REPAIRS BY such liability by any agreement with others. R. v. The Mayor, &c. of Liverpool, East, 86; and see Bac. Abr. Highways, (F). It has been said, the parish are not bound to repair those highways dedicated to the public by the owner of the soil, without the parish have consented to the dedication. R. v. St. Benedict, 4 B. & 4. 450. This doctrine was, indeed, questioned in the recent case of R. v. Paddington Vestry, 9 B. & C. 456. But the judgment proceeded upon another point. It should seem, it cannot be supported, for it is the user by the public, and not by the inhabitants of a parish, which is the test of its being a public road. This doctrine, too, seems to imply that the consent of the parish is the foundation of the liability; now, a parish cannot consent to take such a burden upon itself. Rex v. St. Giles's, Cambridge, per Holroyd, J., 5 M. & S. 260. In the case of bridges the public utility, and not that of the county, is regarded. The doctrine, too, puts it in the power of a parish to stop all improvements not immediately advantageous to itself. The liability of a parish to repair does not extend to private ways. Even where the commissioners under an inclosure act had authority to order any person to repair the private ways, and they ordered the parish to do it, it was held that the parish was not liable, and that the words of the act must be confined to any persons interested in such ways. R. v. Cottingham, 6 T. R. 20 (a). If the parish relies on the award of such commissioners of inclosure, to shew that the road is not within their limits, evidence must be adduced that the notices required by the act were given, or that the subsequent usage had been such as to raise an inference that due notice had been given. If the parish since the inclosure has repaired the road, the inference is unfavourable to the parish. R. v. Haslingfield, 2 M. & S. 558; and see R. v. Washbrook, 4 B. & C. 732; 7 D. & R. 221, S. C.; post, 13. The county, and not the parish, is bound to repair the road within 300 feet of the centre of a public bridge. Ante, Vol. II. Bridges. (a) R. v. Inh. of Enfield, Siti. after H., 1819, cor. Abbott, C. J., MS. 2 Burn's J., 24th ed. 821. Indictment against the defendants for not repairing a road, called Welch's Lane, and the road over the marshes, leading from the turnpike road at Enfield Wash to the government foundry for small arms. Plea, not guilty. In support of the indictment, it was contended-That this lane was an ancient public highway, and had been repaired by the parish, time out of mind; that the commissioners under the Enfield inclosure act could not abolish it as a public road, without the order of two justices, which they never obtained; that the commissioners had set it out, and improperly called it a private road, but had directed the parish to repair it; that this was not like the Cottingham case, where the parish was not liable to the repair of the road previous to the inclosure, nor had any allotment under the act; for that here the parish of Enfield had always repaired this lane, which led from the turnpike road to the river Lea, and had, also, an allotment under the act, as well as a share of the timber growing on the chase; and that the commissioners were, therefore, justified, when they set out this road, in directing the parish to repair it. Upon the cross-examination of witnesses for the prosecution, it appeared, that at the lower end of Welch's Lane, a gate across a part of the road leading over an ancient inclosure into the marshes, had been occasionally locked; and that the farmers holding lands in the marshes formerly paid threepence or fourpence an acre for carrying their hay through this inclosure; when Abbott, C. J., stopping the counsel for the Crown, said, that unless the prosecutors were prepared to contradict their own witnesses, the case must end:-that a public highway must lead from one town or vill to another, and be free for the passage of all H. M.'s subjects; whereas, it was proved in evidence, that Welch's Lane led only to a farm-house, 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. This liability of the parish is confined to repairs. Although by 13 Geo. III. c. 78, s. 16, post, 35, 36, justices may order narrow roads to be widened; a parish is not by the common law bound to widen a road. R. v. Stretford, 2 Ld. Raym. 1169. And the liability of counties to the repair of bridges is analogous to that of a parish to repair roads. R. v. Devonshire, 4 B. & C.671; 7 D. & R. 147, S. C.; ante, Bridges, Vol. II. And the parish are not by the common law bound to clean highways; therefore it has been held not an indictable offence, that the road is very muddy, and so narrow that people cannot pass over it, without danger of their lives, unless it be out of repair. 2 Ld. Raym. 1169. And the indictment must expressly aver it to be out of repair. Id. (2) Part of Parish, when liable]—The inhabitants of a township, district, or division of a parish may, by general prescription, be liable to repair all highways in such township, district, or division. R. v. Macclesfield, 1 B. & A. 348. But they cannot be so liable ratione tenure. R. v. Machynlleth, 2 B. & C. 166. Nor can they be liable under a general prescription to repair any particular roads only, semble. R. v. Hatfield, 4 B. & A. 75. And to charge the township, &c., with the repair of a particular road only, some special reason must be shewn, as in an indictment against an individual, infra. The township, if the prescription be to repair all highways, will be liable to repair the old as well as new ones. R. v. Netherthong, 2 B. & A. 179. This prescriptive liability, however, can never arise where the way has been made within the time of legal memory. R. v. Hudson, 2 Str. 909. Though, indeed, the formation of a new way does