be admitted in evidence. A decision to this effect has been made upon an Inclosure Act, by which the Commissioners had authority to settle the boundaries of parishes, upon giving certain previous notices to the parishes to be affected by the award. The highway in question, had never been repaired by the parish to which it was awarded by the Commissioners, but by the one which had formerly made its repairs. And the Judge refused to admit the award in evidence, until the requisite notices had been proved to have been given. And upon application to the Court of K. B. a new trial was refused, Lord Ellenborough, C. J. observing, "That the general rule certainly is, that where a person is required to do an act, the not doing of which would make him guilty of a criminal neglect of duty, it shall be intended that he has duly performed it, unless the contrary be shewn. But in this case there is negative evidence, viz. that the parish of H, have continued to repair, which does away the presumption that all has been duly performed, because if that were so they ought not to have continued to repair (a).” By the 2d Section of the above Act, From and after such order and plan shall be so filed with the clerk of the peace as aforesaid, such parishes, and the inhabitants thereof respectively, shall be bound as of common right to maintain and keep in repair such parts of such common highway so allotted to them as aforesaid, and shall be liable to be prosecuted and indicted for neglect of such duty, and shall in all respects whatsoever be liable and subject to all the provisions, regulations, and penalties contained in any Act or Acts of Parliament for the repair of the highways which are or shall be in force, in like manner as they are liable and subject to with respect to the repair of any other common highway within such pa rishes respectively; and also shall be discharged from the repair of such parts of such highway, as shall not be included in their respective allotments. And by Section 3, All costs, charges, and expences incurred shall be defrayed by such two parishes, to be ascertained by such two justices; and if not paid, either such justices, or any other justice, may levy the same by distress and sale, with the costs of such distress, on the goods and chattels of any surveyor of the highways of the parish refusing or neglecting to pay. By Section 4, It is provided that nothing therein shall affect, change, or alter in any manner whatsoever, any boundaries of counties, lordships, hundreds, manors, or any other division of public or private property; nor the boundaries of any parishes, otherwise than for the purpose of keeping in repair such particular portion of the highways, in the manner before mentioned. By Section 5, It is declared, That nothing therein shall relate to highways repairable by bodies politic or corporate, townships, or such other places, or private persons, by reason of tenure of lands, or otherwise howsoever; but shall be construed to relate to such highways, the repair of which belongs to parishes only; unless such bodies or persons be desirous and shall consent that the same shall be placed under the regulations of this Act; in which case such two justices may proceed therein, in like manner as is herein directed with respect to parishes. By Section 7, Either of the two parishes, by an order in vestry specially called for the purpose, may appeal to the Quarter Sessions of the county where such parishes shall lie, holden next after such order and plan are filed them to be just, either by affirming, quashing, or amending the order of the two justices; and shall allow costs to either party as they shall think right; which order of Sessions shall not be removed by certiorari or otherwise, but shall be final to all intents and purposes whatsoever. By Section 8, Such complaint, summons, adjudication, and plan may be in the several forms stated in the Appendix therunto annexed, or as near thereto as the circumstances and nature of each particular case may admit (a). SECONDLY.-As to the liability of those who are bound to repair, by reason of inclosure, or by prescription. Although a parish is prima facie and of common right liable to repair all highways within its limits, yet particular persons may be burthened with this charge, in exemption of the parish, in two cases: 1st, In respect of inclosure; and 2d, by prescription. I. A person may be bound in respect of inclosure to repair a highway; by which is meant, that if the owner of the soil inclose any highway which traverses his land, and was before uninclosed, he thereby renders himself liable to maintain in good repair so much of the highway as he has inclosed. This branch of the law is peculiarly applicable to footpaths. The leading decision upon this point, is the one in Sir Edward Duncombe's case (b). The defendant was indicted, for that there being an ancient highway in Batlesdon, he had inclosed his lands on both sides thereof, whereby he had straightened it, and the way was become lutosa et founderosa; whereas by the law of the land he ought to have made it a sufficient way. Upon Not Guilty pleaded, and evidence to the jury at the Bar, it appeared to be a way betwixt two lands-ends, in the common fields, and that it was but four yards wide. But it was proved, that although he had made a causey reasonable good, at his own charge, for horsemen, yet carts and coaches might not pass, nor could meet for the straightness thereof, nor might go beside the way. And although it was also proved, that by this charge, he had made it better than it was before, yet, because he had made the hedges and the inclosure in that manner, he at his peril ought to maintain the way: And whereas before the parish was chargeable with the reparations, now by this inclosure, he is bound to repair it, and to make it a good way, and maintain it at his own charge and peril only. And Noy, Attorney-general, said, it was so resolved in 4 Jac. and 19 Jac. upon conference with all the Justices of England, which Richmond, C. J. affirmed (a). The inclosing a highway is considered to be an encroachment upon the rights of the public; for by it the passengers are deprived of their liberty of going over the adjoining land, whenever the way is impassable (b). Therefore the obligation to repair the way is imposed as a punishment for the aggression. And for the same reason, although a parish is not bound to keep a road in better repair than it has been in from time immemorial, yet we see from the above case, that greater rigor is exercised with regard to those who hedge upon the public rights, by obliging them to maintain a perfect good way. Also it seems that, if, after one has inclosed a highway, he suffer it to be so much out of repair as to be impassable, it is lawful for passengers to make gaps in his hedges, and to avoid the ill way, so that they do not (a) And see Styles, 364,-and Rex v. Hillarsden, 1 Keb. 894. them to be just, either by affirming, quashing, or amending the order of the two justices; and shall allow costs to either party as they shall think right; which order of Sessions shall not be removed by certiorari or otherwise, but shall be final to all intents and purposes whatsoever. By Section 8, Such complaint, summons, adjudication, and plan may be in the several forms stated in the Appendix therunto annexed, or as near thereto as the circumstances and nature of each particular case may admit ( a ). SECONDLY.-As to the liability of those who are bound to repair, by reason of inclosure, or by prescription. Although a parish is prima facie and of common right liable to repair all highways within its limits, yet particular persons may be burthened with this charge, in exemption of the parish, in two cases: 1st, In respect of inclosure; and 2d, by prescription. I. A person may be bound in respect of inclosure to repair a highway; by which is meant, that if the owner of the soil inclose any highway which traverses his land, and was before uninclosed, he thereby renders himself liable to maintain in good repair so much of the highway as he has inclosed. This branch of the law is peculiarly applicable to footpaths. The leading decision upon this point, is the one in Sir Edward Duncombe's case (b). The defendant was indicted, for that there being an ancient highway in Batlesdon, he had inclosed his lands on both sides thereof, whereby he had straightened it, and the way was become lutosa et founderosa; whereas by the law of the land he |