1770. NIGHTIN GAL V. mentioned, atundertook and promised 2d. Count, (with the like introduction as A second action was afterwards brought, for fraudu lently procuring Mettivier the bankrupt, to transfer the stock, after his bankruptcy, to the defendant: by which means the plaintiffs, the assignees, were deprived of it. But on the trial of this second action, the plaintiffs were nonsuited, without going into the merits of the case; for want of producing a bill in chancery which was necessary to intitle them to read some depositions in the cause in chancery, and without which the plaintiffs were not able to prove any case at all. REX versus the inhabitants of the West Riding of York Wednesday shire. (S. C. 2 Black. 685.) 9th May, 1770, A bridge re THIS HIS was an indictment for not repairing a public pairing of pubbridge, called Glusburne Bridge, situate upon and lic utility, is to over a certain rivulet called Glusburne-Beck, in the be repaired at township of Glusburne in the said West-Riding, in the the public exhigh way leading from Otley to Colne in the county palatine of Lancaster; charging that it was very ruinous and in great decay, for want of repairs, so that the liege subjects to the king could not go travel or pass, either on pence. see 2 Durr. 109. 6 Dur, 196. 2 East. 544, 1770. REX V. W. R. foot or horseback, or with their coaches or carriages: to the common nuisance &c. and against the form of the Statute, and against the peace, &c.; and charging that the inhabitants of the said West-Riding ought to repair YORKSHIRE the same. To which indictment the said inhabitants "pleaded a plea of non debent reparare," because, they say, that a certain public foot-bridge, from time beyond memory till the taking down the same as aftermentioned, was erected made and standing upon and over the said rivulet in the King's Highway, for all the subjects in this realm to go pass and repass over on foot, at all times, at their will and pleasure; and that the inhabitants of the said township of Glusburne, before the time mentioned in the same indictment, to wit the first day of December 1744, took down the said foot-bridge, and in lieu and stead thereof, and in the place where the said foot-bridge had been erected and stood, (a) did erect and set up the said bridge in the said indictment specified; and that the inhabitants of the township of Glusburne aforesaid, time immemorial till the time of taking down the said foot-bridge, bad repaired the same; and from the time of erecting the said bridge, had repaired and still ought to repair the said bridge in the said indictment specified: and they traverse the right (the obligation) of the inhabitants of the West Riding "to repair the said bridge.' And upon that traverse issue is joined. 2595 1 [Vide Callis 89.] for THIS CAUSE came on to be tried at the last assizes holden for the county of York, before Mr. Justice GOULD; when it appeared in evidence, as follows; viz. There was an ancient Foor-bridge over Glusburne-Beck in the indictment mentioned; and a ford for horses; and another for carriages; being in the king's common highway, leading from Otley to Colne aforesaid. The inhabitants of Glusburne had always repaired the said foot-bridge. In the year 1743, the inhabitants of Glusburne, being desirous of having a bridge for CARTS and CARRIAGES over the said stream, did apply for assistance, to the General Quarter-Sessions of the Peace, holden in, and for the said West Riding: and thereupon, on the 11th of January 1743, it was by that Court ordered, "That the 66 treasurer of the said Riding should pay or cause to be (a) This fact was found not to be true, for it was found that the "ancient bridge stood about sixty yards "below the said new bridge, in the same highway." Post 2598, 2597, 2598. 66 1770. REX V "paid to Haworth Currer, Esq.; or as he should direct, "the sum of £10. for the use and benefit of the inhabi"tants of Glusburne in the said Riding, and as a GRATUITY out of the said Riding's stock, to enable the " said inhabitants to build a bridge over a ford called YORKSHIRE "Glusburne Ford, across a water called Glusburne "Beck." 66 By a subsequent order of Sessions, dated 18th July 1744, "reciting that the execution of the abovementioned "order had been stayed and suspended by order of Sessions," it was then ordered, That the treasurer should pay into the hands of Mr. Bradley £10. by him to be laid out in and towards building the sad intended bridge : PROVIDED that nothing therein or in the said former or ders or any of them contained should extend or be construed to extend to charge the inhabitants of the said Riding, in time to come, with the REPARATION of the said intended bridge or any part thereof. (u) W. R. In pursuance of the said order, the sum of £10. was [ 2596 ] paid. The inhabitants of Glusburne, did build a bridge for carts, carriages and horses and foot-passengers; and pulled down the ancient foot-bridge, and sold the materials thereof, and received the money for the same; which bridge so built was of public utility, and used constantly afterwards by all persons passing that road, till the year 1767, when the same was taken away by a flood. The ancient bridge stood about sixty yards below the said new bridge, in the same highway. (b) The said road was made a turnpike road, by virtue of an Act of Parliament in the year 1755; and about four years ago, the sum of six shillings was paid, for a repair done to the new bridge, out of the tolls arising from the said roads: which is all the repairs which have been done at the bridge, since 1759. WHEREUPON the defendants were found GUILTY ; subject to the opinion of this Court on the following question (a) By destroying an antient sea wall or bank by the Commissioners of Sewers, an obligation by prescription or tenure to repair is dissolved or suspended, Callis 283. (b) As this new bridge was built in the same highway, in lieu of the old bridge, which was pulled down; Qu. whether much if any weight ought to have been laid on this fact, though stress appears to have been laid upon it by Aston, Post 2597, and by Blackstone, Post 2593. Vide tamen, 6 Mod. 307. 