not interfere with the general prescription, nor will a recent addition of a hamlet to a township negative the prescriptive liability of a township generally. R. v. Oswestry, 6 M. & S. 361. It was considered in the case of R. v. Kingsmoor, 2 B. & C. 190; 3 D. & R. 398, S. C., that an extra-parochial place cannot, as such, of common right be bound to repair its own roads (a). ̄ Mr. Wellbeloved, in his work on Highways, page 79, &c., denies the correctness of this doctrine. The prescription being 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. But a private agreement amongst the inhabitants, not being ancient, nor confirmed on an inquisition of ad quod damnum, that some of the inhabitants shall repair one part of the highway, and some of them another part, is not good: it may be binding amongst the parties thereunto, so as, on a breach thereof, one party may have an action upon the case against the other; but 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. If the inhabitants of a township, who were bound by prescription to repair the roads within the township, be expressly exempted by the provisions of the road act from the charge of repairing new roads to be made within the township, that charge must necessarily fall on the rest of the parish. R. v. Sheffield, 2 T. R. 106. The indictment against the inhabitants of a division, or part of a parish, (a) The indictment in that case stated, "that a certain way was an ancient common highway, and that a certain part, situate in an extra-parochial hamlet, was out of repair, and that the inhabitants of the extra-parochial hamlet ought to repair it" and it was held, that this in dictment was bad, as it did not allege 3. Highways in two parishes. 34 Geo. 3, c. 64. Highway lying in Highways in general. should shew that they have from time immemorial repaired; it is not enough And unless the division be charged with the repair of all roads, it seems a If the inhabitants of a parish plead, that several included townships are (3) Highways in two Parishes]-If a parish lie within two counties, and a highway lying in one part be out of repair, the indictment must not be against that part only, but against the whole; R. v. Clifton, 5 T. R. 498; though, indeed, R. v. Weston, 4 Burr. 2507, was to the contrary. Where a road lay in two parishes, and no division and allotment under the 34 Geo. III. infra, had been made, it was held, that an indictment against one parish for not repairing one side of the road, ought to have stated, that the parish was liable to repair ad medium filum viæ. R. v. St. Pancras, Peake, N. P. 219. In order to charge a parish with the repair of a highway lying in another parish, some consideration must be shewn, and mere prescription is not sufficient. R. v. St. Giles, 5 M. & S. 260; sed vide R. v. West Riding, Yorkshire, 4 B. & A. 623; R. v. Ecclesfield, 1 B. & A. 348. The following provisions of the 34 Geo. III. c. 64, have been passed for the purpose of ascertaining the boundaries of parishes in highways, and thereby enforcing the above common law liability to repair. The 1st sect., after reciting that the "common highways in this kingdom are to be maintained and kept in repair (except in certain cases) by the inhabitants of the several parishes in which such common highways are situated, but it frequently happens that the boundaries of such parishes pass through the middle of such common highways, and one side of such highways is situated in one parish, and the other side of such highways is situated in another parish, whereby great inconveniences have often arisen to such parishes in settling the time and manner of repairing and amending the same, and great detriment has arisen thereby to the public from the want of the due repair of such highways:" For remedy thereof, it is enacted, "that it shall and may be lawful for any two justices of the peace for any county, riding, or division, upon complaint (a) or application to them by any surveyor or any one of the surveyors of the highways of any parish, (stating to such justices in writing, and by a plan thereunto annexed, that there is situated in the said parish, and also in some other parish adjoining thereto, specifying the same, a certain common highway, particularly describing the same by metes, bounds, and admeasurement thereof, one side of which common highway ought to be made or repaired by one of such parishes, and the other side thereof by the other of such parishes), to issue their summons (b), bewith a copy of such writing and plan thereunto annexed, to the surveyor or one of the surveyors of the highways of such other parish, to appear fore them on a day to be mentioned in such summons, not more than fourteen days, nor less than seven days from the day of the date of such summons; and that in case the parties shall then appear before such justices, they may then proceed finally to decide the matter in the 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, the said justices shall adjourn the further con sideration of the matter for any further time, not more than twenty-one days, nor less than fourteen 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, (that is to say); that it shall and may be lawful for such justices, and they are hereby required, to divide the whole of such common highway by a transverse line crossing such highway 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 to declare, adjudge, and order (a), 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 of such highway on both sides thereof in the other of such parts, shall be maintained and repaired by the other of such parishes; and shall cause such their order, and a plan of such highway, and the allotment there of as before mentioned, to be fairly delineated on paper or parchment, and filed with the clerk of the peace