charge and by whom highways ought to be repaired by the

common law.

And it seems that it is not necessary for the sheriff to give formal notice of the execution of the writ; it is sufficient if the jury be summoned impartially, and the inquisition be taken in a fair and open manner. Exparte Vennor, Hil. 1754. 3 Atkyns,

766.

But this inquisition being a proceeding exparte, it is travers. able; that is the party grieved may traverse or deny the matter of fact found by the inquisition, and put it in a course of trial, by the common law process of the court of Chancery.

And if the party traverse the inquisition, and issue be taken thereon and a verdict found, he cannot apply to the court of Chancery upon a suggestion of surprize, and a fraudulent and clandestine execution of the writ, for the traverse is a waiver of any objection in that respect. 3 Atkyns, 770.

But this course of proceeding by way of traverse being both expensive and dilatory, a more speedy remedy is given by 13 Geo. 3. c. 78, by allowing an appeal to the justices of the peace in such cases.

For it is enacted by that statute, sec. 19, That it shall be lawful for any person injured or aggrieved by the inclosure of any road or highway, by virtue of any inquisition taken, upon any writ of ad quod damnum, to appeal to the next gene. ral quarter sessions, giving ten days notice to the party interested, if there be time for that purpose; if not, to the next sessions after and the determination of such sessions skall be final.

Though the appeal is directed to the next quarter sessions, yet the justices may adjourn the quarter sessions itself to ano. ther day, or they may adjourn the particular matter to a subse quent sessions. And this appeal was thought, by Lord Hard. wiche, to be a waiver to any objection of surprize, or mal-exe. cution of the writ: because the statute has put the justices in the room of the traverse, upon which, as has been before ob. served, no such objection could be taken. 3 Atkyns, 770.

It is also certain, that the highway may be changed by the act of God; and therefore it hath been holden, that if a water which has been an ancient highway, by degrees changes its course, and goes over different ground from that wherein it used to run; yet the highway continues in the new channel, ia the same manuer as in the old. 1 Hawk. c. 76. s. 4.

For the powers given to justices of peace by STATUTE, to enlarge, divert, or stop up highways, see sec. II. of this title,

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Of common right the general charge of repairing all highways lies on the occupiers of the lands in the parish wherein they are, unless by prescription they can throw the burthen on particular persons by reason of their tenure. 1 Hawk. c. 76, s. 5. 4 Burrows Rep. 2511. 5 Burrows Rep. 2702. 2 Term Rep. 111.

And as the repair of the highway lies of common right upon the whole parish; the indictment notwithstanding the parish lies part in one county and the rest in another, must be preferred against the whole parish, and must be laid in that county where the ruinous road lies, for although it was heretofore held in the case of the K. v. Westm. 4 Burrows Rep 2507. that in such case the indictment ought to be against that part of the parish only where the ruin extends, yet this determination has been overruled and denied to be law in the more modern case of the K. v. Clifton, Hil. 34 Geo. 3,) the jurisdiction of counties is distinct; and if an indictment against the whole parish were found in one of the counties, it could not be inforced; one county having no jurisdiction over the inhabitants of a distinet county.

Also as the inhabitants of a parish are bound to repair all highways within their boundaries, they cannot be discharged from such liberty by any agreement with others. Rex v. Mayor of Liverpool, Mic. 43 Geo. 3. 3 East's Rep. 86.

It is also said that the tenants of the land adjoining the highway are bound to scowr their ditches. 1 Hawk. c. 76. s. 5.

And it is certain, that particular persons may be burthened with the general charge of repairing the highway in two cases; first, in respect of an inclosure of the land wherein it lies, and secondly, in respect of a prescription. 1 Hawk. c. 76. s.

5.

FIRST, A particular person may be bound to repair an highway in respect of an inclosure, 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 track; which liberty is taken away by the inclosure. 1 Hawk. c. 76 s. 6.

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 is made. 3 Salk. 182.

And it hath been holden, that 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 hait that way. 1 Sinderfin 464. 1 Hawk. c. 76. s. 7.

And so if one person makes an hedge on one side of the way and another person makes an hedge on the other side of the way

This he may lawfully do, of his own authority, but he is bound to leave subcient space and roum for the read, and he is obliged to repair it so long as he continues his inclosure. 1 Burrows 465.

they shall be chargeable to the repair thereof by moieties. 1 Sider. 464.

But it seems that a man is bound to repair a highway in re spect of an inclosure, no longer than whilst he continues; for if he lays it open again as it was before, he shall be freed from the charge of repairing it. 1 Siderfin, 464. 1 Hawk. c. 76. s. 7. 4 Burrows Rep. 465.

And if he alter or change the road by the legal course of a writ of ad quod damnum, he is not obliged to repair the new road, unless the jury impose such a condition upon him; for if they do not, the repair of the road stands just as it did before: even though it was at first open, and should be directed by the jury to be inclosed. 1 Burrows, 465.

For when a new road is made in pursuance of such writ, and inquisition thereupon found, it is incumbent on the parishio ners to keep it in repair; because being discharged from the repairing the old road, no new burthen is laid upon them: their labour is only transferred from one place to the other. 3 Alk. 766.

