As a nuisance in not repairing highways is an offence in the nature of a nonfeasance, the principal inquiry upon this subject will be as to the persons who are liable to be called upon to keep them in repair.

The inhabitants of the parish at large are prima facie, and of common right, bound to repair all highways lying within it, unless by prescription, or otherwise, they can throw the burden upon particular persons.(g) And to such an extent is

this obligation, that if the inhabitants of a township bound by prescription to repair the roads within the township be expressly exempted by the provisions of a road Act from the charge of repairing new roads to be made within the township, that charge must necessarily fall upon the rest of the parish.(h) And upon the same principle it was holden, that if particular persons were made chargeable to the repair of such highways by a statute lately made, and become insolvent, the justices of peace might put that charge upon the rest of the inhabitants.(i) And where a statute enacted that the paving of a particular street should be under the care of commissioners, and provided a fund to be applied to that purpose, and another statute, which was passed for paving the streets of the parish, contained a clause that it should not extend to the particular street, it was held that the inhabitants of the parish were not exempted from their common law liability to keep that street in repair; that the duty of repairing might be imposed upon others, and the parish be still liable; and that the parish were under the obligation in the first instance, of seeing that the street was properly paved, and might seek a remedy over against the commissioners.(k) And where a local turnpike Act, empowering the trustees under it to take tolls, directed that the roads should from time to time be repaired by the trustees, out of the money arising by virtue of that Act, it [*495 was holden that this *only made the tolls an auxiliary fund in the hands of the trustees; and that the inhabitants of the township where the road was situate, who by prescription were bound to repair all roads within it, were nevertheless liable to be indicted for the non-repair of the road.(1) And where upon an indictment against a township for the non-repair of a highway it appeared that by the 12 Geo. 1, c. 38, s. 15, the proprietors of a navigation were ordered to make the highway in question and keep it in repair, and were made liable to indictment and fine in case of default, and the 17th section provided that nothing in the Act should excuse the inhabitants of the township from contributing to the repairs with their carts, &c., or otherwise as they were then obliged to do by law; and the jury found that the highway was an ancient highway, and therefore the liability of the township existed at the time the Act passed; the Court of Queen's Bench held that the intention to preserve the common law liability of the township was sufficiently declared, and although the probable intention was that each party should contribute to the repair, and no provision was made for adjusting the proportion of each, the difficulty of apportioning the burden did not create an exemption for either, and therefore an indictment for non-repair lay against the township, (m) and also against the company; for although the expenses of the repairs of the road had exceeded the amount of tolls received, it did not follow that the other resources of the company were not adequate, and, even if they were not, the obligation was imposed without condition, and the liability to indictment for non-repair expressly enacted.(n)

3 Q. B. 223 (43 E. C. L. R.), where it was held, that the company might be indicted by their corporate name for disobedience to an order of justices requiring them to execute works pursuant to a statute.

(g) 1 Hawk. P. C. c. 76, s. 5, 6, 7, 8; Austin's case, 1 Vent. 189; Anon., 1 Lord Raym. 725.

(h) Rex v. Seffield, 8 T. R. 106.

(i) Anon., 1 Lord Raym. 725.

(k) Rex v. St. George, Hanover Square, 3 Campb. 222.

(1) Rex v. Netherthong, 2 B. & A. 179. It was also holden that such inhabitants might, after conviction, apply by motion for relief against the trusteee under the 13 Geo. 3, c. 84, 8. 33. And it was holden also that the 13 Geo. 3, c. 84, s. 63, only referred to diversions under writs of ad quod damnum, and under 13 Geo. 3, c. 70, s. 16. As to the liability to repair, notwithstanding the Act of Parliament, see also Rex v. The Inhabitants of Oxfordshire, 4 B. & C. 194 (10 E. C. L. R.), post, Bridges.

(m) Reg. v. Brightside Bierlow, 13 Q. B. 933 (66 E. C. L. R.). (n) Reg. v. Sheffield Canal Co., 13 Q. B. 913 (66 E. C. L, R.).

No agreement can exonerate a parish from the common law liability to repair; and a count in an indictment against the corporation of Liverpool, stating that they were liable to repair a highway, by virtue of a certain agreement, with the owners of houses alongside of it, was held to be bad, on the gronnd that the inhabitants of the parish, who are primâ facie bound to the repair of all highways within their boundaries, cannot be discharged from such liability by any agreement with others.(o)

