1818. The KING against The Inhabitants of NETHER- Wednesday, THONG. Nov. 18th. turnpike act, after empower ing the trustees under it to take tolls, directed should from repaired by the that the roads time to time be trustees out of the money aris ing by virtue of the act: Held that this only made the tolls an auxiliary fund in the hands of the trustees, and that the inhabitants of the INDICTMENT against the defendants, for non-re- Where a local pair of a road situated within their township. The prescription stated was, that the inhabitants of the township of Netherthong, in the parish of Almondbury, from time immemorial, had repaired, and had been accustomed to repair, and still of right ought to repair, when the same should be necessary, such of the common king's highways, situate within their township, as but for such usage and prescription would have been repairable by the parish at large. The road indicted was part of a turnpike road made under the provisions of a local act, passed in 1768, intituled "An act for diverting, altering, widening, repairing, and amending the road from Huddersfield, in the West Riding of the county of York, to Woodhead, in the county palatine of Chester, and from thence to a bridge over the river Mersey, called Enterclough Bridge, on the confines of the county of Derby." Before, and at the time of passing the act, no part of the antient high road for the diverting, &c. of which that act was made, passed through any part of the township of Netherthong. But there was way in that township, which previous to the passing the act had never been repaired at the expence of the township. About the year 1770, part of this cupation bridle-way, and some adjoining land in the that 13 G. 3. an occupation bridle oc township where the road was situate, who by prescription were bound to repair all roads within it, were nevertheless liable to be in dicted for non repair of the road. Held also, that such inha bitants may, after conviction, apply by motion for relief against the trustees under 13 G. 3. c. 84. s. 33. Held also, c. 84. s. 63. only refers to diversions under writs of ad quod damnum, and under 13 G. 3. c. 78, s. 19. 1818. The KING against The Inhabit ants of NETHERTHONG. township of Netherthong, were purchased by the trustees under the act for the purposes thereof, and thrown into and made part of the new turnpike road; and thus, for the first time, a part of that road was made. to pass through the township of Netherthong. This was the part of the road indicted. It was admitted, that the inhabitants of Netherthong were liable to the repair of all roads locally there situate, as charged in the indictment. Under these circumstances, the jury, at the trial, before Wood B., at the York summer asassizes, 1816, found a verdict for the Crown; but on a motion being afterwards made in this court, in Michaelmas term, 1816, by Scarlett, to set aside this verdict, and to enter a verdict for the defendants, the Court ordered the facts to be put into a special case. The following clauses in the local act were referred to in the argument. It was enacted, "that the lands, &c. purchased by the trustees, should be made use of and converted into, and be made part of the said road, in such manner as the trustees, or any seven or more of them, should think convenient and proper. And that the lands so to be converted into, and made part of the said road, should be sufficiently ditched and fenced out for that purpose, and from time to time repaired out of the money arising by virtue of that act, by such person or persons as such trustees, or any seven or more of them, should order, direct, or appoint; and that the new road should, to all intents and purposes, from thenceforth become, and be deemed and taken to be a public highway." The act contained a proviso, that nothing therein should be construed to be a discharge of any county, parish, township, &c. from the performance of statute work work upon, or otherwise repairing, any road, bridge, &e,, which they or any of them respectively have been accustomed, or of right ought to repair, by reason of the tenure of any lands, or by antient usage, or otherwise; but that all and every such road, bridge, &c., should thereafter be kept in repair, by such county, parish, township, &c., as heretofore the same respectively had been kept in repair. E. Alderson, for the Crown. It is admitted that the prescription laid in the indictment was proved: then if so, this township is in the same situation as a parish with respect to highways; and therefore, if a new highway is brought into the township, the inhabitants will be liable to the repair of it. Aspindall v. Brown. (a) It is to be contended, that here the trustees of the road and not the township are liable. But the only effect of that clause, in the local act, is to make the tolls in the hands of the trustees an auxiliary fund. The trustees are a fluctuating body, and are not liable generally, but only where they have funds; and it is not in the power of a prosecutor to ascertain that fact. It is therefore better that the inhabitants of the township, who are a fixed body, and can be known, should be held responsible, and that the tolls should be an auxiliary fund in the hands of the trustees. This was in fact decided by Rex v. St. George's, Hanover Square (b), which was a much stronger case than the present; and the way for the township to make the tolls available to them is clearly pointed out by 13 G. 3. c. 84. s. 33. (a) 3 Term Rep. 265. (b) 5 Campb. 222. N 3 Richardson, 1818. The KING against The Inhabit ants of NETHERTHONG. 1818. The KING against The Inhabit ants of NETHERTHONG. Richardson, contrà. The clause in the local act expressly makes the trustees liable; and this case differs from that cited, because here the inhabitants of a township are indicted, and there the indictment was against the parish. But secondly, it appears here, that no part of the old road passed through Netherthong; and the proviso expressly states, that nothing in the act shall be construed to be a discharge of any parish, &c., from any previous liability. The old road, which was diverted, was repairable by some other township; and if the inhabitants of Netherthong are held liable to repair the present road, that will operate as a discharge of the inhabitants of the other town through which the road formerly passed. And he cited 13 G. 3. c. 84. s. 63. on this point. There is nothing stated in E. Alderson, in reply. this case to shew, that the old sist in the adjoining township. do not raise the second point. is clear that 13 G. 3. c. S4. s. 63. only relates to those cases where roads were turned by order of two justices, in order to make the same nearer or more commodious, which power was given by 13 G. 3. c. 78. s. 19. And the clause in question places those diversions on the same foundation as those made by virtue of a writ of ad quod damnum, where the persons bound to repair the original road were also liable to the repair of the diverted road. Ex parte Vennor and Others. (a) Besides, the local act in this case passed in 8 G. 3., five years before the clause relied on by the defendants. (a) 3 Atk. 772. ABBOTT ABBOTT C. J. By the general rule of law, the inhabitants of any district who were liable to the repair of all the roads there, previously to the introduction of a new highway, are also liable to the repair of that highway. And the same rule extends to county bridges for the statute which passed to limit the liability of the county to those cases only where the new bridge is substantially built, shews sufficiently that, by the common law, they would otherwise be liable to the repair of all new bridges which might be erected within their district. Then, in this case, there is a new highway brought into the township of Netherthong. And it follows that the inhabitants, who by the prescription stated in the case are in effect placed in the same situation as that of the inhabitants of a parish, are liable to the repair of this new highway. And the proviso in the local turnpike act expressly says, that nothing therein contained shall exempt them from the liability which belongs to them. Then, can the clause which binds the trustees to repair make any difference? It is strange, if the trustees are liable, that in the multitude of turnpike acts, almost all of which must contain similar provisions to the present, no case has yet occurred of any indictment being preferred against persons in that situation. I think, therefore, that the trustees are not liable by way of indictment, and that the only persons who are so liable are the present defendants. If, however, they think proper to do so, they may still apply to this Court for relief, under the clause pointed out in the 13 G. 3. c. 84. BAYLEY J. When the local act made this road a public highway, for all intents and purposes, it must be N 4 con 1818. The KING against The Inhabitants of NETHERTHONG. |