and that the occupiers of the marshes had paid toll for the liberty of bringing their hay along that part of the road over the ancient inclosure; and as to the repairs heretofore done to Welch's Lane, it appeared that the tenant of the farm got into the office of surveyor, and put his hand into the parish purse to repair his own road; this, therefore, never was a public highway. The general inclosure act, which passed on the same day as the Enfield inclosure act, directs, that all roads over lands to be inclosed, not set out by the commissioners, shall be deemed part of the lands to be inclosed; the commissioners did set out this road, but expressly set it out as a private road; the parish, therefore, was not bound to repair it. Verdict, not guilty. A record of conviction on an indictment against a parish for not repairing a road, will be conclusive evidence, on a plea of not guilty, of the liability of that parish to repair. R. v. St. Pancras, Peake's N. P. C. 219. 2 Saund. 159. a. n. 10. 34 G. 3. c. 64. Highway lying in two parishes, determine what two justices to parts shall be repaired by each. By stat. 34 G. 3. c. 64. § 1., after reciting that it frequently happens that the boundaries of parishes pass through the middle of a common highway, and one side of such highway is situated in one parish, and the other side in another parish, whereby great inconveniences often arise in repairing the same, it is enacted, that two justices, on complaint of any surveyor of any parish (stating in writing, and by a plan thereunto annexed, that there is such a highway, one side whereof ought to be repaired by one parish, and the other side by another, and particularly describing the same by metes, bounds, and admeasurement thereof), may issue their summons with a copy of such writing and plan thereunto annexed, to the surveyor or one of the surveyors of such other parish, to appear before them on a day mentioned in such summons, not more than fourteen nor less than seven days, from the day of the date of such summons; and if the parties appear, such justices may then proceed finally to decide the matter in manner hereinafter mentioned, in case all the parties shall consent thereto; but in case the surveyor summoned shall not appear on such first summons, or appearing shall require further time, such justices shall adjourn the further consideration of the matter for any further time, not more than 21 nor less than 14 days from the day of such adjournment, of which the surveyor not appearing shall have notice; on which day the said justices shall proceed to hear the parties and their witnesses, and whether the party summoned does or does not appear, shall proceed to examine and finally determine the matter in form following; (viz.) They shall divide the whole of such highway by a transverse line crossing the same into two equal parts, or into two such unequal parts and proportions, as, in consideration of the soil, waters, floods, the inequality of such highway, or any other circumstances attending the same, they in their discretion shall think just and right; and declare, adjudge, and order that the whole of such highway on both sides thereof, in one of such parts, shall be maintained and repaired by one of such parishes, and that the whole thereof on both sides in the other of such parts shall be maintained and repaired by the other of such parishes; and shall cause such their Order, &c. to order, and a plan of such highway, and the allotment thereof as be filed with before mentioned, to be fairly delineated on paper or parchment, clerk of the and filed with the clerk of the peace; and shall also cause such peace. 34 G. 3. c. 64. Each parish afterwards bound to repair the parts so allotted. Costs of the proceedings. Not to alter the boundaries of counties, &c. Not to relate to highways re paired by bodies politic, tenure, &c. without consent. Appeal. Certiorari. Repairing in respect of an inclosure. posts, stones, or other such boundaries, to be set up in such highway as they shall think necessary for ascertaining such division and allotment aforesaid. § 2. And after such order and plan shall be so filed with the clerk of the peace as aforesaid, such parishes shall be bound as of common right to maintain and keep in repair such parts of such common highway so allotted to them as aforesaid, and shall be liable to be prosecuted and indicted for neglect of such duty, and shall in all respects whatsoever be liable and subject to all the provisions, regulations, and penalties contained in any act of parliament for the repair of the highways, in like manner as they are liable to repair any other common highway within such parishes respectively; and also shall be discharged from the repair of such parts of such highway as shall not be included in their respective allotments. § 3. And all costs, charges, and expenses incurred, shall be defrayed by such two parishes, to be ascertained by such two justices; and if not paid, either such justices, or any other justice, may levy the same by distress and sale, with the costs of such distress, on the goods and chattels of any surveyor of the highways of the parish refusing or neglecting to pay. § 4. Provided, that nothing herein shall affect, change, or alter in any manner whatsoever, any boundaries of counties, lordships, hundreds, manors, or any other division of public or private property, nor the boundaries of any parishes, otherwise than for the purpose of repairing such particular portion of the highways in the manner herein-before mentioned. § 5. Nothing herein shall relate to highways repairable by bodies politic or corporate, townships, or other such places or private persons, by reason of tenure of lands, or otherwise howsoever, but shall be construed to relate to such highways, the repair of which belongs to parishes only; unless such bodies or persons be desirous that the same shall be placed under the regulations of this act; in which case such two justices may proceed therein in like manner as is herein directed with