not insisting on the wheels themselves being smooth-soled (which might be very inconvenient in their general use), nor upon the wheels themselves coming in contact with the surface of the road travelled over, provided they arc used either with shoes, by which we understand a smoothsurfaced shoe covering the whole surface of the tire, or, at the option of the owners, some other bearing surface of the minimum breadth of 9in., which shall in substance represent a smooth-soled wheel of that width, so that, when travelling along the road, the substituted bearing surface, as it comes in contact with the surface of the road, shall produce the same even, uniform, and continuous pressure which a wheel of the same dimensions and character would produce. In other words, we think that the Legislature, in permitting the use of shoes or other bearing surface, did not intend to confer upon the owners the privilege of using any but those which would produce upon the road travelled on the same pressure and effect as the wheels they had prescribed in the event of their being used without shoes or other bearing surface. We do not think the bearing surfaces used by the appellants upon the occasion in question were such as the statute intended to allow as a substitute for smooth-soled wheels, nor do we think that they would produce the same or similar pressure or effect upon the road travelled over. In Stringer v. Sykes (36 L. T. Rep. N. S. 152; L. Rep. 2 Ex. Div. 240; 46 L. J. 139, Mag. Cas.), this court decided that the bearing surface must be of a continuous width of 9in. across the wheel, and that a bearing surface of a width of 9in. made up of two flat bars each of the width of 4in., but with a break between them of 3in., bolted obliquely across the whole breadth of the wheel, was not sufficient to satisfy the statute, but that the statute required one uniform uninterrupted line of 9in. from side to side of the wheel; that is, that there should be one uninterrupted pressure of 9in. measured across the wheel. We entirely abide by that decision, and we go further and hold that such uninterrupted pressure must be continuous throughout the whole circumference of the wheel, save in so far as the joints of the material used may render perfect continuity impossible; for we do not intend to say that the bearing surface should throughout the whole circumference consist of one piece of material only, and we think that no shoes or bearing surfaces will be sufficient to satisfy the requirements of the statute unless they are similar to the tires of such wheels as the statute has prescribed, viz., uniform, continuous, unbroken (save as aforesaid), and smooth-surfaced bands, of the width of 9in. at least round the whole circumference of the wheels. It is not necessary for us to pronounce any opinion as to the degree of smoothness required in the surface of the wheels, shoes, or bearing surface, nor do we intend to do so; but we may observe that, although in the early part of the reign of Geo. III. it was enacted that so long as the fellies or tires did not deviate more than lin. from a flat surface, the wheels should be deemed to be flat according to the meaning of the Act, a deviation of a quarter of an inch only was allowed by the statute 4 Geo. 4; and it may well be that even that deviation would not be permitted if the question should hereafter arise whether the wheels of a locomotive are smooth-soled within MAG. CAS.-VOL. XI.

[CR. CAS. RES.

the meaning of the Locomotive Act 1861. Our opinion being that the conviction was right, this appeal will be dismissed with costs.

Conviction affirmed with costs. Solicitors for the appellants, Langham and Sons, agents for Langham, Hastings. Solicitors for the respondent, Kingsford and Dorman, agents for Dawes, Rye.

CROWN CASES RESERVED.

Saturday, Feb. 23, 1878.

(Before COCKBURN, C.J., CLEASBY, B., LINdley, MANISTY, and HAWKINS, JJ.)

REG. V. THE INHABITANTS OF ARDSLEY. (a)
- Parish
Non-repair
Township

Highway Repairs by adjoining township. The parish of D. is divided into seven townships, each of which has repaired its own highways with two exceptions, and there is an immemorial custom for each to repair all highways with the two exceptions within its limits. Each township has its own surveyors and highway rates, and the parish at large had never done any highway repairs, nor levied any rates, nor had any surveyors of highways.

The two exceptions were the piece of road in the defendants' township mentioned in the indictment which had been repaired by the adjoining township W., but for so doing there was no evidence of any consideration, and another piece of road in the defendants' township which had been repaired by sums of money paid by turnpike trustees and another township.

