the boundaries of a parish, and to advertise in a provincial newspaper such boundaries. The boundaries were also to be inserted in the award of the commissioners, and to be conclusive. The boundaries in the award varying from those in the newspaper, it was held that the commissioners had not pursued their authority, and that the award was not binding as to the boundaries of the parish. Rex. v. Washbrook, 4 B. and C. 732 (a). By a similar act, commissioners had power to settle the boundaries of certain parishes, upon giving certain previous notices to the parishes to be affected by the award. The highway in question, never having been repaired by the parish to which it was allotted, the judge refused to admit the award in evidence, until the requisite notices were proved to have been given; and upon an application for a new trial, it was refused. R. v. Hastingfield, 2 M. and S. 558. Where two parishes are separated by a river, the medium filum is the boundary. R. v. Landulph, 1 Moo. and R. 393.

Where a highway crosses the bed of a river which washes over it and leaves a deposit of mud, it seems the parish is not bound to repair that part. Ibid.

Evidence that a parish did not put guard fences at the side of a road, is not receivable on an indictment, which charges that the King's subjects could not pass as "they were wont to do," if no such fences existed before. Whitney's case, 7 C. and P. 208 (b).

After a verdict for the defendants on an indictment for the non-repair of a highway, the court will not grant a new trial on the ground of the improper rejection of evidence, but they will suspend *the judgment [ *522 ] in order that another indictment may be preferred. R. v. Sutton, 5 B. and Ad. 52 (c); 2 N. and M. 57.

Proof of liability to repair—inclosure.] Where the owner of lands not inclosed, next adjoining to a highway, incloses his lands on both sides the way, he is bound to make the road a perfect good way, and shall not be excused by making it as good as it was before the inclosure, if it were then defective; because, before the inclosure, the public used, where the road was bad, to go, for their better passage, over the fields adjoining, which liberty is taken away. And if the owner inclose one side only, he is bound to repair the whole, if there be an ancient inclosure on the other side; but if there be not such an ancient inclosure, he is bound only to repair half; and upon laying open the inclosure, he is freed, as it seems, altogether from the liability to repair. Hawk. P. C. b. 1, c. 76, s. 6, 7, 8; 3. Bac. Ab. Highways, (F); 1 Russell, 325; Welbeloved on Highways, 90; 2 Wm. Saund. 160, (a) n. 12; Woodrych on Ways, 80.

But where a highway is inclosed under the directions of an act of parliament for dividing and inclosing common fields, the party inclosing the way is not bound to repair. R. v. Flecknow, 1 Burr. 461. And so also with regard to a road made in pursuance of a writ of ad quod damnum. Exparte Venner, 3 Atk. 772; Hawk. P. C. b. 1, c. 76, s. 7.

Proof of liability to repair-particular districts and persons by prescription. Although prima facie, the parish is bound to repair all the ways within the boundaries, yet other bodies or individuals may be liable

(a) Eng. Com. L. Rep. x. 451. (b) Id. xxxii. 493. (c) ld. xxvii. 31.

to such repairs, to the exoneration of the parish. Thus a township, or other particular district, may, by custom, be liable to repair; and it is sufficient to state in the indictment, that the township has been used and accustomed to repair, and of right ought to repair. R. v. Ecclesfield, 1 B. and A. 348; R. v. West Riding of Yorkshire, 4 B. and A. 623 (a).

But where an indictment charged that the inhabitants of the townships of Bondgate in Auckland, Newgate in Auckland, and the borough of Auckland, in the parish of St. Andrew, Auckland, were immemorially liable to repair a highway in the town of Bishop Auckland, in the parish of St Andrew, Auckland, and no consideration was laid for such liability; the indictment was held bad in arrest of judgment, as not showing that the highway was within the defendants' district. But it was held to be no objection that the inhabitants of the three townships were charged conjointly. R. v. Inhabitants of Auckland, 1 A. and E. 744 (b).

Where it appears that a township has been used immemorially to repair all roads within it, such township is placed, as to repairs, in the same situation as a parish, and cannot discharge itself from its liability without showing that some other persons, in certainty, are liable to the repairs. R. v. Hatfield, 4 B. and A. 75 (c). Where a new way is made within the [*523] limits of the township, and which, had the parish been bound to repair, must have been repaired by the parish, such way must be repaired by the township. R. v. Ecclesfield, 1 B. and A. 348; R. v. Netherthong, 2 B. and A. 179. It appears that the liability of a township, or other district, has its origin in custom rather than in prescription; a prescription being alleged in the person, a custom in the land or place; and the obligation to repair is of a local, and not of a personal nature. R. v. Ecclesfield, 1 B. and A. 348. So it is said by Bayley, J., that a parish cannot be bound by prescription; for individuals in a parish cannot bind their successors. R. v. St. Giles, Cambridge, 5 M. and S. 260. The inhabitants of a township, or other district, cannot be charged to repair ratione tenure; for unincorporated inhabitants cannot, as inhabitants, hold lands. R. v. Machynlleth, 2 B. and C. 166 (d).