Upon an indictment against the township of S., for not repairing a road within it, on a custom alleged and proved that all the townships in the parish repaired their own roads, it was proved that the township was adjacent to the township of N. M. in another parish, and that an agreement had been made, two hundred and fifty years before, between the then owner of the whole of S., and the then owners of the whole of N. M., whereby the boundary between the properties was marked out, and the owner of S. agreed to allow the owners of N. M., and the rest of the inhabitants of N. M., a road through S., of which the owner of S. was to repair half and the owners of N. M. the other half (which was the part *indicted), and *496] that a sufficient lawyer should make further assurance for the performance of the agreement. The owner of S. afterwards filed a bill for a specific performance, but it did not appear what the result of the suit was. As far back as living memory went, the inhabitants of N. M. had repaired the road from the boundary of the townships for the distance mentioned in the agreement within about twenty yards; it was held that this was not evidence for a jury of an instrument binding the owners of N. M. and all claiming through them.(p)

With respect to the repair of roads dedicated to the public by the owner of the soil, although it was once considered that, notwithstanding the use by the public, the parish was not liable to repair, unless there had been on their part some act of acquiescence or adoption ;(q) it was afterwards expressly decided, and is now fully settled, (r) that the inhabitants of a parish were bound to repair all roads within it dedicated to and used by the public, although there were no adoption of such roads by the parish.(s)

But now by the 5 & 6 Will. 4, c. 50, s. 23, "no road or occupation way made or hereafter to be made by and at the expense of any individual or private person, body politic or corporate, nor any roads already set out or to be hereafter set out as a private driftway or horsepath in any award of commissioners under an inclosure Act, shall be deemed or taken to be a highway which the inhabitants of any parish shall be compellable or liable to repair, unless the person, body politic or corporate, proposing to dedicate such highway to the use of the public, shall give three calendar months' previous notice in writing to the surveyor of the parish of his intention to dedicate such highway to the use of the public, describing its situation and extent, and shall have made or shall make the same in a substantial manner, and of the width required by this Act, and to the satisfaction of the said surveyor and of any two justices of the peace of the division in which such highway is situate in petty sessions assembled, who are hereby required, on receiving notice from such person or body politic or corporate to view the same, and to certify that such highway has been made in a substantial manner, and of the width required by this Act, at the expense of the party requiring such view, which certificate shall be enrolled at the quarter sessions holden next after the granting thereof, then and in such case, after the said highway shall have been used by the public, and duly repaired and kept in repair by the said person, body politic or corporate, for the space of twelve calendar months, such highway shall for ever thereafter be kept in repair by the parish in which it is situate: provided nevertheless, that on receipt of such notice as aforesaid the surveyor of the said parish shall call a vestry meeting of the inhabitants of such parish, and such vestry shall deem such high

(0) Rex v. The Mayor, &c., of Liverpool, 3 East 86. And see Bac. Abr. tit. Highways (F.).

(p) Rex v. Scarisbrick, 6 A. & E. 509 (33 E. C. L. R.); 2 N. & M. 583.

(q) Rex v. St. Benedict, 4 B. & A. 450`(7 E. C. L. R.), per Bayley, J.

(r) Reg. v. Horley, 8 Law T. 382.

(8) Rex v. Leake, 5 B. & Ad. 469 (27 E. C. L. R.).

way not to be of sufficient utility to the inhabitants of the said parish to justify its being kept in repair at the expense of the said parish, any one justice of the peace, on the application of the said surveyor, shall summon the party proposing to make *the new highway to appear before the justices at the next special sessions [*497 for the highways to be held in and for the division in which the said intended highway shall be situate; and the question as to the utility as aforesaid of such highway shall be determined at the discretion of such justices."()

This section must have a reasonable construction, and cannot be considered to extinguish roads already public by dedication; otherwise, almost all roads not being immemorial, however important and public, would become extinguished; the term "made" as used in the Act, therefore, applies to a road formed or made, but not completely dedicated by use or otherwise at the passing of the Act; but roads dedicated at that time are out of the operation of the Act. It does not, therefore, apply to a road which had been extinguished by an award under an inclosure Act in 1784, but subsequently used by the public and repaired by a tithing.(u) This section does not apply to a road made by turnpike trustees; for that is not a road made by a person or body proposing to dedicate it; but by persons who had no power to dedicate it. The legislature contemplated the case of a private person making a road for the purpose of dedicating it, or setting out a private driftway under an inclosure Act, and not the case of a turnpike road.(v) And therefore where a road was made by turnpike trustees, and coutinued to be used after the expiration of the Turnpike Act in 1848, it was held that this section did not apply.(w)

This section does not prevent the way from becoming public, but only exempts a parish from the liability to repair the way where the steps required by this section have not been adopted. An action, therefore, may be maintained for obstructing a way dedicated to the public and used by them, although it had never been repaired by the parish, and neither the notice of dedication had been published, nor the certificate given as required by this section.(x) And where a road has been dedicated to the public by a landowner, but the conditions of this section have not been fulfilled, if a positive obstruction be erected in it, the party causing such obstruction is liable for so doing; but if the road be simply unfit for use, from the state of the weather, or from mere want of repair, the public lose the use of it, and neither the landlord nor any one else is liable to the repair of it.(y)

