Equity Courts. COURT OF APPEAL IN CHANCERY. Reported by E. STEWART ROCKE and H. PEAT, Esqre., Answer March 10 and 12. (Before the LORDS JUSTICES.) SAULL v. BRowne. Insufficiency Discovery before establishing right to decree. The plaintiff who, after her husband's death, had for some time carried on his business in partnership with the defendant B., by her bill alleged that B. had commenced and carried on a business on his own account with assets belonging to her deceased husband's estate, and that the defendant F., with notice of this, entered into partnership with B., and made large profits, and she prayed for a declaration that the assets and profits of the business belonged to the estate of her deceased husband. The defendants were interrogated whether they, or either of them, had jointly or separately drawn out of the business for their own account any moneys in respect of capital, profits, or otherwise, and were required to set forth the particulars of all moneys so drawn out, and to distinguish such of the moneys as were drawn out in respect of profits. The defendant F. submitted that he was not bound to answer this interrogatory till the plaintiff had established her right to a decree : Held (affirming the decision of the Master of the Rolls), that he was bound to answer it. THIS was an appeal by the defendant Findlay from an order of the Master of the Rolls allowing exceptions to his answer. Thomas Saull, by his will, dated the 25th Aug. 1855, bequeathed certain leasehold property in Aldersgate-street, where he carried on the business of a wine and spirit merchant, and all the trade fixtures, stock in trade, and book debts connected with the business, to his wife Sarah Saull, the plaintiff, his nephew William Saull, and John Prout (who disclaimed), upon trust during the life of Sarah Saull to permit her and his son William Devonshire Saull to continue and carry on the said business as they should think fit. And he appointed the plaintiff, William Saull and John Prout, executors of his will. The testator died in Oct. 1855; and from that date down to Jan. 1858, the business was carried on under the powers contained in the will. The bill alleged that in 1858 William Saull, by strong pressure, induced the plaintiff to admit the defendants Browne and Godfrey as partners in the business for fourteen years, from the 1st Jan. 1858, and that by the terms of the partnership deed the business was to be carried on in Aldersgate-street under the firm of Saull and Co.; the plaintiff was to be a sleeping partner, and Browne and Godfrey were to be the managing partners. This partnership was dissolved in Dec. 1871. In May 1872, the defendant Browne commenced business as a wine and spirit merchant in Worship-st., under the firm of W. J. Browne and Co., and in the following Oct. he took the defendant Findlay in partnership, and in June 1873 a deed of partnership was executed by Browne, Godfrey, and Findlay. Vol. XXX, N. S., 767. [CHAN. The bill alleged that on the dissolution of the firm of Saull and Co., the defendants Godfrey and Browne in collusion, arranged a scheme for transferring the Aldersgate-street business and the goodwill thereof, to the firm of W. J. Browne and Co. for their own benefit, and that the Worshipstreet business had been commenced and carried on by means of moneys and assets improperly drawn out of the Aldersgate-street business, and by means of the improper withdrawal of customers from and the appropriation of the goodwill of the Aldersgate-street business; and that by means of various contrivances, Godfrey and Browne had really effected a complete transfer of the Aldersgate-street business and its assets to the firm of W. J. Browne and Co. in Worship-street, and that Findlay had notice of all this when he joined the firm of W. J. Browne and Co. The bill also alleged that the defendants Godfrey Browne and Findlay, trading under the firm of W. J. Browne and Co., had used and traded with the assets of the testator's business, and had appropriated the goodwill of such business, and had realised large profits thereby, and that the assets of the Worship-street business, or of the firm of W. J. Browne and Co., constituted part of the testator's assets, and that under the circumstances the Worship-street business and the goodwill thereof ought to be deemed and treated as belonging to the testator's estate, and that such of the defendants, Godfrey, Browne, and Findlay, as had commenced and carried on the Worship-street business, ought to be deemed and treated as having commenced and carried on, and as being possessed of, the same in trust and for the benefit of the testator's estate; and that the defendants, Godfrey, Browne, and Findlay, ought to be decreed to account for all profits realised by the business, and to transfer the business and its assets as the court should direct, for the benefit of the persons interested in the testator's estate; and the bill prayed that it might be declared that the goodwill of the Worship-street business, and so much of the assets as represented assets removed from the Aldersgatestreet business, and all profits arising from the use of the goodwill of the testator's business or the use of his assets, constituted part of the testator's estate, and the bill also prayed for the usual accounts and inquiries. One of the interrogatories (the only one material to the purposes of the present report) required