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 an hedge on one side of the way, and another person make an 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, s. 7; 2 Saund. 160; Ambl. 295. But to relieve such person by such act, he must prove that the obligation to repair arose from encroachment. And where defendant removed an archway, which he called an encroachment, and the cause of his liability to repair, he was held still to be liable, as it was proved that the archway had been removed for 25 years; that the defendant had ever since repaired the road; and that, previously to its removal, it had been there longer than any living person could remember. R. v. Skinner, 1 Esp. R. 220. If the inclosure is made by act of Parliament, the obligation does not arise, R. v. Hickman, 1 Burr. 465, though the inclosure was made three years after the road. Where the way is altered, or changed and inclosed by a legal proceeding, as by a writ of ad quod damnum, or under the authority of the statutes 13 Geo. III. c. 78, and 55 Geo. III. c. 68, the owner of the land is not obliged to repair the new road, unless, in the case of a writ of ad quod damnum, the jury impose the burthen upon him, or the new road lie in another parish. Ex parte Venner, 3 Atk. 772; 1 Burr. 461; Wellb. 92. So, where a highway is inclosed under the authority of an act of Parliament for dividing and inclosing common fields, the person who incloses the way is not bound to repair it. Id.; and R. v. Commissioners of Llandillo, 2 T. R. 232. In the case of footpaths, all stiles between different inclosures must be kept in good repair by the occupier of the field. 1 Salk. 357, pl. 3; 7 Mod. 55. REPAIRS BY INDIVIDUALS. VI. Repairs by Endibiduals in respect of Prescription. A PARTICULAR person may be bound to repair a highway in respect of a par- Repairs by preticular prescription; and it is said, that a corporation aggregate may be com- scription. pelled 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 the 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, s. 8. An aggregate body of persons, who compose the inhabitants of a district or division in a parish or township, may be liable, by general prescription, to repair all highways in the district. R. v. Ecclesfield, 1 B. & A. 348; and the cases ante, 11. As to when an extra-parochial hamlet is liable by prescription, see ante, 11. We have seen that one parish is not liable, by prescription only, to repair highways in another parish. R. v. St. Giles's, 5 M & S. 260; ante, 11. In that case, on an indictment against a parish for non-repair of 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, for the plea ought to have shewn a consideration. REPAIRS BY INDIVIDUALS. Justices, on information of surveyor, may order highways, liable to be repaired by tepaired within a li nure, &c. to be re mited time; and, if not repaired within that time, may present them. Persons enfeoffed with lands for the maintenance of An individual, who is charged with repairs ratione tenura, cannot excuse himself by a plea, that the grantor conveyed the lands to him discharged of the burthen; 2 Saunders, 159; and the tenant of each part of the land is liable to the whole burthen; and if the crown becomes the owner of them, and grants any part of them, the obligation to repair will revive, and the grantee be liable. Regina v. D. of Buccleugh, 1 Salk. 358. The owner of land, however, is not bound to repair a new road made by virtue of a writ of ad quod damnum; but the parish is liable, because their labour is transferred only from the old to the new road. But if the new road lies in a different parish from the old, he who sues out the writ must make and repair the road; Ex parte Venner, 3 Atk. 771; though the mere fact of making a road will not render the maker liable to repair. R. v. Wood, Cro. Car. 266. Here, the writ had been sued out, but no licence granted. 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, s. 8. And in the case of Rider v. Smith, 3 T. R. 766, it was determined, 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. The indictment must set forth where those lands lie. 2 Hale, 181. A presentment by a justice against individuals liable to repair, for not repairing, is permitted by 13 Geo. III. c. 78, s. 23. See the clause infra, and post, Sect. XIV. (2). Where lands have been given for the repair of the road, justices are authorized to apply the rents. Id. s. 51, infra. The trustees of turnpike roads have a general power to negotiate with individuals bound to repair roads within their trust. 3 Geo. IV. c. 126, s. 106, post, Highways, Turnpike. VII. Statutes enforcing Repairs, where Parish not liable. By stat. 13 Geo. III. c. 78, s. 23, "every surveyor shall and may from time to time give information (a) upon oath to the said justices, or any two or more of them, of all such highways, and of all bridges, causeways, or pavements, upon such highways as are out of repair, and ought to be repaired by any person or persons, bodies politic or corporate, by reason of any grant, tenure, limitation, or appointment of any charitable gift, or otherwise howsoever; and the said justices shall limit a time for repairing the same; of which notice shall be given by the said surveyor to the occupier or occupiers of the lands or tenements liable to the burthen of such repairs, or to such other person or persons, bodies politic or corporate, as are chargeable with the