Formerly it was held that if a parish lay in two counties, the inhabitants of that part of the parish in which the road charged to be out of repair lay were bound to repair it, and not the inhabitants of the whole parish.(z) But it has since been decided that if part of a parish be situate in one county and the rest in another, and a highway lying in one part be out of repair, *an indictment [*498 against the inhabitants of that part only is bad: and that in such case the indictment must be against the whole parish.(a) And it appears to have been always considered that the indictment under such circumstances must be preferred in that county wherein the ruinous part of the road lies.(b) If the indictment be

(1) If the justices make an order deciding in conformity with the vestry that the way is not of sufficient utility, an appeal lies by the person dedicating the way to the sessions: Reg. v. Derbyshire, E. B. & E. 69 (96 E. C. L. R.). See Rex v. The Paddington Vestry, 9 B. & C. 456 (17 E. C. L. R.), where a somewhat similar clause in a local Act was brought in question. See Reg. v. Dakenfield, 4 B. & S. 158 (116 E. C. L. R); as to the steps necessary to be taken under the 5 & 6 Will. 4, c. 50, s. 23, and the Public Health Act, 11 & 12 Vict. c. 63, s. 70, to render a road repairable by a parish.

(u) Reg. v. Westmark, 2 M. & Rob. 305, Maule, J. See Reg. v. East Hagbourne, ante, p. 483, where the decision turned on another point, and this point was not noticed. (v) Reg. v. Thomas, 7 E. & B. 399 (90 E. C. L. R.).

(w) Ibid. See the case ante, p. 471.

(x) Roberts v. Hunt, 15 Q. B. 17 (69 E. C. L. R.).

(y) Reg. v. Wilson, 18 Q. B. 348 (83 E. C. L. R.). The fact that the landowner has done repairs since the dedication makes no difference.

(z) Rex v. Weston, 4 Burr. 2507.

(a) Rex v. Clifton, 5 T. R. 498.

(b) Rex v. Clifton, 5 T. R. 498; and Rex v. Weston, supra. In Rex v. Clifton, Lord Kenyon, C. J., in answer to one of the supposed difficulties of this mode of proceeding,

against that part of the parish only which lies in the county in which the indictment is preferred, it must show on what account such part only is chargeable, otherwise it will be bad in substance: and the objection may be taken, even after an issue on the point, whether the inhabitants of that part were bound to repair, and a verdict for the crown. (c)

The 5 & 6 Will. 4, c. 50, s. 58, which, when the boundaries of parishes are in the middle of highways, gives two justices power to divide such highways by a transverse line, has been already noticed (d) The object of that statute was to facilitate the repairing of a highway so situated: and it enacts that the justices may order that the whole of such highway, on both sides, in one of such parts, shall be repaired by one of such parishes; and that the whole of such highway, on both sides, in the other of such parts, shall be repaired by the other of such parishes and that they shall cause their order and plan of the highway to be filed with the clerk of the peace. Provided, nevertheless, "that in the case of any such last-mentioned highway, the repair of any part of which belongs to any body politic or corporate, or to any person, by the reason of tenure of any lands, or otherwise howsoever, the same proceedings may be adopted, but the said body politic or corporate, or person, or some one on their behalf, may appear before such justices, and object to such last-mentioned proceedings, in which case the said justices shall, before they divide such highway as aforesaid, hear and consider the objection so made, and determine the same.'

Sec. 59. "After such order and plan shall be so filed with the clerk of the peace as aforesaid, such parishes and body politic or corporate, or person aforesaid respectively, shall be bound as of common right to maintain and keep in repair such parts of such highways so allotted to them as aforesaid, and shall be liable to be proceeded against for neglect of such duty, and shall in all respects whatsoever be liable and subject to all the provisions, regulations, and penalties contained in this Act, and also shall be discharged from the repair of such part of such highway as shall not be included in their respective allotment."(e) Sec. 61, the statute shall not affect or alter the boundaries of counties, lordships, &c., nor any other division of public or private property, nor the boundaries of parishes, otherwise [*499 than for the purpose of repairing such particular portions of the highways. Where an order was made by two justices for apportioning a highway in the form given by the 34 Geo. 3, c. 64, s. 1,(ƒ) it was held that such order was conclusive as to the fact that part of the highway so apportioned lay in each of the parishes, and that it was not competent for one of the parishes, upon an indictment for not repairing the part allotted to it by the order, to prove that in fact at the time the order was made no portion of such part was in that parish, and therefore the justices had no jurisdiction to make the order, on the ground that, although the statute did not require the justices to find expressly that part of the way is in either parish, yet as they are "to examine" and then "finally determine the matter," that implies that they are to be satisfied as to the situation of the highway in the respective parishes.(g)

said, "On an indictment against a parish for not repairing a road, it is not necessary for the prosecutor to serve every individual in the parish with process; he may compel the ppearance of any two, who live within the county, upon whom the whole fine may be levied; and the rest of the inhabitants must reimburse those two under the general highway Act."