Findlay to answer whether the defendants, Godfrey, Browne, and Findlay, or any of them jointly had, or any of them separately had, drawn out of the Worship-street business, or out of the assets of the partnership of W. J. Browne and Co., any money for their or his own account, either in respect of capital advanced, profits, or otherwise howsoever, and to set forth the particulars of all moneys so drawn out, and to distinguish such of the moneys so drawn out as were drawn out in respect of profits. The defendant Findlay, by his answer, denied that he had notice of any improper dealing with the Aldersgate-street business, but admitted that some wine was purchased from that business; and in the reply to the interrogatory above set forth, he answered that he was advised that uniess and until the plaintiff had established her right to a decree in the suit, he was not compellable to answer the interrogatory relating to the moneys drawn by the partners respectively from the Worship-street business, or any part thereof. To this answer the plaintiff excepted. The Master of the Rolls having allowed the exception, Findlay appealed from his decision. Marten, Q.C. and Russell Roberts, for the appellant. The general rule that when a defendant submits to answer he must answer fully is not always strictly enforced, but where, as in this case, the discovery sought can be of no assistance to the plaintiff in obtaining a decree, and the plaintiff's right to a decree is disputed, the court generally uses its discretion as to ordering discovery in favour of the defendant, especially when the plaintiff's right to relief depends upon the allegation of a great number of facts, so that it is impossible for the defendant to put in a plea : Turner v Bayley, 10 L. T. Rep. N. S. 155; 4 De G. J. De la Rue v. Dickinson, 3 K. & J. 388; Kettlewell v. Barstow, 27 L. T. Rep. N. S. 258; [Lord Justice MELLISH referred to Elmer v. Creasy (29 L. T. Rep. N. S. 632; L. Rep. 9 Ch. 69.)] Without calling upon Locock Webb (with him Southgate, Q.C.), who appeared for the plaintiff. Lord Justice JAMES said: I am of opinion that this exception was properly taken, and that the Master of the Rolls was right in holding that the defendant is compellable to answer. The rule is quite clear that when a defendant submits to answer he must answer fully, unless he can make out an exceptional case; as, for instance, that the discovery is sought vexatiously or oppressively, or that it will be burdensome or injurious to the defendant to give it, or that in all probability it may never be used at all. As was said in the case of Elmer v. Creasy (29 L. T. Rep. N. S. 634; L. Rep. 9 Ch. 73): "The court may be trusted to exercise a proper control over any attempt on the part of the plaintiff to press for any such minuteness of discovery as would be either vexatious or unreasonable, as, indeed, it can do in every case in which it is satisfied that any kind of discovery is required vexatiously or oppressively." In the present case, I am not satisfied that the discovery sought is immaterial, vexatious, or oppressive; and in fact it may, as it seems to me, be very material to the issue to be tried at the hearing. The case made by the plaintiff is this: that she was interested in a particular business; that the assets and goodwill of that businees had been, by a contrivance of her partners, transferred to another business in such a way as to entitle her to treat that new business as the business in which she was interested, or to treat some parts of its assets as belonging to the business in which she was interested or entitled to share. That is the case which the plaintiff has undertaken to prove at the hearing, and then she says in substance: "In order to enable me to show what the conduct of the parties was, it is important that I should show exactly what they have drawn out of the new business. They drew out large sums of money. Here is a gentleman who, I say, came in with notice of the source from which the assets of the new business were derived; he says that he did not, that he merely came in as a partner entitled to receive his capital and a fixed sum by way of interest upon it. I intend to show that he is liable to account to me for part of the assets taken from the old business." And then she says: "I should like to know from [V.C. M. him what sums of money he and his two partners have respectively drawn out, whether in respect of capital or profits, from this new business." There is nothing vexatious or oppressive in calling for an answer to that, and it may be very material at the hearing to know what sums the defendants have drawn out of the new business. There is, therefore, nothing to exempt this defendant from the ordinary rule that he must answer fully. Of course the interrogatory is not to be understood as applying to money which the partners have drawn out for the purpose of paying a creditor or taking goods out of bond, or anything of that kind; it only applies to sums debited against the partners as being drawn out for themselves, and not for the purposes of the partnership. Lord Justice MELLISH: I am of the same opinion. Solicitors for the appellant, Miller and Miller. Solicitor for the respondent, W. Stopher. V.C. MALINS' COURT. Reported by F. GOULD and JAMES E. HORNE, Esqrs., Barristers-at-Law. Monday, June 29. HURST V. HURST. Exception-Conditional limitation-Obligation to disclose