respect to parishes. § 7. Either of the two parishes, by an order in vestry specially called for the purpose, may appeal to the next quarter sessions of the county where such parishes shall lie after such order and plan are filed as aforesaid, who may make such order as shall appear to them to be just, either by affirming, quashing, or amending the order of the two justices; and shall allow costs to either party as they shall think right; which order of sessions shall not be removed by certiorari or otherwise, but shall be final to all intent and purpose whatsoever. A man may be bound to the repair of a highway in respect of an inclosure of the land wherein it lies; as where the owner of lands not inclosed, next adjoining to the highway, inclose his lands on both sides thereof; in which case he is bound to make a perfect good way, and shall not be excused for making it as good as it was at the time of the inclosure, if it were then any way defective: because, before the inclosure, the people used, when the way was bad, to go for their better passage over the fields adjoining, out of the common tract; which liberty is taken away by the inclosure. 1 Haw. c. 76. § 6. 2 Saund. 160. n. 12. And if the way is not sufficient, any passenger may break down Breaking fence the inclosure, and go over the land, and justify it, till a sufficient to go over land. way be made. 3 Salk. 182. Also it hath been holden, if one inclose land on one side, which hath been anciently inclosed on the other side, he ought to repair all the way but if there be not such an ancient inclosure of the other side, he ought to repair but half that way. 1 Haw. c. 76. § 7. Therefore, if there be an old hedge time out of mind on one side of the way, and a person having land on the other side make a new hedge, such person shall be charged with the whole repair. 1 Sid. 464. But if one person make a hedge on one side of the way, and another person make a hedge on the other side of the way, they shall be chargeable to the repair thereof by moieties. Ib. But it is said, that wherever one is bound to repair a highway, or part thereof, in respect of an inclosure, and he lays it open again as it was before, he shall be freed from the charge of such repair. 1 Haw. c. 76. § 7. Inclosing on one side. Charge removed by laying it open. A particular person may be bound to repair a highway in respect Repairing by of a prescription; and it is said, that a corporation aggregate may prescription. be compelled to do it, by force of a general prescription, that it ought and hath used to do it, without shewing that it used to do so in respect of a tenure of certain lands, or for any other consideration; because such a corporation, in judgment of law, never dies, and therefore if it were ever bound to such a duty, it must needs continue to be always so: neither is it any plea, that such a corporation have always done it out of charity; for what it hath always done, it shall be presumed to have been always bound to do. But it is said, that a person cannot be charged with such a duty, by a general prescription from what his ancestors have done, unless it be for some special reason; as the having lands descended from such ancestors, which are holden by such like service. 1 Haw. c. 76. § 8. This applies to individual persons only, and not to an aggregate Not applicable body of persons who compose the inhabitants of a district or divi- to a body of sion in a parish or township. R. v. Inhabitants of Ecclesfield, inhabitants. 1 B. & A. 348. R. v. Inhab. of the Parish of St. Giles, Cambridge, T. 56 G. 3. 5 M. & S. 260. Presentment for not repairing a highway in the parish of St. Giles, Cambridge. Plea, that the inhabitants of the parish of Great St. Mary, in the town of Cambridge, from time whereof, &c. until the passing of the act 37 G. 3. c. 179., have repaired, and been used and accustomed to repair, and during all that time of right ought to have repaired, and but for the passing of the said act, and the provisions therein made respecting the repairs of the said part of the said king's common highway in the presentment mentioned to be in decay, from the passing of the said act hitherto of right ought to have repaired, and still of right ought to repair, the said part of the said highway, when and as often as it hath been or may be necessary; and that by the said act, intituled, &c. it was (among other things) enacted, that the said part of the said highway (setting it out) should from and after the passing of the said act, be repaired by trustees therein mentioned; and that the inhabitants of Great St. Mary should be exempted from repairing the same, in consideration of 150l. Indictment against a parish for non-repair of a highway lying within it: Plea, that the inhabitants of another parish have repaired and accustomed to repair, and of right ought to have repaired: Held ill, for the plea ought to consideration. and been used have shewn a R. v. Inh. of agreed to be contributed by them towards the expense of making and repairing the same; and that in and by the said act it was further declared, that the said act, and all the powers thereby given, should commence and take effect the day the same should receive the royal assent, and should continue thenceforth for 21 years next ensuing, and thence to the end of the next session of parliament; and that the said act is in full force. Without this, that the inhabitants of the said parish of St. Giles the said part of the highway ought to repair and amend, when and so often as should be necessary, as by the said presentment is above supposed, &c. Demurrer. Joinder. After argument, Ld. Ellenborough C. J. said, "The principle of law I take to be clear, that the inhabitants of a parish are liable of common right to repair the highways lying within it, unless they can shew that this burthen is cast upon some other persons, under an obligation equally durable with that which would have bound the parish; which obligation must arise in respect of some consideration of a nature as