(c) Rex v. Clifton, 5 T. R. 498.

(d) Ante, p. 480.

(e) Sec. 60 provides for the costs in thus apportioning highways; and sec. 61 provides for the manner in which highways repairable by reason of tenure, or otherwise howsoever, may be made parish highways. See the 25 & 26 Vict. c. 61, ss. 34, 35, where there are local boards.

(f) Which contained similar provisions to the 5 & 6 Will. 4, c. 50, s. 58, and is repealed by the latter Act.

(g) Reg. v. Hickling, 7 Q. B. 880 (53 E. C. L. R.). See Reg. v. Perkins, 14 Q. B. 229 (68 E. C. L. R.), that to the jurisdiction under this clause the existence of a boundary on the highway to be divided is a condition precedent, and the Court quashed an order, which had been confirmed at sessions, because on the facts stated it did not appear that there was such a boundary, but this was on the ground that all the facts were brought

Where a road lay in two parishes, and no division and allotment under this statute had been made, it was held that an indictment against one of the parishes for not repairing one side of the road ought to have stated that the parish was liable to repair ad filum viæ; and it seems that in such case it is not sufficient to aver that a certain part of the road (setting out the length and one-half of the breadth) is out of repair, and that the inhabitants, &c., ought to repair it.(h)

Exceptions were taken to an indictment for suffering a highway to be very muddy, and so narrow that people could not pass without danger of their lives; first, that it is no offence for a highway to be dirty in winter; and, secondly, that the parish had no power to widen it, as there was a particular power vested by Act of Parliament in justices of the peace to do so. The indictment was held bad

for want of saying that the way was out of repair; and one of the judges observed, that saying that the way was so narrow that the people could not pass was repugnant to its being "the King's highway;" for that if it had been so narrow, the people could never have passed there time out of mind.()

Where a road indicted led across a small inlet or estuary of a river not far from its mouth, and was not passable at high water, and was usually a soft sludge at ebb; Patteson, J., directed the jury that if they thought the want of repair arose from the nature of the spot over which the road passed, and was occasioned by the river flowing over it at every tide, washing away the materials placed there to form the road, and leaving in their place a deposit of mud, it would be absurd to require the parish to do repairs, which, from the nature of things, must always be *ineffectual.(k) And in the same case the same learned judge held that

where two parishes are separated by a river the presumption is, that the [*500 boundary line is the middle line of the channel.(k)

But though the parish is bound prima facie and of common right to repair the highways within it, yet a particular subdivision of a parish, or particular individuals, may be liable to relieve them from that onus, by reason of prescription, or the inclosure of the land in which the highway lies.

Thus the inhabitants of a district, township, or other division of a parish, and also particular individuals, may be bound to repair a highway by prescription; and it is said, that a corporation aggregate may be charged by a general prescription that it ought and hath used to do it, without showing that it used to do so in respect of the tenure of certain lands, or for any other consideration; because such a corporation never dies, and, therefore, if it were ever bound to such a duty, it must continue to be so; neither is it any plea that the corporation have done it out of charity.(1) But it is said, that such a general prescription is not sufficient to charge a private person; because no man is bound to do a thing which his ancestors have done, unless it be for some special reason; as having lands descended to him holden by such service, &c.(m) And a man cannot be liable to repairs merely as lord of a manor, though it is stated that the lords have repaired it from time whereof, &c.(n) This applies to individual persons only, and not to an aggregate of persons who compose the inhabitants of a district or division in a parish or township in which the road is situate.(0) But it has been holden in a late case, that where a parish is charged with the reparation of a highway, lying in alienâ parochia, a consideration must be stated. To an indictment against a parish for not repairing a highway lying within it, a plea that the inhabitants of another parish have repaired, and been used and accustomed to repair, and of right ought to have repaired," was held ill, and that the plea ought to have shown a considera

before the Court. See Mould v. Williams, 5 Q. B. 469 (48 E. C. L. R.), that an order to remove timber from a highway is conclusive in an action that the place is a highway. (h) Rex v. St. Pancras, Peake Rep. 219.

(i) Rex v. Stretford, 2 Lord Raym. 1169. And it is the same as to a bridge; an indictment does not lie for not widening it: Rex v. Devon, 4 B. & C. 670 (10 E. C. L. R.). (k) Rex v. Landulph, 1 M. & Rob. 393.

(2) 1 Hawkins P. C. c. 76, s, 8; Bac. Abr. tit. Highways (F.).

(m) Id. Ibid.

(n) Lord Raym. 792, 804. It should be laid ratione tenure of the demesnes of the

manor.

(0) Rex v. Ecclesfield, 1 B. & A. 348.

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