happening of event. H. was tenant for life of freeholds, with a condition that in case he should encumber or become bankrupt his estate should be forfeited, and the trust in favour of the remaindermen at ance taks effect. A. filed a bill, to which the B. society was one of the defendants, alleging his belief that H. had created an incumbrance in favour of the B. society, and by his interrogatories required the society to set out all particulars of securities given to them by H. The B. society answered that they were mortgagees of a lease which had been granted by H. to S., but did not set out the date of the lease, thereby not disclosing whether it had been granted before ar after the alleged cesser of H.'s interest: Held, on exception to the society's answer, that they must set out the date of the lease from H. to 8. EXCEPTION to answer. Isaac Blackburn Hurst, by his will, dated the 23rd Sept. 1867, devised and bequeathed all his freehold and leasehold property thereinafter mentioned unto his wife, the defendant Augusta Matilda Hurst, and the plaintiff John Witherden Hurst, upon trust, to permit his (the testator's) daughter, the defendant, Margaret Dennant, to receive the rents and profits of certain freehold and leasehold hereditaments therein mentioned for her separate use for her life, and after her decease to convey and assign the said hereditaments to her children equally. And upon further trust to per mit his (the testator's) son, the defendant, Isaac Blackburn Hurst, to receive the rents and profits of certain other freehold and leasehold heredita ments therein mentioned during his life, and after his decease to convey and assign the same hereditaments to his children equally. The will then contained the following clause: And it is my will that the bequests hereinbefore made to my said son and daughter respectively shall be subject to the following conditions (that is to say) that they shall in nowise charge or incumber the said freehold or leasehold property the rents of which are receivable by them during their respective lives or any part thereof nor cause any question or dispute to arise with reference to the said property or any disposal thereof as aforesaid. And in case either my said son or daughter shall so charge or encumber the said property or any part thereof or cause or raise any question or dispute as aforesaid or in case my said son shall become bankrupt or insolvent or compound with his creditors then the bequest to my said son or daughter so transgressing such conditions or in the case of the bankruptcy or insolvency of my said son as aforesaid shall become absolutely forfeited. And it is my will that in either of such cases the trusts hereinbefore created in favour of the child or children of my said son or daughter so transgressing shall at once take effect and be acted upon by my said executors and trustees as hereinbefore directed. In May 1873, an order was made in a suit instituted by the present plaintiff for the administration of the testator's estate, appointing a receiver of the rents and profits of the testator's estate specifically devised and bequeathed in trust for the defendant, Isaac Blackburn Hurst, for life, but the plaintiff alleged, by his present bill, that the tenants of this estate refused to pay the rents thereof to such receiver, on the ground that the Birkbeck Society had for some time past received such rents. The plaintiff further alleged that there were two societies, known respectively as the Birkbeck Building and Freehold Land Advance Society and the Birkbeck Permanent Benefit Building Society, but that he was unable to ascertain which of the societies was in receipt of the said rents; that he had since ascertained that the said societies had a common manager, but separate sets of trustees, and that the property of the societies was vested in such trustees respectively, all of whom were made defendants to the present suit; that he believed that the said trustees, or some of them, claimed to have some interest in the testator's estate by virtue of a charge or incumbrance created in their favour by the defendant, Isaac Blackburn Hurst, but submitted that such charge or incumbrance was, by the terms of the testator's will, rendered wholly inoperative, except for the purpose of working forfeiture and accelerating the remainders by the said will limited to the children of the defendants Isaac Blackburn Hurst and Margaret Dennant respectively. Although Isaac Blackburn Hurst was made a defendant to this suit, he had not been heard of for many years, and the plaintiff did not know whether he was married or single. The defendant, Margaret Dennant, had several children. The present suit was instituted as supplemental to the administration suit, and the bill prayed a declaration that any charge or incumbrance created or purported to be created by the defendant, Isaac Blackburn Hurst, on the freehold or leasehold property of the testator, the rents whereof were under the said will receivable by him during his life, was wholly inoperative, except as working a forfeiture of his life interest in the said freehold or leasehold property. The fifth interrogatory served by the plaintiff on the defendants was as follows: Let the defendants set forth the full particulars of all securities given to either of the two societies, or to any person or persons (together with the names of such persons) on behalf of