Upon an appeal against the appointment of a surveyor of the highways for the township of K. N., the sessions found that the parish of M. consisted of two townships; that surveyors had been appointed for each; but latterly, to save expense, there had been two surveyors appointed for the parish at large. They likewise found that each acted as surveyor in his own township; that distinct rates had been made for each township, and applied distinctly to the repairs of the highways in each; that the surveyors kept distinct accounts, (which were examined by the general vestry,) and that the occupiers of lands had been rated, in respect of their occupation, to the repair of the highways of that township in which the houses they resided in were situate. Lord Tenterden said, that if there had been an indictment against either township, and an allegation that each township had immemorially repaired the roads within it, these facts would be sufficient evidence to support the averment. R. v. Kings Newton, 1 B. and Ad. 826 (e).

On an issue whether or not certain land, in a district repairing its own. roads, was a common highway, it is admissible evidence of reputation, (though slight,) that the inhabitants held a public meeting to consider of

(a) Eng. Com. L. Rep. vi. 543. (b) Id. xxviii. 197. (c) Id. vi. 355. (d) Id. ix. 52. (e) Id. xx. 492.

repairing such way, and that several of them, since dead, signed a paper on that occasion, stating that the land was not a public highway; there being at the time no litigation on the subject. Barraclough v. Johnson, 8 A. and E. 99, ante, p. 512,

It seems that the inhabitants of a district, not included within any parish, cannot be bound to repair the highways within such district. This point arose, but was not decided in the case of R. v. Kingsmoor, 2 B. and C. 190 (a), which was an indictment against an extra-parochial hamlet. The court held that it should have been shown on the face of the indictment that the hamlet neither formed part of, nor was connected with, any other larger district, the inhabitants of which were liable to repair the road in question. Upon this point, the judgment for the crown was reversed; but Best, J., observed, "I can find no authority for saying that any thing but a parish can be charged. If the law authorizes no charge except upon parishes, places that are extra-parochial are not, by the general rule of law liable." See the observations on this [ *524 } case in Welbeloved on Highways, 81.

Proof of liability to repair-corporations.] A corporation, sole or aggregate, may be found by prescription or usage to repair a highway, without showing that it is in respect either of tenure or of any other consideration. Hawk. P. C. b. 1, c. 76, s. 8; R. v. St. Giles, Cambridge, 5 M. and S. 260.

Proof of liability to repair-private individuals.] A private individual cannot be bound to repair a highway, except in respect of some consideration, and not merely by a general prescription: because no one, it is said, is bound to do what his ancestors have done, except for some special reason, as the having land descending from such ancestors, which are held by such service, &c. Hawk. P. C. b. 1, c. 76, s. 8; Austin's case, 1 Ventr. 189; 13 Rep. 33; R. v. St. Giles, Cambridge, 5 M. and S. 260. Yet an indictment, charging a tenant in fee simple with being liable to repair, by reason of the tenure of his land, is sufficiently certain, without adding that his ancestors, whose estate he has, have always so done, which is implied in the above allegation. Hawk. P. C. b. 1, c. 76, s. 8. In order to exempt a parish, by showing that a private person is bound to repair, it must be shown that the burthen is cast upon such other person, under an obligation equally durable with that which would have bound the parish, and which obligation must arise in respect of some consideration of a nature as durable as the burthen. Per Lord Ellenborough, R. v. St. Giles, Cambridge, 5 M. and S. 260. Where lands, chargeable with the repairs of a bridge or highway, are conveyed to different persons, each of such persons is liable to the charge of all the repairs, and may have contribution from the others; for the law will not suffer the owner to apportion the charge, and thus to render the remedy for the public more difficult. Therefore, where a manor, thus charged, was conveyed to several persons, it was held that a tenant of any parcel, either of the demesnes, or of the services, was liable to the whole repairs. And the grantees are chargeable with the repairs, though the grantor should convey the lands discharged from the burthen, in which case, the grantee

(a) Eng. Com. L. Rep. ix. 60.

has his remedy over against the grantor. Reg. v. Duchess of Buccleugh, 1 Salk. 358; R. v. Buckeridge, 4 Mod. 48; 2 Saund. 159, (n.); 1 Russell, 325.

Repairing a highway for a length of time will be evidence of a liability to repair ratione tenure. Thus, if a person charged as being bound to repair ratione tenure, pleads that the liability to repair arose from an encroachment which has been removed, and it appears that the road has been repaired by the defendant twenty-five years since the removal of the alleged encroachment, that is presumptive evidence that the defendant repaired ratione tenure generally, and renders it necessary for him to show the time when the encroachment was made. Skinner's case, 5 Esp. [ *525 ] 219; 1 Russell, *326. In determining whether the act of repairing a way is evidence to prove a liability to repair ratione tenura, the nature of the repairs must be regarded. Thus, it is said by Hullock, B., that an adjoining occupier occasionally doing repairs for his own convenience to go and come, is no more like that sort of repair which makes a man liable ratione tenure, than the repair by an individual of a road close to his door, is to the repair of the road outside his gate. Allanson's case, 1 Lewin, C. C. 158.