Held, that the Chairman of Quarter Sessions was right in directing the jury to convict the defendants, there being no legal liability on the township of W. to repair; the proper inference from the facts being that the defendants' township was liable by custom to repair its own highways. AT the General Quarter Sessions for the West Riding of the county of York, held at Doncaster, on the 19th Oct. 1877, the defendants, the inhabitants of the township of Ardsley, were tried on the following indictment, which charged that a certain part of a highway within the said township of Ardsley, which said township is one of seven townships which together form the parish of Darfield, in the said riding, was out of repair, and that by an immemorial custom it was the duty of the defendants to repair the said highway.

West Riding of Yorkshire to wit.-The jurors for our Lady the Queen, upon their oath, present that from the time whereof the memory of man is not to the contrary, there was and yet is a certain common and ancient Queen's highway leading from Wombwell, in the West Riding of the county of York, towards and unto Barnsley, in the said riding, used by and for all the liege subjects of our said Lady the Queen, and her predecessors, by themselves, and with horses, coaches, carts, and other carriages, to go, return, pass, repass, ride, and labour at their free will and pleasure; and that a certain part of the said common and ancient Queen's highway, being part of a highway called Wombwell-lane, situate in the township of Ardsley, in the riding aforesaid, commencing at the boundary between the said town(a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

2 E

CR. CAS. RES.]

ship of Ardsley and the township of Wombwell, in the said riding, such a boundary being at a point in the said highway distant 145yds. in a north-westerly direction from a bridge over the river Dove called Oldham, otherwise Oldham Bridge, on the said highway, where there are two gateways, the one on the south side of the said highway giving access to an accommodation road leading to a house called Quarry House, in the said township of Ardsley, and the one on the north side of the said highway giving access to a footpath leading to the village of Ardsley, in the said riding, and to an accommodation road leading to Low Laithes Grange, in the said township of Wombwell, and extending from the said boundary in a westerly direction for a distance of 539yds. in length, and from 8yds. to 10yds. in breadth, on the 17th day of April in the year of our Lord 1877, and continually afterwards until the day of the taking of this inquisition, at and in the township of Ardsley aforesaid, in the riding aforesaid, was and yet is very ruinous, miry, deep, broken, and in such decay for want of due reparation and amendment of the same, so that the liege subjects of our said Lady the Queen, in, through, and along the said part of the said common and ancient Queen's highway, by themselves, and with their horses, coaches, carts, and carriages, could not during the time aforesaid, nor yet can go, return, pass, repass, ride, and labour without great danger of their lives and loss of their goods, to the great damage and common nuisance of all the liege subjects of our said Lady the Queen, in, through, and along the said part of the said common and ancient Queen's highway, going, returning, passing, repassing, riding, and labouring, and against the peace of our said Lady the Queen her crown, and dignity. And that the inhabitants of the said township of Ardsley, in the said West Riding of the county of York, the said part of the common and ancient Queen's highway aforesaid (so as aforesaid being in decay) from the time whereof the memory of man is not to the contrary have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend when and so often as it shall be necessary.

2nd count. And the jurors aforesaid, upon their oath aforesaid, do further present that, on the 17th day of April 1877, and long before, there was, and from thenceforth continuously hitherto, there had been, and still is, a certain common Queen's highway, leading from Wombwell, in the said West Riding of the county of York, towards and unto Barnsley, in the said riding, used for all the liege subjects of our said Lady the Queen, to go, return, pass, and repass, on foot and on horseback, and with cattle, carts, and carriages, at their will and pleasure, and that a certain part of the said common Queen's highway being part of a highway called Wombwell-lane, and situate and being in the township of Ardsley, in the parish of Darfield, in the riding aforesaid, to wit, commencing at the boundary between the township of Ardsley aforesaid and the township of Wombwell in the said riding; such boundary being at a point in the said highway, distant 145yds., in a north-westerly direction from a bridge over the river Dove, called Oldham, otherwise Öldham Bridge, on the said highway, where there are two gateways, the one on the south side of the said highway, giving access