them, or either of them, or to the defendants or any of them, by the defendant Isaac Blackburn Hurst, or any person on his behalf, or transferred to the said societies or either of them, or the defendants or any of them, or any other and what persons on behalf of either of the said societies by any assignee or other [V.C. M. person claiming title through the defendant Isaac Blackburn Hurst, together with the respective priorities of such securities, and the sums secured thereby, and also full particulars of all charges or claims on the real and leasehold estate devised by the testator's will to the defendant, Isaac Blackburn Hurst. The defendants, the trustees of the Birkbeck Permanent Benefit Building Society, by their answer, stated, a mortgage executed by one Charles Sidgreaves, a member of the society, to the society (in the usual form for securing payment of his subscriptions) of property demised by a certain lease therein mentioned, made between the defendant, Isaac Blackburn Hurst, as lessor, and Sidgreaves as lessee, for the term of twenty-one years, at the yearly rent of 1261. The paragraph of the defendants' answer, purporting to be a reply to the plaintiff's fifth interrogatory, was as follows: No securities or security have or has been given to the Birkbeck Permanent Benefit Building Society... by the defendant Isaac Blackburn Hurst... but we say that we are mortgagees of the leasehold interest of the said Charles Sidgreaves, as herein before mentioned, which comprised some part of the estate devised by the said testator's will to the defendant, Isaac Blackburn Hurst. The plaintiff excepted to this answer as insufficient, on the ground that the defendants had not set out the date of the lease from Isaac Blackburn Hurst to Sidgreaves. Cookson, for the plaintiff.-There is a question whether, under the terms of the will, the life interest of Isaac Blackburn Hurst had not ceased before he made the lease to Sidgreaves. The society who claim through Sidgreaves may have no estate at all, and it is therefore most material for the plaintiff to know the date of the lease. I admit that if the gift to Isaac Blackburn Hurst contained a forfeiture clause, the plaintiff could not support the exception, but the gift is subject to a conditional limitation, and not a forfeiture. There is no difference for this purpose between a gift until a person shall encumber and a gift with a condition that if he encumber the estate shall go over. The intention of the testator, which is to be collected from the whole will, was to give an interest in the property to his son until he should encumber, &c. That is a natural determination of the estate. The word "until" could not be used in imposing a pure condition. In Chauncey v. Tahourdin (2 Atk. 392), the distinction is taken between a limitation over and a forfeiture. He cited also Hambrook v. Smith, 17 Sim. 209; Kerr on Discovery, p. 155; and referred to Smith's Original View of Executory Interests (annexed to Fearne Cont. Rem.). Cotton, Q.C. and Hemings, for the society.Discovery is sought from the building society in order to subject them to a forfeiture, and they cannot be bound to disclose anything to assist the plaintiff in establishing it. Cookson was not called upon to reply. The VICE-CHANCELLOR read the material part of the will, and said that considerable discussion had taken place as to what was the effect of the proviso as to encumbering by Isaac Blackburn Hurst. This was a conditional limitation; a certain event happening was to cut short his estate. There was no difference, for the purpose of such an exception as this, between a conditional limitation and à condition. It had been said that where, for instance, an Q. B.] REG. v. THE INHABITANTS OF BRADFIELD. estate was given to a woman until she should marry, or was given to her for life, with a gift over in case she should marry, she would in the one case be bound to disclose in her answer whether she had married, and not in the other. Now here it was said that Isaac Blackburn Hurst had done something to forfeit his estate, and that the society were not bound to disclose the date of his lease to Sidgreaves, which might or might not have been made before Isaac Blackburn Hurst's estate had ceased. He should adopt the rule in Hambrook v. Smith, where Kindersley, V.C. said: "Now in this case, according to the terms of the will of Mrs. Smith, the estate is given to him not absolutely for life, but to endure only until the happening of the event of alienation, and then given over to other persons. Now it would be very difficult in a court of equity to maintain the proposition that a man has a right to say, although I am in possession of an estate which was only to endure till the happening of a certain event, and then to go over, I can in equity and moral justice refuse to disclose whether that event has happened, upon the hap pening of which my estate is to determine.' If there had been no decision upon the point, I could not have satisfied myself that he could have protected himself from giving such discovery, when the refusal in effect is saying this, although my estate has determined in consequence of the Act, I have a right to refuse the disclosure whether my estate has determined.' I should find it extremely difficult to hold this; but I think the decisions clearly establish that this is not a case of forfeiture to which the rule applies. Now the