same; and if such repairs shall not be effectually made within the time so limited, the said justices shall, and are hereby required to present such highways, bridges, causeways, or pavements, so out of repair, together with the person or persons, bodies politic or corporate, liable to repair the same, at the next general quarter sessions of the peace for the limit wherein such highway shall lie; and the justices at such quarter sessions may, if they see just cause, direct the prosecution to be carried on at the general expense of such limit, and to be paid out of the general rates within the same.' Sect. 51. "Where any lands have been, or shall be, given for the maintenance of causeways, pavements, highways, and bridges, all such persons who are or shall be enfeoffed or trusted with any such lands, shall let them to ways, and bridges, farm at the most improved yearly value, without fine; and the justices of the causeways, high shall let them to (a) Form, Div. XI. post. peace, in their open sessions, shall and may inquire, by such ways and means STATUTE DUTY. As to enforcing repairs by indictment at common law. See post, Sect. Indictment. VIII. Statutes enforcing Repairs where Parish liable. IN aid of the common law, statutes have been passed to enforce the proper repair of highways. The principal act now in force is the 13 Geo. III. c. 78, (termed the general highway act); and besides this, there are the auxiliary acts of 34 Geo. III. c. 64; 34 Geo. III. c. 74; 42 Geo. III. c. 90, s. 174; 44 Geo. III. c. 52; 54 Geo. III. c. 109; 55 Geo. III. c. 68; and 7 Geo. IV. c. 64, s. 16. The acts and law relating to turnpike roads will be found post. We will classify these enactments, and the constructions to be put thereon, Division of subunder the following order: ject. 1. Personal labour, (or, in its technical words, "statute duty,") how performed, and who liable to. 2. Compositions in lieu thereof. 3. Assessments in aid of repairs. 4. Materials for repairs. 5. What highways to be repaired first. 6. Width of highways. 7. Direction-posts, mile-stones, &c. (1) Statute Duty, and how performed, &c. Persons keeping a team, draught, or plough, and not occupying above 50%. a-year in the resides, shall send for six days one carriage and two parish where he By stat. 34 Geo. III. c. 74, s. 4 (a), "the said surveyor to be appointed by Proportions of the said act (post, Sect. XII.) together with the inhabitants and occupiers (b) statute labour. of lands, tenements, woods, tithes, and hereditaments, shall, at proper seasons in every year, use their endeavours for the repair of the highways, and shall be chargeable thereto as followeth: (that is to say), every person keeping a waggon, cart, wain, plough, or tumbrel, and three or more horses or beasts of draught, used to draw the same, shall be deemed to keep a team, draught, or plough, and be liable to perform statute duty with the same, in the parish, township, or place, where he resides; and shall, six days in every year (c), (if so many days shall be found necessary), to be computed from Michaelmas to Michaelmas, send, on every day and at every place, to be appointed (d) by the surveyor for the amending the highways in such parish, township, or place, one wain, cart, or carriage, furnished, after the custom of the country, with oxen, horses, or other cattle, and all other necessaries fit to carry things for that purpose, and also two able men with the same; which duty, so performed, shall excuse every such person from his duty in such parish, township, or place, in respect of all lands, tenements, woods, tithes, or hereditaments, not exceeding the annual value of 50%., which he shall occupy therein;" "And every person keeping such team, draught, or plough, and occupying in the same parish, township, or place, lands, tenements, woods, (a) By this statute, which was passed to explain and amend the regulations in the General Highway Act, 13 Geo. III. c. 78, respecting statute duty, it is enacted, s. 7, that all the clauses, powers, and provisions contained in stat. 13 Geo. III. c. 78, (except such as were thereby repealed or altered), should continue in force in the same manner as if they were re-enacted in that act. (b) See the construction of this, and who are liable, post, 20, and further post, 29, Assessments. (c) As to when persons may exempt themselves, during the seed months, post, 20. (d) As to such appointment-post, 21. men. If occupying 507.a- or 50%. a-year in another parish. STATUTE DUTY. tithes, or hereditaments, of the yearly value of 501. over and beyond the said yearly value of 50l., in respect whereof such team duty shall be performed; and every such person occupying lands, tenements, woods, tithes, or hereditaments, of the yearly value of 50l., in any other parish, township, or place, besides that wherein he resides;-and every other person not keeping a team, draught, or plough, but occupying lands, tenements, woods, tithes, or hereditaments, of the yearly value of 50l., in any parish, township, or place; shall in like manner respectively, and for the same number of days, find and send one wain, cart, or carriage, furnished with not less than three horses or four oxen, and one horse, or two oxen and two horses and two able men, to each wain, cart, or carriage, and in like manner for every 50l. per annum respectively, which every such person shall further occupy in any such parish, township, or place, respectively; such