particular mode; per Holroyd and Bayley, JJ., 2 B. & Ald.

648.

I may refer also to Lord Denman's judgment in Regina v. Bristol Dock Co., 2 Q. B. 64, though it is not a highway case. In giving judgment for a peremptory mandamus to repair and maintain parts of the bank of the channel of the river Avon, he said (p. 70): "On argument, objection was taken to the writ, because it only enjoined the doing that for omitting which the company are liable to indictment. But we think, even if such an objection did not come too late after the writ has issued, that it is entitled to no weight. Those who obtain an Act of Parliament for for executing great public works are bound to fulfil all the duties thereby thrown upon them, and may be called upon by this Court so to do. If this breach of the contract causes a public nuisance also, that cannot dispense with the necessity of a specific performance of the obligation contracted by them."

I think the duty of the council under the enactments we are considering, is less analogous to the general liability to keep highways in repair, than to those duties cast upon public companies, such as railway companies, by their charters or by acts of parliament, with respect to the restoration of roads or the building of bridges, which have always been enforced by mandamus.

One instance is Regina v. Birmingham, &c., R. W. Co., 2 Q. B. 47, in which the turnpike road, carried over the railway, was to be restored to its former width. A mandamus was granted to make the approaches to the bridge the full width of the road; and the case of Regina v. The Wycombe R. W. Co., L. R. 2 Q. B. 310, will be found instructive, the report giving the return to a mandamus to compel the company to restore a highway which had been diverted and to carry it over the railway by a bridge, together with the proceedings and judgment upon the question of the liability of the company.

I do not think it necessary to occupy time by referring to others of the numerous cases on the subject, and I do not profess to have examined them all. I take it to be the

law and to be clearly apparent from the cases I have referred to, that the existence of liability to indictment does not of necessity exempt from compulsion by mandamus any party, whether an individual or a corporation, who is charged by statute with a specific duty, even though that duty may relate to the making or maintaining some part of the public highways; and for the purpose of our present investigation I do not consider the general obligation to keep existing roads in repair such a specific duty, notwithstanding that it may be imposed by statute.

In considering the adequacy of the remedy by indictment in comparison with that by mandamus, it is, I think, proper to bear in mind that under our legislation, now found in R. S. O. ch. 52, the proceeding by mandamus is simpler and less cumbrous and expensive than in former times; and that it possesses the advantage, the absence of which in some cases of indictment was pointed out by his lordship the Chief Justice in Regina v. Yorkville, 22 C. P. 431, of admitting of review by the Court of Appeal and the Supreme Court.

The present Chief Justice of the Queen's Bench suggested, in Brooks v. Haldimand, 41 U. C. R. 381, a doubt whether an appeal lay when the court entertained a motion for mandamus in the first instance, and not by way of appeal from a judge in chambers under 35 Vict. ch. 14 (O.), which gave power to judge in chambers to grant the writ, and made his decision appealable to the full Court, with a further appeal to the Court of Error and Appeal. The uncertainty was removed by the provision contained in R. S. O. ch. 38 sec. 18 (b), which had been enacted before the delivery of the judgment, by 40 Vict. ch. 7, but only came into force on 31st December following, as part of the revised statutes.

Part of the argument of the master of the rolls in Re Nathan, 12 Q. B. D. 461, in favor of petition of right as against mandamus, founded on the simplification of procedure by modern legislation, will, mutatis mutandis, apply in this case, in favor of mandamus as against indictment.

In Tapping on Mandamus it is pointed out that "procedure by indictment does not terminate the question, for it may be delayed by certiorari, and the prosecutor is not entitled to costs from the county; whereas a mandamus is a festinum remedium, and the court has a discretionary power as to the costs by statute." (p. 25.)

We have in this province (R. S. O. ch. 52,) not only assimilated the proceedings on mandamus to ordinary actions, as was done in England by 6 and 7 Vict. ch. 67, and the Common Law Procedure Act, 1854, but have gone still further towards making the remedy simple and convenient; while they have in the Imperial legislation given more attention than has been given in this country to the regulation of matters connected with proceedings by indictment for non-repair of highways, such as the costs of the prosecution, appropriation of fines &c. See 5 & 6 Wm. IV. ch. 50; 25 & 26 Vict. ch. 61, and as to turnpike roads, -3 Geo. IV. ch. 126.

