1. WHO LIABLE TO REPAIRS IN GENERAL. The observations already made as to the common-law liability of he This section applies to parishes. Barton, 11 Ad. & E. 343; 3 D. 190, S. C.) Et per Lord tan,-"I have no doubt upon this lon, though I was much struck with Byles's remark, that the parishes r to have no authorized agent who gree for them, as well as by his insarguments as to the variance ten the language of the correspondections in the two statutes, and the alty of carrying the provision into t in the case of parishes. But the difficulties on the other side are infinitely 8. Repairs, &c. of roads. Who liable to repair in general. Parish not exempt. Where old road diverted, new road becomes a high way. Persons liable by tenure, &c., to rerepair the new. pair old road, shall 8. Repairs, the act for making or maintaining any such turnpike road or roads shall &c. of roads. be mentioned." (See form of agreement, post, No. 77). Decision under local act. The above 6th and 7th sections of the 9 Geo. IV. c. 77, do not repeal the directions in the above 82nd section, and the 148th section (see post, 964) of the 3 Geo. IV. c. 126, or schedule xiv, annexed to that act, as te the form of agreement to subscribe_money for making and repairing a road. (Meigh v. Clinton, 11 Ad. & E. 418; 3 Per. & D. 211, S. C.) E per Denman, C. J.-"I think that statute (9 Geo. IV. c. 77) repeals only the provisions as to payment and recovery of the monies, and recognizes the previous enactments as to the writing to be subscribed.” And see Littledale, J.'s, judgment in this case. If the agreement be not such as the acts require, an action for calls cannot be supported by the party's acknowledgment, after the works have been commenced under the act, that he is liable as having signed. (Id.) An instrument in the following form, drawn up at a meeting of trus tees, and sent forth for subscription, will not warrant them in making calls upon a party signing it. "At a meeting" &c. " it appearing from the estimates," "that, to effect the object" &c., "namely, the new lite from" A. to L., "and the diversion" &c., "an expense of 4600!. will be involved," "it was proposed, that the necessary applications be made without delay, in order to raise funds to meet the expenses referred to, and the gentlemen undernamed have proposed to subscribe such sums for the purpose as are set opposite to their respective names, and which it is proposed to secure by way of mortgage on the tolls." (Id.) Assuming this writing to be a proper agreement, quære, whether it would be a defence to an action upon it, that before the act under which the trustees acted was passed, they (with defendants' knowledge) altered the proposed line: and whether such defence ought to be specially pleaded also, whether it would be a defence, that, after the act passed, (and before the above acknowledgment), the diversion was given t (Id.) A local turnpike act (3 & 4 Will. IV. c. liv.) empowered the trustees to take lands, making compensation, but enacted that the powers given should cease, if the trustees should not, within three year TE and pay for the lands required for the purposes of the act, or thereof as they should deem necessary or proper. In an action for calls under this statute, quære, whether it was a good plea, that the tras did not within three years agree or pay for the lands required for the purposes of the act (specifying the purposes), or so much of the said lands as the said trustees deemed necessary or proper. (Id.) Division of subject. VIII. Repairs, &c. of Turnpike Roads. Herein of : 1. Who are liable to such Repairs, p. 697. 2. How Repairs enforced, and herein as to Statute Duty being abolished, and of the Application of a Portion of the Highway Rate towards the Repair of Turnpike Roads, p. 698. 3. Subscriptions for, p. 700. 4. Materials for, p. 700. 5. Erection of Mile Stones, &c., p. 705. 6. Watering of Roads, p. 705. 7. Contracts for Repairs, p. 706. Highways, Turnpike. 1. WHO LIABLE TO REPAIRS In general. 697 8. Repairs, &c. of roads. pair in general. The observations already made as to the common-law liability of Who liable to repersons to repair highways will be here applicable. (Ante, 514, &c.) See ante, 509, as to the public not being liable to repair a road, autho The parish is not exempted from the common-law liability of repair- Parish not exempt. trustees to expend the funds in the improvement of them, and they are Duty of liable to pay a portion of a fine imposed upon the parish, upon a judgment against them, for neglect of repair. (Ante, 515; post, 707). becomes a high By the 3 Geo. IV. c. 126, s. 88, ante, p. 693, where an old turnpike Where old road road has been diverted, and a new road made, the new road becomes for diverted, new road ever a public highway, and must be repaired and maintained as such. way. pair old road, shall By 4 Geo. IV. c. 95, s. 68, after reciting that "Doubts have arisen Persons liable by and may arise, whether any body politic or corporate, or any particular