cases which have been cited, except that of Monnins v. Monnins (2 Ch. Rep. 68), which appears to be overruled by subsequent cases, seem to have determined that there is a distinction between cases of estates to endure for life, but to go over in case of a particular act being done, and cases of estates to endure until the happening of a certain event. I am clearly of opinion, therefore, that the objection to discovery on the ground that it might subject the defendant to what he calls forfeiture, but which is only the discovery of the happening of that event on which the estate would determine, is not tenable. I must, consequently, overrule the exceptions." Now this was a case where the estate was to determine upon the happening of an event, and on the principle above laid down, he was of opinion that the defendants were bound to answer the interrogatory, and that the exception must be allowed. Solicitors for the plaintiffs, Mercer and Mercer. Solicitor for the defendants, Poncione. Common Law Courts. COURT OF QUEEN'S BENCH. Reported by J. SHORTT and M. W. MCKELLAR, Esqrs., Barristers-at-Law. Friday, May 22. REG. v. THE INHABITANTS OF BRADFIELD. Highway-Dedication to the public-Private road set out under inclosure award-Liability to repair. Commissioners had in 1789, by an award under an inclosure Act, set out a road as an occupation road road, and ordered that the adjoining landowners [Q. B. or occupiers should ever after keep the road in repair. On the trial of an indictment against a parish for non-repair of the road as a highway, sufficient evidence of user was given to support a presumption of dedication to the public in an ordinary case before the General Highway Act 1835 (5 & 6 Will. 4, c. 50): Held, that the fact of the road having been set out as a private road by the award to be ever afterwards repaired by the adjoining landowners or occupiers, did not prevent its becoming a public highway repairable by the parish. In this a rule nisi had been obtained by Field, Q.C. to enter for the defendant a verdict which had been entered for the Crown at the trial of an indict. ment against the inhabitants of Bradfield, in Yorkshire, for non-repair of a road called Myerslane. In the year 1789 the road in question had been set out as an occupation road by an award under an inclosure Act, by which award the adjoining landowners or occupiers were to keep the road in repair ever afterwards. It was admitted on behalf of the parish that there was sufficient evidence of user by the public to prove a dedication of the road to the public before the General Highway Act, 5 & 6 Will. 4, c. 50, (a) in an ordinary case, but the parish denied its liability to repair on this ground, that the award setting out the road had thrown the burden on the adjoining landowners or occupiers. Maule, Q.C. now showed cause against the rule, and contended that the fact that the road in question was originally set out under the award as a private road and repairable by private individuals did not of itself present such a road from ever after becoming a public highway and repairable by the parish. Rex v. St. Benedict (4 B. & Ald. 447), relied on by the other side, does not go any such length. There the road, which was proved to be out of repair, was originally made under the provisions of (a) Sect. 23 of 5 & 6 Will. 4, c. 50, enacts "that 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, &c. 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, &c. ; 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, if such vestry shall deem such highway 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 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 aforesaid of such highway shall be determined at the discretion of such justices." Q. B.] REG. v. THE INHABITANTS OF BRADFIELD. a local Act passed 41 Geo. 3; and by a clause in that Act the commissioners were directed to set out two specific private roads therein particularly described, which, when set out, were to be used by such persons only as were entitled to use an old occupation road running in the same direction as the latter of the two roads, and the commissioners by their award, dated 27th June 1803, set out the road presented as one of these two roads. From the date of the award, however, until the finding of the presentment [the case was tried in 1820] the road had been used by the public without interruption as a carriage way; and the question was whether, under these circumstances, this was a public road which the parish was bound to repair; and the court held that it was not. [BLACKBURN, J. -I must confess I do not understand the judgment as reported, delivered by Abbott, C.J. in that case.] If the ratio decidendi of this case was that a private road can never by user become a public highway, it has been overruled by subsequent cases. In Reg. v. East Mark (11 Q. B. 877) the road had formed part of the waste of a manor, and had been set out as a private road by award of commissioners under a private inclosure Act, and had been used by the public generally ever since it had been so set out, a portion of the waste land having been allotted to the lord as directed by the Act, in respect of his interest in the soil. After verdict for the Crown it was argued for the defendants, on motion to enter a verdict for them, that the soil of the road had been taken from the lord and transferred to no other person, and therefore