But if the new road lies in another parish, then the person who sued out the writ, and his heirs, ought not only to make it, but to keep it in repair; because the parishioners of such other parish gaining no benefit from the old road being taken away, it would be imposing a new charge upon them, for which they enjoyed no compensation. Ibid.

And a private act of parliament for inclosing common fields or other lands, which vests a power in commissioners to set out new roads by their award, is equally strong, as to these conse quences as a writ of ad quod damnum; therefore, unless it is otherwise directed in the act, the repair of such new roads clearly stands as it did before, and must by operation of law fall on the parish or township; and this is but reasonable; for if the person to whom an allotment was made near the highway was to be obliged to repair, it might make a vast difference in the value of the lands respectively allotted to each person: for one person's allotment might perhaps run along very far, by the side of the highway, and another person's allotment not lie at all near it. 1 Burrows 465.

But if the inhabitants of a township, bound by prescription to repair the roads within the township, be expressly exempted by the provisions of a road act from the charge of repairing new roads to be made within the township; then the charge must ne cessarily fall on the rest of the parish. The K. v. Sheffield, Mic. 28 Geo. 3. 2 Term Rẹp. 106.

However if an indictment for non-repair of a highway with in certain limits, charge a corporation with a prescriptive liability to repair all common highways, within such limits except such as ought to be repaired according to the form of the several statutes in such case made, it must also contain an averment

that the highway in question is not within any of the exceptions; for the circumstance of a statute being public, does not take away the necessity of such averment. Rex v. Mayor of

Liverpool, Mic. 43 Geo. 3. 3 East's Rep. 86.

And if the trustees under a road act, turn a road through an inclosure, and make the fences at their own expence, and repair them for several years, they cannot be compelled to continue such repairs, unless there be a special provision in the act to that effect.* 3 Term Rep. 232.

SECONDLY, A particular person may be bound to repair a highway in respect of a prescription. 1 Hawk. c. 76. s. 8.

And it is said, that a corporation aggregate, may 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 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 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. 1 Hawk. c. 76.

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But it is said, that a person cannot be charged with such a duty by a general prescription from what his ancestors have done, because no one is bound to do what his ancestors have done, unless it be for some special reason, as the having land descended from such ancestors, which are holden by such like service yet 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

This was determined in the case of The K. v. the Commissioners of Landilo District, Carmarthenshire, Hil. 23 Geo. 3. upon a motion for a mandamus to compel them to repair a wall on each side of a new road, which had been made through a church yard, under the authority of a road act. By a clause in the act, it was enacted, That "the trustees should apply the money raised by the "tolls, &c. in erecting gates and toll houses and repairing and widening the "said roads within their districts, and defraying the necessary costs, charges "and expences attending the same, and the execution of the said act."-the trustees had repaired the said walls for twenty years; but they now contended that the churchwardens ought to repair: that there was no special provision in the act, obliging the trustees to repair, and that their having hitherto repaired, could not make them chargeable in future; and by The Court, As no clause is inserted in the act, which throws the onus of repair on the trustees, we cannot make them liable; what is meant by a road in the act, is the surface over which the subjects have a right to pass: and where trustees, under an act of parliament, make a road through private property, for which the party is intitled to satisfaction, the jury in assessing the damages, must be taken to give him as much as will, besides the value of the land, indemnify the party for keeping up the fences between the road and the inclosure. 2 Term Rep.

A special ses. sions to held

annually for the highways.

always so done; for that is implied, in saying, that he has always used to do it, by reason of his tenure. 1 Hawk. c. 76.

s. 8.

But the indictment must set forth where those lands lie. ? Ilale's Hist. 181.

And it seemeth certain, that, whether a particular person be bound to repair a highway by inclosure or prescription ; yet the parish cannot take advantage of it, upon the plea of not guilty to an indictment against them for not repairing it, but ought to set forth their discharge in a special plea. 1 Hack. c. 76. s. 9,

And it is not enough to alledge generally, that a particular division or district, 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; for the inhabitants of the parish at large being bound by common law and of common right to repair highways, it must be expressly shewn, why the inhabitants of a particular division or district are obliged to repair. 5 Burrows 2702. 2 Term Rep. 513.

It therefore must be shown that they have immemorially repaired, and have used and been accustomed, and of right ought, to repair and ameud. 5 Burrows 2702.

II. At whose charge and by whom the highway ought to be repaired by the force of the statute.

The justices are to hold a special sessions for the highways in the week next after Michaelmas general quarter sessions in every year. 13 Geo. 3. c. 78. s. 1.

And they are to hold such special sessions at such convenient place within their limits as they judge proper, and to give notice (1) of the time and place where they intend to hod

(I) The form of a warrant for calling the meeting of the house. holders, and for fixing that of the justices for appointing sar veyors.

shire.

}

Monmouth-To the constables, headboroughs, and tiʼhingmen, within the (hundred, riding, division, liberty, or precinct, as the case shall be) of in the said county.

In order to carry into execution an act make in the thirteenth year of the reign of his majesty king George the Third, for the amendment and preservation of the public highways, you are hereby severally required forthwith to give public notice to the churchwardens, surveyors of the highways, and householders,