[CR. CAS. RES.

to an accommodation road leading to a house called Quarry House, in the said township of Ardsley, and the one on the north side of the said highway, giving access to a footpath leading to the village of Ardsley, and an accommodation road leading to Low Laithes Grange, in the said township of Wombwell, and extending from the said boundary in a westerly direction, for a distance of 539yds. in length, and from 8yds. to 10yds. in breadth, the said 17th day of April 1877, and from thence continually, until the day of the taking of this inquisition at and in the said township of Ardsley, in the said parish of Darfield, in the riding aforesaid, was, and still is, very ruinous, miry, deep, broken, and in great decay for want of due reparation and amendment of the same, so that the liege subjects of our said Lady the Queen in, through, and along the said part of the said common Queen's highway, with their horses, coaches, carts, and carriages, could not, during the time last aforesaid, nor yet can go, return, pass, repass, ride, and labour without great danger of their lives and the loss of their goods to the great damage and common nuisance of all the liege subjects of our said Lady the Queen, going, returning, passing, repassing, riding, and labouring, and against the peace of our said Lady the Queen, her crown and dignity. And that within the parish of Darfield afore said in the riding aforesaid from the time whereof the memory of man is not to the contrary there have been, and still are divers townships or districts whereof the said township of Ardsley during all the time last aforesaid hath been and still is one; and that the inhabitants of the said township of Ardsley, in the parish aforesaid, in the riding aforesaid, from the time whereof the memory of man is not to the contrary have repaired, maintained, and amended, and have been used and accustomed to repair, maintain, and amend, and of right ought to have repaired, maintained, and amended, and still of right ought to repair, maintain, and amend when and so often as it hath been or shall be necessary such and so many of the common highways situate, and being within the said township of Ardsley as would otherwise be repairable by the inhabitants of the said parish of Darfield at large; and that the said part of the said common highway hereinbefore mentioned to be ruinous, deep, miry, broken, and in decay as aforesaid now is and during all the time when the same part of the said common highway as above alleged to be ruinous, deep, miry, broken, and in decay as aforesaid, was a common highway situate in the said township of Ardsley, and which but for the said prescription and usage would be repairable, maintainable, and amendable by the inhabitants of the said parish of Darfield at large; and that by reason of the premises the inhabitants of the said township of Ardsley, in the parish of Darfield aforesaid, during all the time last aforesaid, ought to have repaired, maintained, and amended, and still ought to repair, maintain, and amend the same part of the said common highway so being ruinous, deep, miry, broken, and in decay as aforesaid, when and so often as it hath been and shall be necessary so to do.

3rd count. And the jurors aforesaid, upon their oath aforesaid, do further present that on the 17th April 1877, and long before there was and from thenceforth continuously hitherto there hath been and still is a certain common

CR. CAS. RES.]