durable as the burthen cast upon them. Now, in the present case, nothing of this kind appears; but all that is alleged is, that the parish of St. Mary has immemorially repaired. This I hold to be insuffi cient; and, therefore, the defendants having failed to shew any consideration binding upon the persons whose liability they would needs substitute, the burthen must rest with themselves. I do not go into the question touching the effect of the exemption, because my opinion is founded on this, that no consideration being pointed out whereby to subject the inhabitants of the parish of St. Mary to the reparation of a highway lying in aliena parochia, the law will not cast this burthen upon them. To hold otherwise would, I think, be raising a doubt as to the common law of liability of parishes to amend their own highways. It appears to me that the defendants are liable, inasmuch as they have not shewn any others who are." - Bayley J. "There is not any case which looks to an obligation like the present. Particular persons cannot be charged by prescription without shewing a consideration; but a corporation, sole or aggregate, may be bound to repair by usage or prescription, without more. Here I find no consideration alleged. It was suggested, that the land over which the highway lies might originally have been dedicated to the public, in consideration that the parish of St. Mary, who were chiefly benefited by it, would undertake the burthen of its reparation; but upon consider. ation, I think that this cannot be; because the inhabitants of a parish cannot, as if they were a corporation, bind their successors: if they could, and were to become once liable, they must remain so for ever, however useless the highway might, in after ages, turn out to be." Holroyd J. "The only ground of distinction that can be suggested between this case and the case where particular individuals are to be charged has been suggested; viz. that inasmuch as a parish is composed of a body of inhabitants which has continuance by succession, in like manner as a corporation, a parish may also be charged as a corporation, although, like it, the parish, individually, is perpetually changing. It has been said, that it might have been for the convenience of the parish of St. Mary that this land was dedicated to the public for the purpose of a highway; and that in consideration of this boon the parish might have taken on themselves the burthen of its reparation. But I think, upon reflection, that this could not be a legal con- R. v. Inh. of sideration binding on the successors, because a burthen might St. Giles, thereby be imposed on them beyond the benefit which they were Cambridge. to receive; for they would have to repair the highway, not only for their own use, but also for the public. This plea, then, is improperly pleaded: for when the highway lies out of the parish, a consideration must be shewn. I say nothing as to the form of pleading where the highway lies within a township or division of a parish which is charged with the repairs. (See R. v. Ecclesfield, 1 B. & A.348.) Judgment for the crown. See R. v. Inhab. of W. R. of Yorkshire, 4 B. & A. 623. See post, § Bridges, p. 607. It seems, that an indictment, charging a tenant in fee simple with having used of right to repair such a way by reason of the tenure of his land, is certain enough, without adding, that his ancestors, or those whose estate he hath, have always so done; for that is implied. 1 Haw. c. 76. § 8. But the indictment must set forth where those lands lie. 2 Hale, 181. Mode of charging tenant in fee simple in indictment. And in the case of Rider v. Smith, 3 T. R. 766., it was deter. In civil action. mined that in an action on the case for not repairing a private highway leading through the defendant's close, it is sufficient to allege that the defendant, by reason of his possession of the said close called, &c. and of two closes of land with the appurtenances, contiguous and next adjoining thereto, is bound to repair the said way. repair. Under the head of prescription may be considered the case Townships or where not the whole parish, but particular townships or other other divisions divisions within the parish, have for time immemorial repaired within a parish particular roads within that parish; which prescription, being may be liable to ancient, and without interruption, is presumed to have had its origin by licence on an inquisition of ad quod damnum, or other legal commencement; and it would be very prejudicial in large parishes, if every inhabitant were liable to repair throughout that whole parish, when the time occupied in going and returning might exceed the time appointed by the law for labour. highways not respect to the But a private agreement amongst the inhabitants, not being Private agreeancient, nor confirmed on an inquisition of ad quod damnum, that ment concernsome of the inhabitants shall repair one part of the highway, and ing repair of some of them another part, is not good: it may be binding binding with amongst the parties thereunto, so as on a breach thereof one party may have an action upon the case against the other; but public. with respect to the public, they continue equally liable as before; for such private agreement cannot alter the law. R. v. The Mayor, &c. of Liverpool, 3 East, 84. division is liable must be set forth. In the case of R. v. Inhab. of Great Broughton in Cumberland, On indictment, 5 Burr. 2700., an indictment was brought in the usual form, the reason why alleging that a certain part of the highway, &c. at the parish of a particular Bridekirk, in the county aforesaid, was ruinous, &c., and that the inhabitants of the division of Great Broughton in the parish of Bridekirk aforesaid, the common highway aforesaid (so as aforesaid being in decay), from the time whereof the memory of man is not to the contrary, ought to repair and amend, when and so often as it shall be necessary. On a verdict being found against the inhabitants, a writ of error was brought in the K. B.; and the |