
    The Inhabitants of Pembroke versus The Inhabitants of Duxbury.
    in 1682, the towns of S., M. and D. undertook to maintain a bridge Detween S. and D., in consideration of being released by the Plymouth colony government from maintaining other bridges. Afterwards, two new towns were formed out of the old ones, comprising respectively the parts connected by the bridge. No notice was taken of the bridge in the acts of incorporation. Held, that the contract was dissolved by the severance of the towns, and that the bridge must be maintained under the general provisions of St. 1786, c. 81.
    
    This was an action of assumpsit, brought to recover a sum which the plaintiffs claimed as the proportion of expenses due from the defendants on account of repairs made by the plaintiffs, in 1820, on North River Bridge, lying between the towns of Pembroke and Hanover. The defendants pleaded thegeneral issue.
    At the trial, in the Court of Common Pleas, before Williams J.,the plaintiffs introduced evidence tending to prove, that, before the year 1682, the bridge was supported by the government of the Plymouth colony, but that in that year an arrangement was made between that government and the towns of Scituate, Marshfield and Duxbury, by which these towns were to build and maintain a cart bridge over the North River, and were thereupon to be free from being charged for the building or maintaining any other bridge out of their respective townships ; that these towns, and Hanover, which, before 1727, was a part of Scituate, and Pembroke which, before 1711, was a part of Marshfield and Duxbury, had accordingly maintained the bridge at their joint expense from the time when the arrangement was’ made until about ten or twelve years ago ; at which time an agent of Scituate and an agent of Marshfield respectively refused to do any thing further in relation to the repairing of the bridge. In the several acts of incorporation of Hanover, Pembroke, and Hanson, which was recently a part of Pembroke, no provision is made for the maintenance of this bridge. It was also in evidence, that the repairs, for the expense of which this action is brought, were necessary ; that they were made by direction of the agents of Pembroke and Hanover ; and that the agents of Pembroke gave notice to the selectmen of Duxbury of the necessity of making them ; but there was no evidence of assent on the part of the inhabitants of Duxbury.
    Upon this evidence, the judge instructed the jury, that the plaintiffs were not entitled by law to recover in this action, and the jury found a verdict for the defendants. Whereupon the plaintiffs filed exceptions to the instructions of the judge.
    
      IC Whitman and W. Baylies, for the plaintiffs.
    The aríangement with the colony government was a contract made for a valuable consideration between parties who were competent to contract. For upwards of a hundred years, there is no intimation that it had been rescinded. The dissolution of the colony or of the provincial government did not discharge it. The St. 1786, c. 81, however, making general provision for the repair of highways, will be relied on by the other side as having this effect. The first section enacts, that all highways, &c. and bridges, lying within the bounds of any town, shall oe kept in repair at the expense of the inhabitants of such town, ££ where other sufficient provision is not made therefor.” We say that sufficient provision was made for this bridge, and that it is excepted out of the statute by the particular contract. It may be said, that the contract was made originally with only three towns ; but the new towns were created for their benefit, and it does not lie with the defiendan, to make the objection. All the towns except Duxbury nave made a settlement, and a balance being found due to Pembroke, this town had a right to sue alone. It may be said, that Duxbury did not assent to the repairs ; but the work must have been done by somebody, and if the inhabitants of Duxbury, after notice, refused to assist in making the repairs, they are nevertheless liable for their proportion of the expenses incurred by the plaintiffs.
    
      Wood, for the defendants.
   The opinion of the Court was read at' May term 1823, at Plymouth, as prepared by

Parker C. J.

Before the year 1682, it appears that the bridge over North River was a public charge. At that time, by contract with the towns of Scituatex Marshfield and Duxbury, these towns undertook to support the bridge, in consideration of being relieved from contribution to any other bridge within the colony of Plymouth. This was a fair equivalent, as they were obliged to pay into the treasury their proportion of the expense of building and repairing all the bridges in the colony. But upon the union of the colonies of Massachusetts and Plymouth by the charter of William and Mary, a different order of things took place. As early as 1648, in the colony of Massachusetts, the bridges in the highways were -to be erected and repaired under the direction of the Court of Sessions in each county, who were authorized to assess the expense upon the several towns of the county in proportion to their contribution to public taxes. This provision seems to have remained in force under the provincial government, and since the constitution, until the year 1787, when, by a statute of the Commonwealth, bridges and highways were made chargeable to the town within which they lie, where other sufficient provision is not made therefor.

Is there any other sufficient provision made for the maintenance of this bridge over North River, connecting the towns of Hanover and Pembroke ? The old contract was made between the colonial government and the towns of Scituate, Marshfield and Duxbury. These are the only parties, and no others are bound by the contract. Scituate has been since dismembered by the creation of Hanover, and Duxbury and Marshfield by the creation of Pembroke ; and, in the several acts of incorporation of these new towns, no notice is taken of the contract about the bridge. That contract was dissolved ,jy the severance of the towns, and Pembroke and Hanover,' which were newly created, cannot be considered as let into the contract. They are governed by the general statute passed in 1787, there being no other sufficient provision in force by which the bridge could be kept in repair. The claim on the towns of Duxbury and Marshfield ten or twelve years ago, and their yielding to it, cannot estop them from defending their rights now. The judgment of the Court of Common Pleas must therefore be affirmed.  