A way may be ilcscribed as a common high-
way for carts, carriages, etc., though it has been always archecl over, if, though

35d



NUISANCE. (78-4)

ancient. hig;h\vay(?/) leading from, etc., towards and unto, etc.,
used for all tiie state's citizens, with their horses, coaches, carts,
and carriages to go, return, pass, and repass, at their will and
pleasure; and that a certain part of the same common highway
situate, lying, and heing in the parish, etc., of A, B., in the same
{county)^ containing in length, etc., in breadth, etc., on, etc.,(2)
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 amendments, so that the citizens of the state
through the same way, with their horses, coaches, carts, and
carriages could not, during the time aforesaid, nor yet can go,
return, pass, or repass, as they ought and were wont to do: And
that the inhabitants of the parish of A. B. aforesaid, in, etc.,
aforesaid, the said common highway (so in decay) ought to have
repaired and amended, and still of right ought to repair and
amend, when and as often as it should, shall, or may be neces-
sary ; to the great damage and common nuisancefrc) of all the
people of the state through the same highw^ay, going, return-
ing, or passing, and against, etc. {Conclude as in book 1, chap-
ter 3.)

(784) Against a corporation of a toum^ for suffering a watercourse
V)hich supplied the inhabitants with loater, and which they
were bound to cleanse, etc., to be filthy and unwholesome.{b)

That from time whereof the memory of man is not to the
contrary, there was and still is a certain and ancient water-
not high enough to let every highway wagon pass under it, it will admit com-
mon carriages to pass. R. v. l^yon et al., 1 C. & P. 527; R. & M. N. P. C.
150, per Littledale, J. ; Dickinson's Q S. 6th ed. 409.

{u) Meaning a higliway for a// ?/m«HC?- of things. R. v. Hatfield, Cas. t. Hard.
315. A road is not less a hif/hirdi/ because part of it is turnpike road. Reg. v.
Steventon, C. & K. 55 ; Dickinson's Q. S. 6th ed. 409.

(2) Some day about the commencement of the nuisance ; but as to date, see
■\Vh. Cr. L. 8th ed. § 1486; Wh. Cr. PL & Pr. §§ 120-9; supra, pp. 13 et seq.
Only state the termini, wlien tliey can be readily ascertained, and no doubt can
be raised respecting them. Tlie way must be distinctly averred to be witiiin the
district sought to be charged with the repair. R. i'. Pendervyn (Inhab.), 2 T.
R. 513 ; R. V. Bishop's Nuckland (Inhab.), 1 A. & E. 744 ; Dickinson's Q. S.
6th ed. 409.

(a) Necessarij. 1 Hawk. c. 32, p. 692; R. v. Hughes, 4 C. & P. 373 ; Stra.
686-688 ; 16 East, 194 ; 1 Burr. 333 ; 1 Mod. 107 ; R. v. Davey, 5 Esp. 217 ;
Dickinson's Q. S. 6th ed. 409.

(//) Dickinson's Q. S. 6th ed. 418.

357



(784) OFFENCES AGAINST SOCIETY.

course,(c-) commonly called Trout Beck, leading from a certain
place called the corporation dam, in the parish of, etc., in the
county of B., to a certain place called the Falls, in the parish
of, etc., in the suburbs of the town of B. aforesaid, in the county
of B. aforesaid, used by all the people of the said state, for the
time being inhabiting and residing in and about the said par-
ishes of and , to supply them with water for the use
and benefit of themselves and their families; and that a certain
part of the said common and ancient watercourse, in the parish
of aforesaid, in the suburbs of the said town of B., in the
county of B. aforesaid, containing in length five hundred yards,
and in breadth ten feet, on, etc., and continually afterwards until
the day of the taking of this inquisition, at, etc., aforesaid, was
and still is foul, tilled, and choked up with mud, weeds, rubbish,
dirt, and other filth, whereby the course and passage of the
water, which should and ought and before that time was used
and accustomed to run and flow through the same watercourse,
■was during all the time last aforesaid, and still is, so greatly
stopped and obstructed, that the people of the said state inhab-
iting and residing in and about the said parish of during
all the time last aforesaid, were and still are not only deprived of
the benefit and advantages of the water, which, during all the
time last aforesaid, should and ought to have run and flowed,
and still of right ought to run and flow, through the said water-
course, in its usual and accustomed manner, but also the said
mud and other tilth, during all the time last aforesaid, became
and were and still are very offensive and nauseous, and the said
water thereby greatly corrupted, and unwholesome to be drunk
by man, and by means thereof divers noisome and unwdiolesome
smells did from them arise there, so that the air tliereby was
and still is greatly corrupted and infected : And that the mayor,
balitis, and commonalty of the said town of B., in the said
county of B., for the time being,(t/) the said common and an-
cient watercourse, so as aforesaid being foul, choked, and tilled

(c) If a watercourse be stopped, to the nuisance of the county, and none ap-
pear Jxnnid hy pri'srriptinn to clear it, those wlio have tlie rifjlit of fishinp, and
the nti^'lilioriiiff towns who have tin- iiiinuiliate use, may l)e conipelled to remove
the olistnictioii. Hawk. h. 1, c. TTj ; Dickinson's Q. S. Gth ed. 418.