Queen's highway leading from Wombwell, in the said West Riding of the county of York towards and unto Barnsley, in the said riding, used for all the liege subjects of our Lady the Queen to go, return, pass, and repass on foot and on horseback and with cattle, carts, and carriages at their will and pleasure, and that a certain part of the said common Queen's highway being part of a highway called Wombwell-lane, and situate and being in the township of Ardsley, in the parish of Darfield, in the riding aforesaid, to wit, commencing at the boundary between the township of Ardsley aforesaid and the township of Wombwell, in the said riding, such boundary being at a point in the said highway distant 145yds. in a north-westerly direction from a bridge over the river Dove called Oldham otherwise Oldham Bridge on the said highway, where there are two gateways, the one on the south side of the said highway, giving access to an accommodation road leading to a house called Quarry House, in the said township of Ardsley, and the one on the north side of the said highway, giving access to a footpath leading to the village of Ardsley, and an accommodation road leading to Low Laithes Grange, in the said township of Wombwell, and extending from the said boundary in a westerly direction for a distance of 539yds. in length, and from 8yds. to 10yds. in breadth, on the said 17th day of, April 1877, and from thence continuously until the day of the taking of this inquisition at and in the said township of Ardsley in the said parish of Darfield in the riding aforesaid was and still is very ruinous, miry, deep, broken, and in great decay for want of due reparation and amendment of the same, so that the liege subjects of our said Lady the Queen, in, through, and along the said part of the said common Queen's highway, with their horses, coaches, carts, and carriages could not, during the time last aforesaid, nor yet can go, return, pass, repass, ride and labour without great danger of their lives, and the loss of their goods, to the great damage and common nuisance of all the liege subjects of our said Lady the Queen, so going, returning, passing, repassing, riding and labouring and against the peace of our said Lady the Queen, her crown and dignity. And that the said parish of Darfield, from the time whereof the memory of man is not to the contrary, has been, and yet is divided into several (to wit, seven) townships, whereof the said township of Ardsley is, and immemorially has been, one. And that within the said parish of Darfield, from the time whereof the memory of man is not to the contrary, there always has been, and still is, a certain ancient and laudable custom there used and approved of; that is to say, that each of the said several townships within the said parish of Darfield from the time whereof the memory of man is not to the contrary, have repaired, maintained, and amended, and have used and been accustomed to repair, maintain, and amend, and during all the time aforesaid of right, ought to have repaired, maintained, and amended, and still of right ought to repair, maintain, and amend all and every the Queen's common highways, situate, lying and being within their own respective townships, that would otherwise be repairable, maintainable, and amendable by the inhabitants of the said parish of Darfield at large, when and so often as the same should have been or might be necessary;

[CR. CAS. RES.

and that the inhabitants of the said parish of Darfield at large have not during all or any part of the time aforesaid repaired, maintained, or amended, and have not been used or accustomed to repair, maintain, or amend the Queen's common highways within the said parish. And that the said part of the said Queen's common highway so being ruinous, miry, deep, broken, and in great decay, is situate within the said township of Ardsley; and, but for the usage and custom aforesaid, would have been, and would now be, repairable, maintainable, and amendable by the inhabitants of the said parish of Darfield at large. And that the said part of the said Queen's common highway, from the time whereof the memory of man is not to the contrary, always has been, and still is, repairable, maintainable, and amendable by the inhabitants of the said township of Ardsley. And the jurors of our Lady the Queen do further present that the inhabitants of the said township of Ardsley, the said part of the said common Queen's highway so being ruinous, miry, deep, broken, and in decay as aforesaid, ought to have repaired, maintained, and amended, and still of right ought to repair, maintain, and amend, when and so often as it should or shall be necessary so to do.

The following facts were proved at the trial, and were admitted to be correct by both the prosecutors and the defendants.

The parish of Darfield, in which the township of Ardsley is situate, is divided into seven townships, each of which (with the two exceptions hereinafter mentioned) has repaired its own highways. There is an immemorial custom for each township to repair all highways (with the two exceptions hereinafter mentioned) within the limits of the respective townships.

Each township has appointed its own surveyors, and levied its own highway rates.

There have never been any repairs done by the parish at large, nor have any rates been levied for the parish at large, and no surveyors have been appointed for the parish.

The portion of road indicted is within the township of Ardsley, and is out of repair; although the portion of road lies within the township of Ardsley yet down to the year 1868, since which time Wombwell has denied its liability to repair the same, and so far as its previous history can be traced, it has always been repaired by the adjoining township of Wombwell, but there is no evidence to show when and for what consideration (if any) Wombwell commenced to repair the road in question.

There is also in the township of Ardsley another road which was till three years ago a turnpike road leading from Doncaster to Saltersbrook, 500yds. of this turnpike road situate in the township of Ardsley, have from time to time been repaired by the township of Darfield (one of the the other seven townships into which the parish of Darfield is divided as aforesaid), Ardsley has repaired the remaining part of this turnpike road situate in Ardsley. These repairs (that is to say the repairs done by the township of Darfield, as well as those done by the township of Ardsley) were directed by the trustees of the turnpike road and paid for by them. The trustees paid a sum of money out of the tolls to the township of Darfield, and also a sum of money to the township of Ardsley to repair this road; and the sums of