tenure, &c., to reperson or persons, liable to repair, by tenure or otherwise, any old turn- repair the new. ought to repair or contribute to the repair of the whole or any part or proportion of the new road set out in lieu of the old turnpike road;" for obviating such doubts, and preventing disputes about the same, it is enacted, "That all and every body politic or corporate, and person and persons (a), who was, were, or shall be liable as aforesaid to the repair of any old turnpike road, which has been, since the passing of the said recited act, [3 Geo. IV. c. turned, shall respectively be and continue in the same manner liable o the repair of such new road set out in lieu of the old road, or so much hereof as shall be equal to the burthen and expense of repairing such ld road, from which he, she, or they shall be exonerated by the widenng, altering, diverting, or turning thereof; and if the several parties Of the peace of the county where such road shall be, and shall be setaterested therein cannot agree, the same shall be viewed by two justices led, adjusted, and determined by them, in such manner as they shall hink just and reasonable; and from and after such determination of the ustices, the body politic or corporate, and person or persons liable to pair such new road as aforesaid, shall bear all charges of presentments, adictments, and prosecutions for not repairing the same; and if it shall e found more convenient to fix a gross sum, or an annual sum, to be if fixing the part or proportion of such new road to be repaired by him, er, or them, the said justices may, with the consent of such person or t a meeting of such trustees or commissioners, order and direct the same ersons, and also of the trustees or commissioners of the road, obtained inal and conclusive, and shall continue binding on all bodies politic or ccordingly; and the order and direction of the said justices shall be orporate, and persons whomsoever." 126], or shall be widened, altered, diverted, aid by any such body politic or corporate, or person or persons, instead (a) This section applies to parishes. R. v. Barton, 11 Ad. & E. 343; Per. & D. 190, S. C.) 3 difficulties on the other side are infinitely Et per Lord intended to confine the enactment to greater. The legislature cannot have this the case of bodies politic or corporate, or individuals, bound by some special Denman,-"I have no doubt upon question, though I was much struck with can agree for them, as well as by his in stat. 4 Geo. IV. c. 95, are, no doubt, ill Mr. Byles's remark, that the parishes liability to repair in the two parishes appear to have no authorized agent who respectively. The words of sect. 68 of genious arguments as to the variance chosen, but we cannot doubt of the inbetween the language of the correspond- tention. The parishes must adapt such ing sections in the two statutes, and the difficulty of carrying the provision into effect in the case of parishes. But the L means as they have to this intention as well as they can." 8. Repairs, &c. of roads. 7 & 8 Geo. 4, c. 24. Lands liable to repair of roads, bridges, &c., to continue so. Contracts. How repairs enforced by indict ment. Mandamus. Jurisdiction of repairs. And by 7 & 8 Geo. IV. c. 24, s. 17, "Where any part or parts of any turnpike road, or any bridges, arches, drains, or sewers, lying in a upon such road, have been accustomed, or ought to be repaired an. maintained by any particular person, body politic or corporate, by re son of the tenure of any lands, tenements, or hereditaments, or other wise, or by any county, or any parish, or where any composition b been entered into or made in lieu thereof, all and every such part parts of such road, and all such bridges, arches, drains, and sewers, sha from time to time, be maintained and kept in repair by such perse body politic and corporate, county, or parish, or such composition sha be paid, in such manner as the same were respectively maintained kept in repair or paid before the passing the said recited acts, [56 IV. c. 126; 4 Geo. IV. c. 95], or of any local act for making or mait taining any turnpike road." As to contracts with persons liable to repair by tenure, &c. # post, 706. 2. How REPAIRS ENFORCED, AND HEREIN AS TO STATUTE DUTI A mandamus does not lie to compel the repairs of a turnpike no (R. v. Oxford and Witney Roads, 4 Per. & D. 154). See ante, 604, post, tit. "Mandamus," Vol. V. The jurisdiction of justices of the peace as to compelling the justices to compel of highways in general is, by the latter part of the 94th section of New Highway Act, (5 & 6 Will. IV. c. 50), extended to turnpike ro when the highway out of repair is part of a turnpike road. And see that enactment and the summary mode of proceeding before just ante, 588. By the 4 Geo. IV. c. 95, s. 80, all persons who by law were bound do statute work, or who were chargeable to the repairs and and of a turnpike road, were to remain liable thereto in the like ma they had theretofore been, and under the regulations