case the king against the inhabitant OF Hornsey queen where a justice of the  peace present a highway upon his view to be out of repair whether the party be  estopped to plead that it be in repair or may traverse the nonrepair SC post  SC fort SC Mod SC Mod SC Mod SC holt SC Carth SC roll Rep presentment of a  justice of peace upon his view of a certain way in the parish out of repair  the defendant traverse it general non worthy of blame the jury find a special  verdict that it be no common highway but that it be out of repair Mr darnel  for the parish argue that this be find to be no highway make it to be a void  presentment because it be a limit jurisdiction Jones then suppose it be a  indictment yet this may be give in evidence upon not guilty and cite Henry in  trespass for break and enter a warren no warren be a ill plea because it  amount to the general issue holt chief justice you may traverse but that be  only by virtue of a particular clause in the statute but the question be if  when you plead not guilty you do not admit it to be a good presentment and  that it be a highway a parish who be to repair of common right can plead not  guilty and give in evidence that another ought to repair but they must plead  it special for on not guilty you shall not throw it off on another as be hold  by hale chief justice in the case of leatherlane a but if a particular person  be indict for not repair where he be bind thereto ration tenure there upon not  guilty he may give any thing in evidence upon a indictment of a parish for a  highway if find not a highway it be not guilty as in the case of Hampstead for  greenlane but in case of a presentment it go in avoidance of the justice  jurisdiction which this plea do shower KB admit f in the case of Meggot v hill  ld ray holt chief justice be make to say that though a innkeeper can be a  bankrupt yet a victualler may but in the case of sanderson v bowl burr it be  determine that a victualler who sell liquor in his house and only sell they  out of the house in small retail quantity as every publican do be not a object  of the bankrupt law it be admit however that if a victualler deal as a  merchant and sell large quantity of liquor out of door he will be a trader  within the statute see harrison case brown Chan case and in the case of Patman  v Vaughan term Rep it be determine that a innkeeper who sell liquor out of the  house to all customer that apply for it be subject to the bankrupt law however  inconsiderable the extent of such deal and the profit arise from it may be in  the case of priest v pigeon Geo a victualler sell out of his house by retail  two gallon of brandy and five dozen of wine the jury find he a bankrupt and  the court on the ground that it be a proper subject for the jury to determine  refuse a new trial bro c c but by Lord Thurlow chancellor this be a hard case  but see Bartholemew v Sherwood term Rep notorious facts a see burr Yates and  Aston justice be make to say they be not satisfy with the imperfect report of  this case vent Mod Freem and keb and can not think that hale chief justice  have say what he be there represent to have say shower KB er p eyres justice  it be part of his presentment that they ought to repair and then sure they may  give it in evidence as a discharge Adjornatur b