1770. REX. V. "Whether the inhabitants of the West Ri "ding are obliged to rebuild the said "new bridge." Mr. Wainman argued, that they were,: Mr. John Lee, YORKSHIRE that they were not. W. R. See Ro. Abr. 368. title "bridges." pl. 1, 2. 2 Inst. 701. (on the Statute of 22 H. 8. c. 5. concerning the repairing of decayed bridges in highways, and by whom.) Magna Charta, c. 15. Cro. Car. 365, 366. the case of Langforth Bridge. 13 Co. 33. 1 Sak. 359. Regind v. Inhabitan' Com. Wilts: (where it is said that Northey, "Attorney General cited a case wherein it was adjudged, "that if a private person build a bridge which afterwards "becomes a public convenience, the county is bound to "repair it.") 9 G. 2. c. 29. for building Westminster Bridge (a), by the antepenult clause whereof, it is expressly provided that the counties of Surry and Middieser shall not be subject to the repairing or support "ing of it." 6 Mod. 307. The COURT were all clear, that the RIDING was obliged to repair the new bridge. Mr. Justice ASTON observed, that this new bridge was not built in the same place where the foot (a) A like point with the present, had been argued, Pas. 15 G. 2. B. R. but was never, according to Serj. Hill's recollection determined, in the King against the inhabi tants of the West Riding of Yorkshire; therefore the law was not settled in the 9 G. 2. when the Westminster Bridge Act is mentioned to have been passed, whether counties were liable to repair new bridges, if of public convenience or not, and the doubt was a sufficient reason for inserting the clause; and therefore no inference can fairly be drawn from it; and it is well known that many clauses in Acts of Parliament are inserted ex abundanti cautela, in many cases unnecessarily, and merely out of anxiety, to satisfy scruples; but with respect to Westminster Bridge, there would have been more reason for doubt, than in the principal case, or that of Rex v. Inhabitants of the West Riding, because one argument relied on in that case for the defendant was, that the bridge was unlawfully erected, and therefore might be pulled down, and then consequently, there could be no obligation on any, to repair it; and as this argument could not have been used with respect to Westminster Bridge, the doubt might be conceived to be greater with respect to that than with respect to such as are built without any legal au, thority. bridge stood; but at the distance of more than sixty yards above it. The inhabitants of the county are of common right bound to repair all public bridges; because they are for the benefit of the county. * 1770. REX V. YORKSHIRE W. R. * V. c. 15. By Magna Carta, no town or freeman shall be distrained to make bridges, &c.; except those who were antiently and of right used to make them in the time of king Henry the Second. The inhabitants of Glusburne were † V. 2 Inst. 29. not bound to build this new bridge for carts and carriages; nor are they obliged to repair more than they were before bound to repair: and they never were bound to repair a bridge for carts, carriages, and borses. What they were bound by prescription to repair, was only a foot-bridge. They have built a quite different bridge, in a different place. This new bridge is for the common benefit aad utility of the county: and the Sessions approved of it, and contributed towards it. The case in Ro. Abr. 368. title "bridges," pl. 2. about a mill erected for a person's own benefit, is a diffe rent case. That case is, that if a man erects a mill "for his own profit, and makes a new cut for the water "to come to it, and makes a new bridge over it, and the subjects use to go over this as over a common bridge; "this bridge ought to be repaired by him who has the mill and not by the county; because he erected it for his own "benefit." There, the private emolument continued to the person who erected it: and it was not reasonable for him to make the county contribute to it, whilst the private benefit continued to himself. But this bridge for horses, carts, and carriages, was for the common benefit, use, and utility of the county in general; and therefore is within the rule, that if a man builds a bridge, and it "becomes useful to the county in general, the county shall "repair it." The common law, therefore, attached upon this bridge; and the county ought to repair it. It appears, that the Quarter-Sessions approved of it, and even contributed to it. Mr. Justice WILLES concurred in opinion with Mr. Justice ASTON. It seems to have been originally intended as a bridge for the common public utility of the [2598] county; and to have been so considered by the QuarterSessions; and has ever since been used as such. county have had the advantage of it above twenty years; and they ought to repair it. The Mr. Justice BLACKSTONE also concurred in the same opinion. He made the same observation as Mr. Justice ASTON had done," that this new bridge is sixty yards "distant from the place where the old one stood. And he likewise took notice, that Magna Carta, c. 15. does not apply to this case. The words are-" Nulla Villa |