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a common public stone-bridge, called Tone-bridge, with the approaches thereto, 100 yards in length, and 10 yards in breadth, at each end of the bridge, situate in the parishes of Taunton St. James and Taunton St. Mary Magdalen, in the said county, for carriages, &c., and that the said bridge, with the approaches thereto, on the 1st of July, 51 G. 3. was out of repair ; and that the said bridge and approaches thereto are not within any city or town corporate, and that it cannot be known or proved that any persons, lands, tenements, or bodies politic ought to make and repair the same, and that the inhabitants of the whole county of Somerset ought to make, build, and repair the same as often as need requires, according to the form of the statute.
The defendants pleaded that after the passing of the statute 49 Geo. 3. c. 84. (a), entitled an act for building
(a) 'The 49 Geo. 3. c. 84. (local and personal,) reciting that Tone bridge, &c. was very ancient and narrow, and inconvenient, and dangerous, and that it was necessary to rebuild it, and that the approaches leading to it should be widened; enacts that certain persons shall be trustees for taking down the old and erecting a new bridge there, and for widening and improving the approaches to it, and empowers them to collect tolls. It then enacts that it shall be lawful for the trustees, out of the monies raised by virtue of the act, to build the new bridge and pull down the old one, and erect a temporary bridge till the new one should be built, and to turn, widen, and alter the approaches to it, and to do all such other acts, matters, and things as they should think necessary, useful, and convenient for those purposes. It also empowers the trustees to borrow money and mortgage the tolls for not exceeding 10,0001. and apply the tolls to pay the expenses of the act, the interest of the money borrowed, and the expenses of making the bridge, &c. By another clause it is enacted that from and after the passing of the act, “The Tonebridge, &c. and all the materials, and also the new bridge, turnpikes, tollhouses, and other matters and things to be erected and provided by virtue of this act, shall during the continuance thereof belong to and be the property of and vested in the said trustees; and it shall be lawful for the said trustees to bring actions or direct the preferring of bills of indictment as the case may require,
a new bridge across the river Tone, &c. and after the 1812. 24th of June 1809, in that act mentioned, and before the 1st of July in the presentment mentioned, the said
against act being then and still in force, the trustees therein Thelnhabitants named under and by virtue of the authority and powers SOMERSET. vested in them by the said act, and to procure and raise the tolls imposed and payable by the said act, to wit, on the 1st of July in the presentment mentioned, did pull down, and cause to be pulled down the bridge then and at the time of passing of the said act standing across the river Tone, called Tone-bridge, in the presentment mentioned, and did begin to build the same upon a much larger and more expensive scale than the same was before, and did also begin to widen and alter the approaches leading to the said bridge within 100 yards of each end thereof, whereby the said bridge and the approaches thereto became ruinous, &c. and so remained continually from thenceforth to the making of the said presentment; the same bridge remaining incomplete and unfinished ; neither the said trustees, nor any of them, nor any other person having rebuilt or repaired the
against any person or persons who shall steal, take, or carry away, spoil, injure, or destroy the said bridge or other erections, &c., or the materials thereof, or other matters or things hereby vested in them as aforesaid, or any part thereof,” &c. By another clause, “ as soon as the several purposes of this act shall be carried into execution, and the principal and interest borrowed and secured on the credit thereof be paid, then and from thenceforth all the tolls hereby imposed shall cease and determine, and the said bridge and the ground forming the highways or approaches thereto, within 100 yards on each side thereof respectively, shall for ever thereafter be repaired and kept in repair by such person or persons as are by law liable to repair the said present bridge and highways or approaches, and such bridge and highways shall be vested in and belong to such person and persons in the same manner and no other, as the person or persons now liable to repair the said bridge are possessed of the same.”
same ; and that the purposes of the said act are not yet carried into execution, to wit, at the parishes of Taunton St. James, and Taunton St. Mary Magdalen aforesaid in the county aforesaid : by reason of which said premises the trustees aforesaid were and are bound and of right ought to repair the same bridge and the said approaches thereto during the continuance of the said act in force; without this, that the inhabitants of the said county, the said bridge and the said approaches thereto in the said presentment mentioned during the continuance of the said act in force, ought to repair and amend, when and as often as it shall be necessary in manner and form as in and by the said presentment is above supposed, &c. To this there was a general demurrer.
Burrough, in support of the demurrer, relied upon the rule that the county is liable to the reparation of a public bridge at all times, unless it can shew a discharge, and contended that this plea was bad, inasmuch as it did not amount to a discharge. The act of parliament upon which it is founded does not put the trustees in the place of the county, but contains provisions similar to those in almost every turnpike act, and only empowers the trustees, (it shall be lawful for them) but does not make it imperative upon them to build a new bridge; and therefore whilst it remains uncertain whether the trustees will do so or not, the common law liability must remain, otherwise the public would not be protected.
Lord ELLENBOROUGH, C. J. If the trustees are dilatory in executing the powers of the act, I am inclineá to think that the Court, upon application, would lend
its aid to expedite their functions. Such at least is my present opinion upon that point; but upon the question of liability I am decidedly of opinion that until the trustees have rebuilt the bridge the county is not liable. The words “then and from thenceforth” necessarily lead to that conclusion.
LE BLANC, J. During the time the act is in force the liability of the county is suspended; when the trustees have completed the object of it, then the liability is to revert back to the common channel.
BAYLEY, J. It would be useless to make the county repair, for the trustees might afterwards undo what the county had done.
Moore contrà, mentioned Rex v. Barlow (a), where the 13 & 14 Car. 2. c. 12. s. 18., which enacts that the churchwardens, &c. “shall have power and authority” (not “may” as stated by mistake in the report) was construed to be compulsory. Per Curiam,
Judgment for the defendants.
(a) Salk. 609.
Wednesday. The King against The Justices of Middlesex.
missal of the
The 14 G. 3. c. 78. 8. 96. JEKYLL moved for a mandamus to the justices (a building act) of Middlesex, commanding them at their next general does not enable the district sur- quarter sessions to hear an appeal made against an order lodges a com
of two justices, under the 14th G. 3. c. 78. (a), (the plaint before
building act). two justices on account of a
On the 7th of October last the district surveyor approjection made in front pointed under that act, lodged a complaint before two of a house, con- justices, within whose jurisdiction the complaint arose, provisions of against one Soane, on account of a projection made by peat to ap- him beyond the line of the front of his house in Linagainst the ad- coln's-Inn-Fields. Soane appeared before the justices,
who after having heard the complaint dismissed it, concomplaint of the two causes. ceiving that the projection was not within the meaning
of the act; and thereupon the district surveyor appealed to the sessions against that dismissal, and the appeal coming on to be heard on the 29th of October, it was objected that the surveyor had no right to appeal, as not coming within the 96th section, which gives the appeal. The justices, after argument, being of that opinion, refused to entertain the appeal. The 90th section enacts “that if any persons think themselves aggrieved by any conviction, commitment, distress, order, or judgment of any justice or justices of the peace made out of sessions by virtue of this act, such persons may appeal to the justices at their general quarter sessions, &c.” It was admitted that by the words conviction, commitment, and distress, and perhaps even
(a) 8. 49, 65, 96.