Under these statutes all fines for non-repair are applied to the repair of the highways &c.; but from early times it seems that fines on indictments were always so expended, which under the English system, must have tended to make indictment something more of a specific remedy than it is with us. See Rex v. Steyning, Sayer's Rep. 92, cited arguendo in 10 Q. B. at p. 830.

One of the earliest, if not the very earliest of the decisions on the subject before us, in our own Courts, is the case of the Township of Augusta v. The United Counties of Leeds and Grenville, 12 U. C. R. 522. It was in 1855, and therefore before the statute of 1858 had declared that roads should be kept in repair by the corporations, and had attached to default the penalty of indictment. A mandamus nisi was granted to enforce the duty, under 12 Vict. ch. 81, sec. 37, to plank, gravel, or macadamize a road assumed by the county council. Sir J. B. Robinson delivering the judgment of the court said: "We do not at present see that there is not a duty plainly incumbent upon the United Counties of Leeds and Grenville, under the statute

12 Vict. ch. 81, sec. 37, to make the road which they are desired to make * * If the defendants should appear to be without any legal excuse for not proceeding with the road, then the case would be one of a duty imposed by act of parliament remaining unperformed. And if there should appear to be nothing unreasonable in insisting upon performance, why should it not be enforced? It could only be on account of some difficulty in extending the remedy by mandamus to a municipal body, and in rendering it effectual. At present we do not see that there is such difficulty when there appears to be no other remedy. But we think it clearly proper that we should award only a mandamus nisi at present, in order that any question of law or fact that may be raised upon the return may be disposed of formally and subject to revision."

The learned Chief Justice's allusion to the absence of any remedy except by mandamus may indicate an opinion that the English practice of proceeding by indictment was not, without legislative adoption, applicable to our corporations, or he may have thought that indictment was not a specific or adequate remedy, even if appropriate.

In either case I take the decision to be important authority for the views I have been maintaining. The propriety of interfering by mandamus is considered and affirmed. The grant of a mandamus nisi and not a peremptory writ does not imply any reservation of opinion on that point, as is apparent from what was said as the reason. I do not understand that the question could regularly be raised on the return of the writ. Regina v. Bristol Dock Co., 2 Q.B. 64, is an authority to the contrary, and the rule is distinctly stated by Smith, J., in Re Nathan, 12 Q. B. D. 461, at pp. 465-6; though perhaps Regina v. Haldimand, 20 U. C. R. 574, in which case a mandamus was quashed after return, on the ground that there was a remedy by indictment, may not be quite consistent with those authorities. See also Regina v. Powell, 1 Q. B. 352;. and Regina v. Mayor of Stamford, 6 Q. B. 433.

Nor do I gather from the cases in our own reports that the views I have been putting forward as to the remedies for the statutory duties in discussion are novel.

The mandamus which, in Regina v. Brown, 13 C. P. 356, was refused on the authority of Regina v. The Trustees of the Oxford and Witney Roads, was asked to compel the repair of a road.

So was that which was the subject of Regina v. Haldimand, 20 U. C. R. 574.

In Kinnear v. Haldimand, 30 U. C. R. 398, the rule for a mandamus to erect and maintain a bridge over the Grand River at the village of Indiana, was discharged on the ground that the obligation to build a bridge across the river at that particular place was not made out. Nothing is reported as having been said, either at the bar or from the bench, to suggest a doubt of mandamus being the appropriate remedy.

Jamieson v. Lanark, 38 U. C. R. 647, is open to the same remark as Regina v. Brown; and Brooks v. Haldimand, 41 U. C. R. 381, 3 A. R. 72, presented the same features as Kinnear v. Haldimand. There was no suggestion in that case, either in the Queen's Bench or in this court, that the applicants ought to have sought their remedy by indictment in place of by mandamus. In the Queen's Bench a majority of the court thought that the writ ought to issue. The dissentient judgment, with which in this court we agreed, was that of Chief Justice Harrison, who had refused the writ in Jamieson v. Lanark, but who gave no reason to suppose that he thought the proceedings in Brooks' Case open to the objection on which he acted in Jamieson's.

The result of the best consideration I have been able to give to the matter is that, for the reasons I have attempted to explain, the duties declared by these sections, 534 and 535, may properly be enforced by mandamus, provided the court "be of opinion that the case is a proper one for the issue of the same." (R. S. O. ch. 52 sec. 18.)

Is this a proper case?

The uncontradicted evidence before us is that, pratically, there is no bridge. Although a bridge was erected, it has not been maintained, because it is so far gone as to be impossible to repair; and a new bridge is required.