By the 5 and 6 Wm. 4, c. 50, s. 62, highways repaired by parties ratione tenure, may be made parish highways on payment of an annual sum, to be fixed by the justices.

Proof for the defence-parish.] Upon an indictment against a parish for not repairing, the defendants may show under the plea of not guilty, either that the way in question is not a highway, or that it does not lie within the parish, or that it is not out of repair, for all these are facts which the prosecutor must allege in the indictment, and prove under the plea of not guilty. 3 Saund. 158, (n.) 3; 1 Russell, 331. But where a parish seeks to discharge itself from its liability, by imposing the burthen of repair upon others, this defence must be specially pleaded, and cannot be given in evidence under the general issue. In such special plea, the parish must show with certainty who is liable to the repairs. R. v. St. Andrews, 1 Mod. 112; 3 Salk. 183; 1 Ventr. 256; R. v. Hornsey, Carth. 212; Fort. 254; Hawk. P. C. b. 1, c. 76, s. 9. See also R. v. Eastington, 5 A. and E. 765 (a), where a plea alleging that a particular township had been accustomed to repair all roads within it," which otherwise would be repairable by the parish at large," was held bad, in arrest of judgment, because it did not aver that the highway was one which but for the custom would be repairable by the parish at large, and so did not show what party other than the defendants was liable to repair.

1

But where the burthen of repairs was transferred from the parish by act of parliament, Lord Ellenborough held that this might be shown under a plea of not guilty. R. v. St. George, 3 Campb. 222. Where the parish pleads specially that others are bound to repair, the plea admits the way to be a highway, and the defendants cannot under such plea give evidence that it is not a highway. R. v. Brown, 11 Mod. 273.

In order to prove the liability of a parish to repair, when denied under a special plea, the prosecutor may give in evidence a conviction obtained against the same parish upon another indictment for not repairing, and

(a) Eng. Com. L. Rep. xxxi. 436.

whether such judgment was after verdict or by default, it sive evidence of the liability of the whole parish to repair. cras, Peake, 219; Whitney's case, 7 C. and P. 208 (a). be an answer to such evidence. Peake, 219.

will be conclu

R. v. St. PanBut fraud will

A record of acquittal is not admissible as evidence of the non-liability of the parish acquitted, for it might have proceeded upon other grounds than the non-liability of the parish to repair. Ibid.

*But where an indictment has been preferred against a parish [ *526 ] consisting of several townships, and a conviction has been obtained, but it appears that the defence was made and conducted entirely by the district in which the way lay, without the privity or consent of the other districts, the indictment will be considered as in substance an indictment against that district only, and the others will be permitted to plead the prescription to a subsequent indictment for not repairing the highways in that parish. 2 Saund. 159, c. (n.); R. v. Townsend, Doug. 421. On an indictment for not repairing, against the parish of Eardisland, consisting of three townships, Eardisland, Burton, and Hardwicke, where there was a plea on the part of the township of Burton, that each of the three townships had immemorially repaired its own highways separately, it was held that the records of indictments against the parish generally, for not repairing highways situate in the township of Eardisland, and the township of Hardwicke, with general pleas of not guilty, and convictions thereupon were prima facie evidence to disprove the custom for each township to repair separately, but that evidence was admissible to show that these pleas of not guilty were pleaded only by the inhabitants of the townships of Eardisland and Hardwicke, without the privity of Burton. R. v. Eardisland, 2 Campb. 494.

Proof for the defence-district or private individual.] Where a particular district, not being a parish, or where a private individual by reason of tenure, is indicted for not repairing a highway, as the prosecutor is bound to prove the special ground of their liability, viz. custom, or tenure, under the plea of not guilty, so the defendants are at liberty under that plea to show that no such special grounds exist. In such case, it is not necessary for the defendants after disproving their own liability to go further, and prove the liability of others. But if, as in the case of a parish, they choose, though unnecessarily, to plead the special matter, it has been held that it is not sufficient to traverse their own liability, but that they. must show in particular who is bound to repair. R. v. Yarton, 1 Sid. 140; R. v. Hornsey, Carth. 213; 2 Saund. 159a (n.) 1; 1 Russell, 332. Where charged ratione tenure, the defendant may show that the tenure originated within the time of memory. Hayman's case, M. and M. 401 (b),

Competency of witnesses.] The prosecutor of an indictment against a parish for not repairing, is a competent witness to support the indictment. R. v. Hammersmith, 1 Stark. 357 (c); 1 Russell, 334.

But upon indictments charging individuals with the repairs, inhabitants of the parish in which the lands lie, are not competent witnesses for the prosecution. Thus, upon an information against the defendant for not repairing the highway between Stratford and Bow, none of the persons

(a) Eng. Com. L. Rep. xxxii. 493. (b) Id. xxii. 341. (c) Id. ii. 425.