of the county in which such highway shall happen to lie, and shall also cause such posts, stones, or other boundaries, to be placed and set up in such highway, as in their judgment shall be necessary for ascertaining the division and allotment aforesaid." It should seem, a material variance between the order made by the parties under this clause, and the one filed by the clerk of the peace, would be fatal to the whole proceeding. By a private Inclosure Act the commissioners were directed to fix and settle the boundaries of a parish in a certain manner therein specified, and to advertise in a provincial newspaper a description of the boundaries so fixed and settled. The boundaries so fixed and settled were also to be inserted in the award of the commissioners, and to be finally binding and conclusive. The commissioners having fixed and settled the boundaries in the mode specified, duly advertised a description of them, but the boundaries mentioned in the award differed from those which had been advertised. It was held, that the commissioners had not pursued the authority given by the act, and that their award was not binding as to the boundaries of the parish. R. v. Washbrook, 4 B. & C. 732; and R. v. Haslingfield, 2 M. & S. 558; and vide ante, 10. Sect. 2. "That from and after such order and plan shall be so filed with the clerk of the peace as aforesaid, such parishes and the inhabitants thereof respectively 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 or acts of Parliament, for the repair of the highways which are or shall be in force, in like manner as they are liable and subject to with respect to the repair of 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.' REPAIRS BY PARISH. Order, &c. to be filed with clerk of the peace. Each parish afterwards bound to allotted. repair the parts so Sect. 3. "That all costs, charges, and expenses to be incurred by reason of Costs of the proany of the proceedings before mentioned, shall be borne and defrayed by such ceedings. two parishes, the same being settled and ascertained by such two justices; and in case the said parties shall refuse or neglect to pay and discharge their respective share of such costs and expenses, it shall and may be lawful for either of such justices, or any other justice of the peace for the said county, riding, or division, to 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 so refusing or neglecting to defray such costs and charges as aforesaid." (a) Form, Div. I. post. REPAIRS BY INDIVIDUALS. Not to alter the boundaries of counties, &c. Not to relate to highways repaired by bodies politic, tenure, &c. without consent. Appeal. Certiorari. Forms. Sect. 4. "That nothing in this act contained shall extend, or be construed to extend to 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 amending and keeping in repair such particular portion of the highways in the manner hereinbefore mentioned." Sect. 5. "That nothing herein contained shall relate, or be construed to relate, to any highways, the repair of any part of which belongs to any bodies politic or corporate, township, or other such place, or to any private person or persons by the reason of tenure of any lands or otherwise howsoever, but that the same shall be construed to relate to such highways, the repair of which belongs to parishes only: provided always, that in case any such body politic or corporate, township, or other such place, or any such private person or persons as aforesaid, or any other person and persons, who shall be bound by law to repair one side of any part of any common highway, shall be desirous that the same should be placed under the regulations of this act, and that a division and allotment thereof should be made according to the provisions thereof, and the parties who are bound to the repair of the other side of the said highway shall consent thereto, it shall and may be lawful for such two justices to make an order for the division and allotment of such highway; and such order, when filed with the clerk of the peace, shall have the like force and effect to all intents and purposes whatsoever, as is herein directed with respect to the like order where parishes only are concerned." Sect. 7. "That it shall and may be lawful for either of the two parishes between whom any such allotment of any highway shall be made by virtue of this act, by an order in vestry specially called for the purpose, to appeal to the quarter sessions of the peace for the county where such parishes lie, to be holden next after the time when such order and plan shall be filed with the clerk of the peace as aforesaid, and not otherwise; and that upon the hearing of such appeal, the justices at such quarter sessions shall 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 in their discretion they shall think right; which order of the quarter sessions shall not be removed by writ of certiorari or otherwise, but shall be final, to all intents and purposes whatsoever. Sect. 8. "That such complaint, summons, adjudication, and plan, may be in the several forms stated in the appendix hereunto annexed, or as near thereto as the circumstances and nature of each particular case may admit.” Repairs in respect of an inclosure. V. Repairs by Individuals in respect of Enclosure. 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, incloses 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, s. 6; Duncombe's case, Cro. Car. 366; 2 Saund. 161, n. And if the way is not sufficient, any passenger may break down the inclosure, and go over the land, and justify it, till a sufficient way be made. 3 Salk. 182. See ante, 7. Also it hath been holden, if one inclose land on one side, which hath been anciently inclosed of 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, s. 7. Therefore, if there be an old |