wains, carts, or carriages, to be employed by the surveyor in the repairing and amending the highways within the parish, township, or place, where such lands, &c. shall respectively lie;" Persons not keeping a team, draught, or plough; or keep ing one, and occupying lands in another township, shall pay a sum in lieu. Keeping a team, 301. a year. "And every person who shall not keep a team, draught, or plough, but shall occupy lands, tenements, woods, tithes, or hereditaments, under the yearly value of 50l. in the parish, township, or place where he resides, or in any other parish, township, or place; and every person keeping a team, draught, or plough, and occupying lands, tenements, woods, tithes, or hereditaments, under the yearly value of 50l. in any other parish, township, or place, than that wherein he resides; shall respectively contribute to the repair of the highways, and pay to the surveyor of such parish, township, or place respectively, in lieu of such duty, the sums following," &c. [See now as to such sums, stat. 54 Geo. III. c. 109, s. 5, post, 27.] "Provided that no person keeping such team, draught, or plough, and and not occupying performing duty with the same as aforesaid, in the parish, township, or place where he resides, and not occupying lands, tenements, woods, tithes, or hereditaments, within the same, of the yearly value of 301., shall be obliged to send more than one labourer with such team, draught, or plough.” [See as to the compositions in lieu of statute duty, post, 21.] Keeping one or more carts, and one or two horses, &c. only. Team duty may be exchanged for labourers. The surveyor may call for part of a team where he By sect. 2, "every person who shall not keep a team, draught, or plough, but shall keep one or more cart or carts, and one or two horses or beasts of draught only, used to draw in each of such carts upon the highways, shall be obliged to perform his statute duty for the like number of days with such cart or carts, and horse or horses, or beasts of draught, and one labourer to attend each cart; or to pay for the lands, tenements, woods, tithes, and hereditaments which he shall occupy according to the rate hereinafter mentioned, at the option of the surveyor." [See as to persons keeping a coach, but no cart, &c., post, 27, 28.] "And if the said teams, draughts, or ploughs, or any of them, shall not be thought needful by the surveyor on any of the said days, then every such person who should have sent any such team, draught, or plough, according to the directions aforesaid, shall, according to the notice given as hereinafter directed, send unto the said work for every one so spared three able men, there to labour as aforesaid, or to pay to the said surveyor 4s. 6d. in lieu thereof, at the option of the surveyor. [See the remainder of this section, post, 19.] By stat. 13 Geo. III. c. 78, s. 36, "it shall and may be lawful for the surveyor, where the employment for teams is of such sort that two horses thinks it necessary. will be sufficient for one cart, or where a stand cart with one horse shall be necessary, to call upon any person liable to send a team, draught, or plough, by virtue of this act, who keeps one or more cart or carts, and three or more horses, to send such cart or carts, horse or horses, to perform his statute duty, as the surveyor shall find most convenient, and shall direct; and the surveyor shall allow every such stand cart and one horse as half a team, and every cart and two horses as two-thirds of a team; and if a waggon shall be found necessary for any particular business, the surveyor may require the duty, or any part thereof, to be performed with such waggon, by any person who keeps one; which directions of the surveyor shall be observed, or the What notice to be given for perform- Forfeitures for person liable to perform such duty shall forfeit such sum as the duty so re- STATUTE DUTY. See further as to a conviction under this section, post, 21. Application of the call forth the du ly. when the whole cessary. By stat. 34 Geo. III. c. 74, s. 2, " and all such persons as aforesaid (ante, Tools to be 17) shall respectively have and bring with them such shovels, spades, picks, brought. mattocks, and other tools and instruments, as are useful and proper for the purposes aforesaid." "And all the said persons and carriages shall diligently perform the work Manner of workand labour to which they shall be appointed by such surveyor for eight hours ing. in every of the said days, within such parish, township, or place, or in getting and carrying materials in and from any other parish, township, or place, to be employed in the repair of the highways of the parish, township, or place, for which they shall be required to perform such duty and labour as aforesaid." "And if any person sending a team as aforesaid, shall not send a sufficient labourer besides the driver, (except as before-mentioned), or if any such labourer or driver, or the driver of any cart, required to perform statute duty as aforesaid, shall refuse to work and labour during the time above mentioned, according to the direction of the surveyor, or if any driver shall refuse to carry proper and sufficient loads, it shall and may be lawful for such surveyor to discharge every such team, cart, or labourer, and to recover from (a) Form, Div. II. post. (b) See the further penalty imposed, 54 Geo. III. post, 21. Penalty for not- to the direction of |