{d) See tlie iiidictnx-nt in K. ;;. Kingston Corporation, 6 M. & S. 305, note;
Dickinson's C^. S. Gtli ed. tl'j.

358



NUISANCE. ("85)

up as aforesaid, ought to empty, cleanse, and scour, and until the
said grievance have, from the time whereof the memory of man
is not to the contrary, emptied, cleansed, and scoured, and have
used and been accustomed to empty, cleanse, and scour, and
still of right ought to empty, cleanse, and scour, when and as
often as the same should or shall be necessary ; yet the said
mayor, balifts, and commonalty have not emptied, cleansed, or
scoured, nor caused to be emptied, cleansed, or scoured, the said
common and ancient watercourse, so being foul, lilled, and
choked up as aforesaid, as they ought to have done, and still of
right ought to do, but during all the time last aforesaid per-
mitted and suft'ered, and still do permit and suffer, the said water-
course to be foul, filled, and choked up as aforesaid, for want of
emptying, cleansing, and scouring the same ; to the great dam-
age and common nuisance of all the people of the said state,
not only there residing and inhabiting, but also going, returning,
passing, and repassing by the same, and against, etc. {Conclude
as in book 1, chapter 3.)

(785) Information in New Hampshire against a town for refusing to

repair^ etc.

That {describing the road,) long before the commencement of
the nuisance hereinafter mentioned, there was, ever since has
been, and still is, a common highway in the town of in

said county, used by all the good citizens of said state in and
through the same to pass'and repass, with their horses, carriages,
and teams, at their will and pleasure; and that said highway,
80 situated in said beginning at {giving the limits),{e)

being rods in width, and in length, was, on, etc., last

past, ever since has been, and still is rocky, rutty, broken, un-
even, ruinous, and in great decay, in want of due reparation
thereof, so that the good citizens of said state, for and during
the time aforesaid, could not and still cannot pass and repass in
and through the said part of said highway so in decay as afore-
said, as they used, were wont, and ought to do, without great
danger of their lives, and loss of their goods ; and that the said
town of during all the time aforesaid, was and still is

(e) These must be proved as laid. State v. Northumberland, 46 N. H. 156;
supra, p. 355.

859



(78G) OFFENCES AGAINST SOCIETY.

by law holden and bound the said part of said highway to re-
pair, whenever the same should or may be necessary ; yet the
said town of during all the time last aforesaid, did refuse

and neglect, and still doth refuse and neglect, to repair the said
highway so in decay as aforesaid, to the great danger and com-
mon nuisance of said good citizens, contrary, etc, and against,
etc. {Conclude as in book 1, chapte?^ 3.)

(786) Against the inhabitants of a town for not r^epairing a
highway in Massachusetts.{f)

That on, etc., there was, and from thence hitherto hath been,
and still is, a public road and common highway in the town of,
etc., leading from in the said town of to in

the same town, for all the citizens of said commonwealth, with
their horses, teams, carts, and carriages to go, return, pass, re-
pass, ride, and labor, at their free will and pleasure ; and that the
aforesaid public road and common highway situated as afore-
said, in the said town of on, etc., was, and from thence
until the day of taking of this inquisition, hath been, and still is
out of repair, ruinous, miry, broken, and incumbered with rocks
and stones, so as to be inconvenient and dangerous to the lives
and safety of the citizens of this commonwealth having occasion
to pass and rei)ass, ride, and labor upon the public highway and
common road aforesaid, with their horses, teams, carts, and car-
riages ; and that the inhabitants of the said town of in
their corporate capacity, are bound and obliged by the laws of
this commonwealth to keej) and maintain the public road and
common way aforesaid in safe, convenient, and complete repair;
yet the said inhabitants, during all the days and times aforesaid,
at, etc., aforesaid, have, and still do neglect and refuse to keep
the said public road and common highway in such repair; to
the great injury and common nuisance of all the citizens of said
commonwealth having occasion to pass, repass, and labor upon

(/) Tliis iiidictiiMMit is taken by Mr. Davis, Proc. 107, from 2 Stark. OCw, and
made coiit'oriiial)!!' to tlic precedents usi'd in Massaeliusetts.