there was no owner, or none against whom a dedication to the public could be presumed; and that, if the Crown were the owner the jury should have been directed that stronger evidence was necessary to raise a presumption of dedication than if the owner had been a private person; but this court held that dedication might be presumed against the Crown from long acquiescence in public user, and that the jury were rightly directed to consider whether the owner, whoever he might be, had consented to the public user in such a manner as to satisfy the jury that a dedication to the public was intended. Lord Denman, C. J. said: "I think the public are not bound to inquire whether this or that owner would be more likely to know his rights and to assert them, and that we have gone quite wrong in entering upon such inquiries. Enjoyment for a great length of time ought to be sufficient evidence of dedication unless the state of the property is such as to make dedication impossible." Rex v. Wright (3 B. & Ald. 681), which was the case of an indictment for encroaching on a public highway, is an express authority on the present point. There commissioners had, in 1771, set out the road in question under an inclosure Act which empowered them to set out public and private roads, the former to be repaired by the township, the latter by such persons as the commissioners should direct, the public roads to be 60 feet wide between the fences. The commissioners in their award described a road as private and eight yards wide, but in setting it out a space of 60 feet was left between the fences; and they directed both the public and private roads to be repaired by the township; the centre only of the 60 feet was ordinarily used as a carriage road, and the township repaired it; the space said to be encroached upon was at the side of this road and there was a diversity of evidence as to the use made of this space by the public, and [Q. B. its condition since the time of the award. It was held that the commissioners had exceeded their authority in awarding that private roads should be repaired by the township; but that on the whole of the evidence it was a proper question for the jury, whether or not the road in question, though originally intended to be private, had been dedicated to and adopted by the public. [BLACKBURN, J.-Was not the case of Rex v. St. Benedict reviewed in some later case ?] Yes, in Rex v. Leake (5 B. & Ad. 469). In that case, referring to the dictum of Bayley, J. in Rex v. St. Benedict that notwithstanding a dedication to the public "I think that in consequence of the want of some Act of acquisecence or adoption by the parish, they are not liable to the repair of the road." Parke, B., says "with every respect for that very learned judge, I must say I cannot accede to the doctrine there laid down, and I am not aware that there is any authority in support of it. The repair by the parish of the part in question is undoubtedly a sufficient adoption, if adoption be necessary, which I am clearly of opinion it is not." Field, Q.C., in support of the rule, contended that the defendants were not liable to repair the road in question. The reason why the charge of repairing highways is thrown on the parish is because the owner of the soil has given a consideration for it in giving up the exclusive right which he formerly possessed of passing over it; and it is only fair that they who enjoy the benefit should pay the expenses of the necessary repairs. [QUAIN, J. referred to an anonymous case in Lord Raymonds' Rep. p. 725 where it was laid down by Holt, C.J. that the inhabitants of every parish of common right ought to repair the highways; and therefore if particular persons are made chargeable to repair the said ways by a statute lately made and they become insolvent, the justices of peace may put that charge upon the rest of the inhabitants.] The language of Abbott, C.J. ir. Rex v. St. Benedict (ubi sup.) is distinctly in favour of the view now contended for. He said "I am of opinion that this was not a public road, and that the parish are not bound to repair it. It was in this case, as appears from the clause in the local Act, compulsory on the owner of the soil to permit a qualified passage, viz., to all persons entitled to use the old occupation road. That circumstance distinguishes this from the cases cited. If this be a public road, it would follow that whenever, under an inclosure Act an occupation road was set out and it happened to be convenient for passage, it would become, almost immediately, a public road and the burden of repairing it would be thrown on the parish." [BLACKBURN, J.-I must say that I find a difficulty in following that reasoning. ARCHIBALD, J.-May not the explanation be that the Chief Justice was under the same impression as Bayley, J. in the same case, that the consent of the parish was necessary?] BLACKBURN, J.-I think that this rule must be discharged. The fact that the road was originally set out under an award by inclosure Commissioners as a private occupation road, to be used and repaired by particular individuals, no doubt prevented its being a highway then; and the land over which the road passed was held by the owners of it subject to this qualified easement in favour of particular persons, but there was nothing whatever to prevent the owners of the soil, if they were so minded, from dedicating it to the public so as to |