to set out a fac simile of a written instrument, when both are necessarily admitted. (s) sworn. The names of the witnesses who are to support the Witnesses incharge before the grand jury should be indorsed on the dorsed and back of the bill copied; and the witnesses should then be sworn in court by the clerk of the peace, ready to go before the grand jury when required. There is no objection to the examination of witnesses at the trial who were not sent before the grand jury; but in cases of felony, where the prosecutor does not think proper to examine any witness whose name appears on the back of the bill, the court will usually, at the desire of the prisoner, require such witness to be placed in the box as the witness of the crown, in order that the prisoner may have the benefit of questioning him by way of cross-examination. In misdemeanors this practice does not prevail. The grand jury, having decided on the bill in the man- Finding. ner we have considered already, (t) return it into court, either indorsed " a true bill," or 66 no true bill," according to their finding. The result is then announced by the clerk of the peace, and the indictment placed on the file. On a bill being found, whether for felony or misdemeanor, if the prisoner be not in custody, the prosecutor may obtain a bench warrant to apprehend him, as a matter of course, on application to the clerk of the peace. §2. OF PROSECUTION BY PRESENTMENT. Presentments may be either by the grand jury at common law for any offences within their own knowledge, or by magistrates under statutable provision. The grand jury may present any offence within their Presentments by own knowledge, without a bill being sent before them at the grand jury. the instance of an individual prosecutor, if the offence be one of which they can legally take cognizance. (u) This presentment is delivered into court, and the clerk of the peace then puts it into the form of an indictment; on which process may issue as in ordinary cases. The presentment, in the first instance, is merely regarded as a bill on which an indictment is framed. (v) 2 Hale, 170. (t) Ante, p. 99. (u) Hawk. B. 2. c. 2. s. 51. 4 Bla. Com. 301. It seems, that in former times, the practice of original presentment by the grand jury was much more frequent than it is at present. The following is the Form of present- Form of a Presentment by a Grand Jury, of a Bridge out of repair, which the County is bound to maintain. ment by a grand jury, of a county bridge out of repair. Second count. -shire, to wit. {of Be it remembered, that at a General Quarter Session of the Peace of our Lord the King, 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. 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 bridge, with their horses, carts, and carriages, could not, and cannot 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, against the peace, &c. and that the inhabitants of the county of 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. (w) 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 in the said King's highway, leading from the said market town of in the said county of 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, on foot, and with their horses, carts, and carriages, to go, pass, ride, and travel, on, &c. was, and continually from thence hitherto hath been, and still is, in great decay, ruinous, and broken, so that the liege subjects of our said Lord the King, upon or over (w) 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. the said bridge, on foot, and with their horses, carts, and carriages, could not and cannot 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 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 ne cessary. But the most usual Presentment at the present day is Presentment by justices of the that made by a justice of the peace under the statute. peace. By the general highway act, 13 Geo. 3. c. 78. s. 24. every justice of assize, justices of the counties palatine of Chester, Lancaster, and Durham, and of the great sessions in Wales, shall have authority by this statute on their own view, and every justice of the peace, either on his own view, or on information on oath given to him by any surveyor of the highways, to make Presentment at their respective assizes, or great session, or in the open General Quarter Sessions, of such respective limit of any highway, causeway, or bridge not well and sufficiently repaired and amended, or of any other default or offence committed or done contrary to that statute. Form of Presentment at the Quarter Sessions by a Justice of the Peace Form of Pre under this statute. day of -shire, At the General Quarter Sessions of the Peace of our to wit. Lord the King, holden for the said county at in the said county on (the day of the week) the 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 misdemeanors 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, &c.) towards and unto within the said (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 sentment by a justice at session. Points relating by justices. day of 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, go, 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, (x) and that the inhabitants of the (parish, &c.) 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 in the year aforesaid. A. B. (L. S.) The Presentment must be made at a court having to presentments jurisdiction over the district in which the road or bridge complained of lies. (y) It must be under the seal of the magistrate who presents; and when delivered duly sealed by him at the sessions, in open court, has all the force of an indictment, found by a grand jury, but it has no more; for the right to traverse it is expressly reserved by the statute. (2) Such presentment cannot be removed by certiorari until it be traversed, and judgment given, except where the alleged duty or obligation of the defendants to repair may be brought in question; (a) of which the Court of King's Bench will judge on the application for the writ. By the act the Court of Quarter Session may direct presentments made before them to be prosecuted at the expense of the district in which the road or bridge presented lies. (b) Proceedings on justices. As when a Presentment is regularly made, the proceedpresentments by ings upon it are exactly similar to those on an indictment; the points as to offences presented will be found under the head "Nuisances," in chapter 6; and those which apply to pleas and traverses in chapter 7. Presentments by constables dis continued. Besides the statutable power of justices to present, it seems that high constables have been accustomed from early times to make presentment of various offences within their districts. It seems, however, from the recent case of "the King v. the Bridgewater and Taunton Canal Company," (c) that such Presentments are of no validity, (x) This form having been prescribed by the statue itself for Presentments for non repair, 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. The King v. Winter, 13 East, R. 258. (y) 13 Geo. 3. c. 78. s. 24. a) Id. ibid. (b) Id. ibid. (z) Id. ibid. unless the constable goes before the grand jury, and makes oath to the truth of the facts which he presents. As much expence and vexation had arisen from Presentments by constables, which they were required to sign at a Petty Sessions, to be delivered to the ensuing Quarter Sessions, it is enacted by 7 and 8 Geo. 4. c. 38. that " no petty constable shall be required at any Petty Session or elsewhere to make, nor shall any high constable be required at any general gaol delivery, Great Session, or General or Quarter Session of the Peace in England, to deliver any Presentment respecting popish recusants, persons absenting themselves from their parish church, or any other place of religious worship licenced by authority, rogues and vagabonds, inmates, retailers of brandy, ingrossers, forestallers, regrators, profane swearers and cursers, servants out of service, felonies and robberies, unlicensed or disorderly alehouses, false weights and measures, highways and bridges, riots, routs, and unlawful assemblies, and whether the poor are well provided for, and the constables are legally chosen and sworn." As this enumeration comprises almost, if not all, matters which ever were presented, it may be fairly assumed that presentments by constables will be discontinued in future. §3. OF PROSECUTION BY INFORMATION. Prosecution by Information at the Quarter Sessions can only be instituted in cases where, by a penal statute, an informer is allowed to take this course to recover the penalty. As it is almost, if not entirely disused, a single form of an Information will suffice for this place. County of { Information. in the General form of Be it remembered that A. B. of (d) county of gentleman, who as well for our Sove- Information at reign Lord the now King, as he himself, doth prosecute on this sessions. behalf, cometh before the justices of our said Lord the King, assigned to keep the peace of our said Lord the King in and for the said county of and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, at their General Quarter Session of the Peace, (e) holden at - in (d) By 18 Eliz. c. 5. informers upon penal statutes are prohibited from suing otherwise than in person or by attorney; therefore an infant cannot proceed by information qui tam. Bul. Ni. Pri. 196. (e) By 21 Jac. 1. c. 4. Informations on penal statutes may be prosecuted before justices of assize, nisi prius, general gaol delivery, oyer and terminer, or of the peace in general, or General Quarter Session in the counties, (or cities, boroughs, and towns corporate, respectively), where the offences were committed (except in a very few excepted cases), at the choice of the parties who shall prosecute. |