pointed that act. There were also several other statutory enactments relat statute duty on highways, viz. the 77th, 81st, and 82nd sections of act; also the 3 Geo. IV. c. 126, ss. 105, 109. The liability to s work, however, is now wholly abolished by the 5 & 6 Will. IV. (see ante, 543), which repeals the prior statutes relating to it, viz. t Geo. III. c. 78, 34 Geo. III. c. 74, and 54 Geo. III. c. 109 (@); therefore, thought unnecessary to retain the enactments respecting this edition. By the 4 & 5 Vict. c. 59 (b), after reciting that by the 5 & 6 IV. c. 50, "divers statutes passed in the reign of his late Majesty George the Third, relating to the performance of statute duty, repealed, and statute duty was thereby altogether abolished:" that the revenues of some turnpike roads are so unequal to the and maintenance of such roads, after paying the interest and pri of the sums due upon mortgage of the tolls thereof, when deprived 66 (a) See, also, 4 Geo. IV. c. 95, ss. 77, 80, 81, & 82; 3 Geo. IV. c. 126, ss. 105 & 109; and 1 & 2 Will. IV. c. 25, s. 2. (b) See 2 & 3 Vict. c. 81, and Vict. c. 98,-the acts in force subject previous to the passing above act. id heretofore derived from statute duty, that it is necessary that some dditional provision be made for such roads, for a limited period:" it is nacted, "That it shall be lawful for the justices at any special sessions or the highways holden after the passing of this act, upon information -xhibited before them by the clerk or treasurer of any turnpike trust hat the funds of the said trust are insufficient (a) for the repairs of the urnpike roads within any parish, notice in writing of such intended nformation having been previously given on the part of such clerk or reasurer to the parish surveyor twenty-one days at least before such special sessions, to examine the state of the revenues and debts of such turnpike trusts, and to inquire into the state and condition of the repairs of the roads within the same, and also to ascertain the length of the roads, including turnpike roads, within such parish, and how much of such road is turnpike road, and if after such examination it shall appear to the aid justices necessary or expedient, for the purposes of any turnpike vad, so to do, then to adjudge and order (b) what portion, if any, of the ate or assessment levied or to be levied by virtue of the said recited et shall be paid by the said parish surveyor, and at what time or times, o the said commissioners or trustees, or to their treasurer or other fficers appointed by them on that behalf, such money to be wholly aid out in the actual repairs of such part of such turnpike road as lies within the parish from which it was received." 8. Repairs, &c. of roads. 4 & 5 Vict. c. 59. Parish surveyor neglecting to pay rate, it may be such portion of levied by distress. justices at quarter sessions (c). Sect. 2. "If any such parish surveyor shall refuse or neglect to pay over such portion of the said rate or assessment at the time or times and in the manner mentioned in the order of the said justices, the same hall and may be levied upon the goods and chattels of such surveyor, n such manner as penalties and forfeitures are by the said recited act uthorized to be levied." Sect. 3. "Provided that if any person shall think himself aggrieved Power of appeal to y any order, judgment, or determination made, or by any matter or ing done by any justices of the peace at any such special sessions, 1 pursuance of this act, such person shall be at liberty to make is complaint thereof by appeal to the justices of the peace at the next eneral or quarter sessions of the peace to be held for the county, ridng, division, or place wherein the cause of such complaint shall arise, ach appellant first giving to such justices ten days' notice in writing of he grounds of such appeal, within six days after such order, judgment, determination shall be so made or given as aforesaid, who are hereby equired, within forty-eight hours after the receipt of such notice, to return all proceedings whatever had before them respectively touching (a) In the 2 & 3 Vict. c. 81, s. 1, he words are 46 'wholly insufficient." Coleridge, J., in R. v. Justices of Berks, (8 Dowl. 727), held, that an order might be made under this section, although all the funds of the turnpike trustees were not exhausted. Where, by a local turnpike act, made before statute duty was abolished, the monies of which the trustees should become possessed were to be applied, first, to the costs of the act; secondly, to complete the road, to erect toll houses, and repair the road; and, thirdly, to pay the interest of money secured upon the tolls; and an order of justices was made, under the 2 & 3 Vict. c. 81, s. 1, for the payment of a portion of the highWay rate towards the repair of the road: the Court held, that the justices had power to make such order. (R. v. (b) The justices may order a specific ascertaining the proportion was wrong, (c) As to appeals in general, see |
