
    Commonwealth versus The Inhabitants of Western.
    Where a county road was discontinued by the Court of Sessions, being superseded by a turnpike road passing over or near it, and the turnpike corporation were afterwards released from their obligation to repair the road, it was held, that the town through which it passed was not bound to keep it in repair.
    The First Massachusetts Turnpike Corporation laid out a turnpike road over or near a part of the county road in the town of Western ; in consequence of which that part of the county road was discontinued by the Court of Sessions. The corporation were afterwards, by St. 1819, c. 34, released from their obligation to repair the turnpike road, where it had superseded the county road, and the Solicitor-General filed an information against the defendants for not keeping it in repair.
    Mansfield, for the defendants.
   The cause was submitted without argument, and, at the April term 1823, it was observed by the Court, that the road, being discontinued, ceased to be chargeable to the town, and that it belonged to the Court of Sessions to lay it out anew, or establish a different road, as they should see fit. 
      
       But where a turnpike corporation have ceased for several years to demand toll, and a town way is laid out over the turnpike road, and accepted by the town, the town is indictable for not keeping the road in repair. Commonwealth v. Petersham, 4 Pick. 119. An action of assumpsit will not lie by a town against a turnpike corporation, to recover expenses incurred in keeping in repair a part of the turnpike road which was laid out over an ancient" county or town road, on the ground of an implied promise. Roxbury v. Worcester Turn. Corp. 2 Pick. 41. If a turnpike road is laid out over an old county or town road, and the turnpike corporation receive toll for the road so laid out, it is conclusive evidence of their being bound to keep it in repair, and they are not released from their obligation, so far as it regards the public, by an agreement of the town, in which the road lies, to keep it in repair. Commonwealth v. Worcester Turn. Corp. 3 Pick. 327; Goshen & Sharon Turn. Co. v. Sears, 7 Conn. R. 93. See also West Boston Bridge v. County Comm. of Middlesex, 10 Pick. 270; State v. Hampton, 2 N. Hamp. R 22; Lyman v. Dorr, 1 Aikens’s R. 224.
     