Tlie re[)air of jjublie roads in Mass.'iehiise-tts, says Mr. Davis, I'rec. !{).'>, i.s
provided for by statute of 1 7H(i, eh. 81. If there be brid;;es or causeways on
th(; road com])laine<l of, tlie fact may l»e allejred in the indictment thus : " And
the several bridjres, etc., situated on tlie same road," etc., are out of repair, etc.

360



NUISANCE. (787)

the road aforesaid, witli tlieir horses, teams, carts, and carriages;
against, etc., and contrar}^, etc. {Conclude as in book 1, chapter 3.)

(787) Against a supervisor in Pennsylvania for refusing to reimir

road.

That long before, and at tlie commenceniet of the nuisance
hereinafter mentioned, there was, and of right ought to have
been, and still of right ought to be, a certain public road and
common highway leading from for all the citizens of the

said commonwealth to go, return, pass, and repass, ride, and
labor, on foot and on horseback, atid with their horses, coaches,
carts, and carriages in and along the same, at their free will and
pleasure ; and that a certain part of the said public road and
common highway, situate, lying, and being in the township
of in the county of Columbia aforesaid, of the length

of and of the breadth of feet, and also other parts of

the said public road and common highway in the township
aforesaid, were on, etc., and from thence until the day of the
finding of this inquisition, at the township of aforesaid,

have been and still are so decayed for want of opening and re-
pairing the same, that the citizens of the said commonwealth
travelling along the said public road and common highway, with
their horses, coaches, carts, and carriages, cannot upon the same
so safely pass and travel as of right they ought ; and tliat
late of, etc., and late of, etc., yeomen,(^) were, on, etc., duly

elected by the qualified voters of the township of super-

visors of the roads and public highways of the said township,
to hold their said ofHce for the term of one year, to wit, at the
township aforesaid, at the county aforesaid, and within the
jurisdiction of this court ; and that the said supervisors

as aforesaid, were and are bound and obliged by the laws of
the said commonwealth to keep and maintain the public road
and common highway aforesaid in safe, convenient, and complete
repair; yet the said during all the days and times afore-

said, at township aforesaid, have and still do neglect and

refuse to keep the said public road and common highway in
such repair, to the great damage and common nuisance, etc.,

{q) Defendants with distinct offices cannot be joined. 2 Hawk. c. 25, s. 89 ;
Wli. Cr. PI. & Pr. § 303.

361



(788) OFFENCES AGAINST SOCIETY.

and contrary, etc., Und against, etc. {Conclude as in booh 1, chap-
ter 3.)

(788) Against a supervisor in Pennsylvania for refusing to open a

road^ etc.{h)

That at the county court of general quarter sessions of the
peace and gaol delivery, holden at Philadelphia, in and for the
county of Philadelphia, before P. F., W. R., and I. H., Esqrs.,
and their associates, justices of the same court, on, etc., a certain
public road leading to Oxford Church, and extending thence over
]Sr. and J. D.'s lands to J. F.'s line, thence along the line between
the said F.'s and D.'s land to J. W.'s land, thence on the line be-
tween the said J. F.'s land and land of J. W. and R. W., to a cor-
ner, thence on the line between the lands of the said J. F. and R.
W. to a corner stone, thence between the lands of the said J. F.
and W. to the line of H. F.'s land on Rock Run, thence crossing
the said run over the said FI. F.'s land, leaving part of a road
before that time laid out on bad ground, to the line of land late
S. R.'s, and thence on the line between tlie said R.'s and F.'s
lands, to a road laid out from R. M.'s mill toGermantown,waslaid
out, etc., and confirmed by the said justices at the same sessions,
and the supervisors of the highways of the township and town-
ships through which the said road runs were then and there, by
the same justices, at their said sessions, ordered and directed to
open and clear the same as by law directed ; of which J. S., late
of the said county, yeoman, afterwards, to wit, on, etc., then and
still being a supervisor of the roads and highways in and for
the township of Bristol, in the said county (the said township be-
ing one of the townships through which the said road runs), had
notice; and the inquest aforesaid, upon their oaths and affirma-
tions, do further present, that the said J. S., the duty of his said
office of supervisor of the highways aforesaid, altogether disre-
garding,and well knowing the same road to be laid out as afore-
said, by the authority aforesaid, from the day and year last afore-
said until the day of the finding of this inquisition, at the
township and county aforesaid, hath wholly, unlawfully, and
contemptuously neglected and refused to employ laborers to

(//) '\'\u< count was drawn \)y Wni. Hradlurd, Ks(j., in 17Ht), tliuu attorney
general ot" I'ennsylvania.

