continuation of what is now contended to be a road; but that can make no difference as to the legality of this road. If the use of this as a public road be an object of great importance, the only way to have it made a legal road is by an application to parliament, who will exercise their discretion on the subject. On the whole of the case, I am of opinion that judgment should be entered for the defendants. DENMAN C. J. The question raised by this case was, whether the parish of Leake is bound to repair a road which runs along the top of a bank forty feet wide; in other words, whether this, which is unquestionably a road de facto, is also a road de jure. The bank was made in execution of certain works of drainage done under an act of the second of G. 3., and another act of the forty-first of G. 3.; and it is stated as a fact that "the said bank has been used by all persons for about twenty-five years as a public carriage-road without intermission, and is a very useful and convenient road to the public." It is further stated, that part of the indicted portion of the road was repaired by the parish of Leake ten years ago. All the terms in the definition of a public road are found in this statement. But it was argued that the bank in question cannot be a public road, because that would be inconsistent with the purposes of drainage for which it was raised, and with the superintending power vested in the commissioners for drainage purposes. The words relied on are, that "all banks made (as this was) under the 41 G. 3., as well as the cuts, drains, dams, forelands, and other works," should be made, done, 1833. The KING against The Inhabitants of LEAKE. 1833. The KING against The Inhabit ants of LEAKE. done, and executed under the direction and control, and to the satisfaction, of such general commissioners, and should, after the completion thereof, be vested in, and for ever afterwards remain, continue, and be subject to the power, jurisdiction, and sole control of the said general commissioners, or any five or more of them, in such and the like manner as if the same had been made, done, and executed under the authority of the former act above mentioned. We must therefore refer to the provisions of the former act, to see if it directs the banks to be maintained or regulated in any manner inconsistent with a right of passage over them. The former act gives power to the general commissioners to purchase lands for the purposes of the drainage, the purchased lands to be divested from the vendors and vested in the general commissioners. It appears that the general commissioners, by virtue of this power, purchased certain inclosed land, and the special commissioners cut a drain through it, and, with the soil cast out, made the bank (forty feet wide) over which the indicted road runs. The argument for the defendants at the bar proceeded on the assumption that the bank of a drain must, of necessity, be subject to obstruction from laying upon it soil out of the ditches, and from other obvious causes, so as to render the constant user of it as a public road impossible. But I think that we cannot draw such an inference judicially from the act; and the case does not allege the fact to be so. The words which place these banks under the control of the general commissioners are not of very clear import; but their primary object seems to be to exclude them them from the control of the special commissioners appointed by the subsequent act, who, after making them to the satisfaction of the general commissioners, were to have no more concern with them. The words of the clause referred to in the earlier act, and above stated, seem rather applicable to a property in the banks than to any mode of managing them. The words are certainly very extensive; sufficiently so, indeed, to enable the commissioners to devote the surface of the banks to any purpose whatever not inconsistent with the trust of draining the district. Now it can hardly be but that good roads should be extremely useful for the general purposes of the drainage, by facilitating the conveyance of persons and property; and such roads may be more easily procured and maintained by giving a right of passage to the public and casting the repair upon parishes, than by any other means enjoyed by the . commissioners. The case states that a part of this very bank, being a continuation of the indicted road, was set out as a road in 1820 by virtue of an inclosure act; and it does not appear that the general commissioners saw any reason to complain. I think, therefore, it is reasonable to infer that they, like the rest of the public, acquiesced in this use of the soil, from finding that their duties as commissioners might be perfectly discharged notwithstanding. And this appears by no means improbable in point of fact, when the width of the bank is remembered. A second point was, that the parish was not stated to have adopted the road, but only to have repaired it on one occasion. If the fact of adoption were necessary, this statement of evidence from which it might be inferred would be insufficient. But I by no means think any 1833. The KING against The Inhabit ants of LEAKE. 1833. The KING against The Inhabit ants of LEAKE. any distinct act of adoption necessary in order to make a parish liable to repair a public road: I am of opinion that if it is public, the parish is of common right bound to repair it. Judgment for the crown. Monday, 4946A party to an arbitration can94 not object to ADLE 9A48.700 1277 the award, that In the Matter of Arbitration between TUNNO and BIRD. D. POLLOCK, in Easter term, obtained a rule, calling upon Edward Rose Tunno to shew cause why the award made in this matter should not be set aside, on the grounds, first, that the umpire was appointed by lot; secondly, that Henry Lakin, one of the arbitrators, was not lawfully appointed; thirdly, that the arbitrators did not differ, and therefore the umpire, if mission to arbi- lawfully appointed, had no jurisdiction; fourthly, that the umpire made his award without hearing the evidence. The facts, as disclosed by the affidavits on each side, were in substance as follows:: Where a sub tration under seal, has been which both the assented, one of those parties cannot after- have the award Bird had been tenant to Tunno of farms, &c., which he was desirous to quit before his term expired. It was, therefore, agreed between them, by deed, that in consideration of that agreement and the mutual observance of the award to be made, Bird set aside on the should surrender the premises on the ensuing 29th of ground that the indorsement was not under seal. An umpire, being furnished by the arbitrators with the evidence taken before them, and having himself viewed the premises, the condition of which was in question, made his award without calling for further evidence, or giving any notice on that subject to the parties: Held, that the award could not be objected to on that ground by a party who knew that the case had gone before the umpire, and made no application to him to hear further evidence. September 1833. In the Matter BIRD. September; and that the differences and respective claims of the parties should be referred to the award, arbitrament, &c., of Adam Murray and William Jellicoe, or, of TUNNO and "in case they should not agree in opinion," of such third indifferent person as they should appoint by writing before entering on the reference. The choice of an umpire was as follows:- On the 2d of November 1832, six names, three proposed by Murray and three by Jellicoe, were written on papers and thrown into a hat, and the person whose name first came out (Staples) was chosen. The gentleman who drew acted as the attorney, and by the authority of Tunno; and had previously received a letter from Bird, introducing a Mr. Stallard as his (Bird's) friend, who would represent him "in the business of drawing for an umpire." This letter stated the manner in which Bird expected the proceeding to take place, and which was, in fact, adopted (a). (a) The letter, dated October 27th 1832, was as follows: "The bearer of this, Mr. Stallard, is a friend of mine, who will be so kind as represent me in the business of drawing for an umpire in the arbitration pending between Mr. Tunno and myself. His time is very limited in London; I shall therefore feel obliged by your making the arrangement for drawing as speedily as possible. If I understand the thing rightly, the six names are to be rolled up and placed in a hat, and drawn for; now, if you will prepare this, Mr. Stallard will draw, or, if you furnish that gentleman with the names on proper pieces of paper, he can prepare them for the hat, and you can draw. I am now writing at Worcester. I shall be at home on Tuesday, and expect, from my correspondence with Mr. Margrave," (Mr. Tunno's agent) "to find the agreement ready indorsed for my signature, which, in such case, I shall be able to execute prior to the 1st of November." In another letter to his agent, dated the 25th of October, Mr. Bird said," Mr. Jellicoe has stated, in his letter to Mr. Murray, that the names of the three gentlemen he before sent in he still approves, and therefore the six names may be put in a hat as proposed, and may be drawn or decided in Mr. Crowder's office. A friend of mine will be in London the early part of next week, who shall call on Mr. Crowder for the purpose of representing me in that matter." VOL. V. K k Stallard Ꮽ 9.17 |