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one of the grantees, being a tenant of any parcel, is liable to the whole charge, and must have contribution from the others. Therefore, where a manor, so bound, 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 repair, and might call upon the tenants of the residue to contribute. And that the grantees are chargeable with the repair, though the grantor should convey the lands or manor discharged of the burthen; in which case the grantees must have their remedy over against the grantor. And the reason seems to be, because the whole manor or land, being once chargeable with the repair, shall remain so notwithstanding any act of the owner. For the law will not suffer him to apportion the charge, and so make the remedy for the public benefit more difficult; or by alienations to insolvent persons to render the remedy against such persons quite frustrate. And though such lands or manor come into the hands of the Crown, yet the obligation or duty continues; and any person afterwards claiming the whole or any part of it under the Crown, will be liable to an indictment for not repairing (a).

And Mr. Hawkins says(b), that any particular inhabitant of a county, or tenant of land charged to the repairs of a bridge, may be made defendant to an indictment for not repairing it, and be liable to pay the whole fine assessed by the Court, for the default of repairs, and shall be put to his remedy at law for a contribution from those who are bound to bear a proportionable share in the charge; for the necessity of the case requires the greatest

(a) Regina v. Duchess of Buccleugh, 1 Salk. 358.-Rex v.

Rep. 48; and see 3 Vin. Ab. Apportionment, 5, pl. 9.

expedition in cases of this nature; for bridges being of absolute necessity, are not to lie unrepaired, till suits are determined.

In Rex v. The Inhabitants of Oxfordshire(a), to an indictment for not repairing a bridge, the defendants pleaded that Mr. Marsack was liable ratione tenure. At the trial it appeared that the bridge had always been repaired by the Cadogan family, who were formerly owners of the estate, then the property of Mr. Marsack. Mr.M. purchased the whole of the Cadogan estate, except about 100 acres, called Dirty Coppice, which Lord Cadogan still retained, and who, since the conveyance to Mr. M., had continued to repair the bridge. The learned Judge at the trial thought that this evidence was not sufficient to charge Mr. Marsack with the liability; and upon motion for a new trial, this opinion was confirmed by the Court of K. B., Lord Ellenborough, C. J., observing, "The defendants have not maintained their plea. It is pleaded, that Marsack and all those whose estate he has have immemorially repaired. Now there is no evidence that he and those who had the estate have repaired, for it appears that since he purchased the estate another person has repaired. It would have been more correct to have pleaded that he and those whose estate he has with others, have repaired, instead of which the burthen is cast on him impartibly, without giving him the benefit of a contribution from Lord Cadogan."

If a way, from the repair of which the parish (or, if it be a bridge, the county) is exempted by reason of others being bound thereto by prescription, be enlarged, it seems that those who were liable by the prescription shall

not have their burthen increased on account of such enlargement, but that the repair of the new part of the way shall be made at the expence of the parish, or county, as the case may be (a).

Thus where to an indictment against a riding for not repairing a public carriage bridge, the plea alleged that certain townships had immemorially been used to repair the said bridge: upon evidence, that this had been a foot bridge till the year 1745, when it was enlarged to a horse bridge, and in 1755 to a carriage bridge, by the townships and at their expence ; and that the riding had never repaired it: It was held that this evidence did not support the issue; that the townships were not liable to repair the carriage bridge; but that where townships have so enlarged a bridge, which they were before bound to repair as a foot bridge, they shall still be liable pro rata. For where a party is bound to repair a foot bridge, he shall not discharge himself by turning it into a horse or carriage bridge; but shall still repair it as a foot bridge (b).

It has been contended, on the part of the county, that where a bridge has been built by trustees under a Turnpike Act, who were thereby enabled to raise tolls, a quasi prescription binds them to keep in repair the bridge which they have built, in exemption of the county. This point, however, has been decided against the county, even where the Act of Parliament empowered the trustees to raise tolls, and also "to build, erect, repair, and keep in repair any bridge or bridges," &c. (c)

(a) See a provision to this effect, as to turnpike roads, in stat. 4 Geo. 4. c. 95. s. 68; and post, Chapter V.

of Yorkshire, 2 East, 353, note.
(c) Rex v. The Inhabitants of
Oxfordshire, 4 B. & C. 194. See
ante, p. 76, Rex v. Inhabitants of

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And in Rex v. The Inhabitants of the West Riding of Yorkshire (a), where a similar decision was made, it was said, that the tolls cannot be a consideration sufficient to support such a claim upon the trustees, as they enjoy no private advantage from the receipt of them.

As to pleading. -The following points, as to the proper

method of pleading a prescription to repair a highway,

are of use to exemplify what has been said upon the nature of such a liability.

Where a parish attempts to transfer to others the burthen of repairing their highway, by prescription or custom, they must state the obligation with certainty; and therefore they must shew how much of the way is liable to be repaired by such persons. Accordingly when to an indictment against the inhabitants of a parish for nonrepair of a highway within it, it was pleaded, that the parish was immemorially divided into seven townships, the inhabitants of which respectively were immemorially bound to repair the highways within their respective townships; and that part of the highway indicted was within the township of G. B. and the residue within the township of L. B., and that the respective parts ought to be repaired by the inhabitants of the respective townships: The plea was held to be defective, for not specifying what part of the highway was situate within the one township, and what part within the other (b).

And if a man be indicted, for that ratione tenure of certain lands he is bound to repair a bridge, and that

(a) See 2 East, p. 352, per

(b) Rex v. The Inhabitants of

it is in decay, it must be alleged where those lands lie (a).

In an information for not repairing a bridge, it was alleged, that defendant ought to repair, " because he now is and for divers years past hath been lord of the manor of B." &c. Upon motion in arrest of judgment, it was held, that although the defendant was lord of the manor, yet that was no reason why he should repair the bridge, but some particular charge ought to be shewn, as ratione tenuræ, or by prescription (b).

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It seems that the occupier, and not the owner, is the proper person against whom the indictment should be brought. For how are the public to know who is the owner of the lands charged with the repair? And it does not seem to be material what estate the occupier has in the lands liable (c).

THIRDLY.-As to the statutory provisions which have been made to regulate the reparation of highways (d).

The enactments which the Legislature has made for this purpose are in aid of, and supplementary to the common law. Their object is to appoint certain officers, called

(a) 2 Hale Pl. Cor. 181. (b) Regina v. Sir John Bucknall, 2 Ld. Raym. 804; and see Rex v. Kerrison, 1 M. & S. 435.

(c) Ibid.; and Regina v. Watts, 1 Salk. 357; and see 2 Wms. Saund. p. 158, note 9.

(d) The principal Highway Act is the stat. 13 Geo. 3. c. 78.

they are only supplementary, and they respectively incorporate all the prior provisions which are not thereby expressly altered or amended. See 34 Geo. 3. c. 74. s. 7. and 54 Geo. 3. c. 109. s. 9. The whole must therefore be considered as one Act, with regard to the reference between the several

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