302



NUISANCE. (790)

open and clear the same road, and hath vvhoUynegleeted to take
care that the same road should he o[)ened, cleaned, and amended,
as hy law directed, so that the liesj;e citizens of this common-
wealth on and along the same road cannot pass and repass, to
the great damage and common nuisance, etc. {Conclude as in
book 1, chapter 3.)

(789) Against overseer in North Carolina for refusing to repair road.

That on, etc., there was, and from thence hitherto there hath
been, and still is, a certain common and public highway leading
from in the county of towards and unto in the

same county, for all the good people of North Carolina to go,
return, pass, repass, ride, and labor, with their horses, coaches,
carts, and carriages, in and along the same, at their free will and
pleasure, and that on the day aforesaid a certain part of the said
highway, situate and being in the county of aforesaid, ex-

tending from and continuing to in length one hun-

dred yards, and in breadth fifteen feet, was and still is in the
county aforesaid very ruinous, miry, deep, broken, and in great
decay, for want of due and necessary amendment and reparation
of the same, so that the good people of North Carolina, in and
along the same highway, with their horses, carts, and carriages,
could not during the time aforesaid go, return, pass, ride, and
labor, Avithout danger to themselves and the loss of their goods;
and that during all that time was overseer of the said

highway, and ought as overseer to have repaired and amended
the same, but that he unlawfully and negligently refused so to
do, to the common nuisance, etc. {Conclude as in book 1, chap-
ter 3.)

(790) Against commissioner in South Carolina for refusing to
repair road.

That on, etc., there was, and from thence hitherto there hath
been, and still is, a certain common and public road and high-
way, leading from towards and unto for all the good
citizens of the said state to go, return, pass, and repass, ride, and
labor, with their horses, coaches, carts, carriages, and wagons, in
and along the same, at their free will and pleasure ; and that a
certain part of the said common and public road and highway,

863



(791) OFFENCES AGAINST SOCIETY.

situate, lying, and being in the district of aforesaid, ex-

tending from and containing in length divers, to wit,

and in breadth divers, to wit, feet, on the aforesaid

day of in the year last aforesaid, and from thence until

the taking of this inquisition, at the place aforesaid, in the dis-
trict and state aforesaid, was and still is very ruinous, miry,
deep, broken, and in great decay and want of repair and amend-
ment, so that the good citizens of the said state, in and along
the said public road and highw^ay, with their horses, coaches,
carts, carriages, and wagons, could not, during the time afore-
said, nor yet can go, return, pass, and repass, ride, and labor,
without great danger of their lives and loss of their goods ; and
that of, etc., being commissioner of that part of the said com-

mon and public road and highway, so being ruinous, miry, deep,
broken, and in great decay and want of repair and amendment,
as aforesaid, and by law bound to keep the same in good order,
repair, and amendment, wholly and continually, from the afore-
said day of in the year last aforesaid, until the taking
of this inquisition, at the place aforesaid, in the district and state
aforesaid, failed and neglected to repair, amend, and put in good
order the same, to the great injury and common nuisance, etc.
{Conclude as in book 1, chapter 3.)

(791) Against overseer in Alabama for same.

That late of, etc., in said county, on, etc., in the

county aforesaid, did fail and neglect to keep {specifying road)^ the
bridges and causeways therein, within his precinct, clear and in
good repair, and did then and tliere suffer the same to remain
uncleared and out of repair for ten days at one time, to wit, be-
tween the day of last aforesaid, and the day of
in the year of our Lord eighteen hundred and with-
out being hindered by high water, had weather, or other suffi-
cient cause, contrary, etc., and against, etc. {Conclude as in
book 1, chapter 3.)

And tlie grand jurors aforesaid, upon their oath aforesaid, do
furtlier present, that the said late of said county^ overseer

as aforesaid of the road aforesaid, on the day and year last afore-
said, in the county aforesaid, did fail and neglect to set u[) neat
364



LIQUOR NUISANCES. (792)

and permanent mile-posts at the end of each mile, in continua-
tion on that part of the said road vvitliin liia precinct, contrary,
etc., and against, etc. {Conclude as in book 1, chapter 3.)

VIOLATIONS OF LICENSE LAWS.(t)

(792) Presuming to be a common seller of wine, under the Maine

statute.{j )

That B. S., of, etc., on, etc., and on divers other days since that
time and up to the present time, at Bath aforesaid, did take upon
himself and presume to be a common seller of wine, brandy, rum,
and strong liquors by retail, and in less quantity than twenty-



Online LibraryUnknownPrecedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) → online text (page 41 of 85)