
    Richmond.
    Sampson v. Goochland Justices.
    1. A public bridge can be established by a County Court, only in the mode prescribed by the statute, 2 Rev. Code, ch. 236, § 7, p. 236.
    2. A bridge, erected by an individual for the public benefit, or for his own purposes, and dedicated by him to the public, may be established by the County Court as a public bridge; but only in the mode prescribed by the statute.
    3. The record of the Court must shew, that the order establishing a bridge, was made by a County Court, constituted according to ' the directions of the statute, or the order will be invalid.
    4. The County Court is not bound to repair or maintain a bridge, erected by an individual, with whatever view to the public advantage, and though dedicated by him to the public use, and actually used by the public, and although on a public road, unless it has been adopted by the County Court in the mode prescribed by the statute.
    5. If an individual, without authority, for his own purposes, or even for the public advantage, constructs a bridge in a public road, it is incumbent on him to keep it in such a condition as not to impede the free and convenient use of the highway; and if he suffers it to become ruinous, so as to operate as an obstruction, he becomes guilty of a nuisance, for which he is liable: but the County Court cannot be compelled to repair or maintain the bridge.
    6. An order of the County Court directing a bridge to be repaired or rebuilt, is not evidence that the bridge had been previously established ; nor is it sufficient to establish the bridge as a public bridge, unless the record shews that the Court was properly organized for that purpose.
    In September 1843, Richard Sampson applied to the Circuit Court of Goochland for a rule upon the justices of Goochland county, to shew cause why a mandamus should not be awarded against them, commanding them to repair, and keep in repair, the bridge across Stony creek, in the said county, on the main stage road leading from Richmond to Goochland courthouse.
    
      The rule was made, and the justices made return , thereto:
    1st. That the canal across the public road over which bridge ;las |jeen erected, was cut by said Richard Sampson, for his own accommodation and convenience, solely; and the said bridge, placed across the said canal, entirely for his convenience, and not that of the public. And that said bridge had been of no utility or convenience to the public, in passing the road on which it is located, beyond what they enjoyed prior to the cutting of said canal, and the erection of said bridge.
    2d. That the said Richard Sampson, without any lawful authority or right, cut the said canal or ditch across said road, and caused and procured the said bridge to be erected thereon, to the detriment and inconvenience of the public, and to the great nuisance and annoyance of the citizens of this Commonwealth. Or, if he had lawful authority for cutting said canal or ditch, and erecting said bridge, it being for his sole benefit and convenience, he is bound to keep the same in repair, at his own costs.
    On the hearing of the motion, the rule was discharged, and Sampson having taken an exception to the opinion of the Court, discharging the rule, applied to this Court for a supersedeas, which was awarded.
    On the hearing of the case, the plaintiff, to sustain the rule, introduced the following order of the County Court of Goochland: “In Goochland County Court, 21st November 1836 : Ordered that Richard Sampson, John M. Trevilian and Matthew W. Webber, or any two of them, do let and receive the necessary repairs, or rebuilding the bridge across Stony creek, and make report thereof to the Court.” He also introduced the report of Sampson and Trevilian, two of the said commissioners, in which they say, that upon an examination of the old bridge, it was found so much decayed as to render it necessary to build a new one ; that the work had been done by the contractor at the price of 100 dollars, and that they had received-the bridge. This report was returned to the County Court at the June term 1837; and on the 19th of June there was an entry of record, that the report was presented in Court, received and ordered to be entered of record,. And on the same day the Court laid a levy on the county, for raising the sum of 100 dollars for building Stony creek bridge. The bridge, mentioned in the rule, is the same-which is mentioned in these orders and entries. And the record states that these, and some subsequent orders which are given in the record, but which are not necessary to be stated, are all the orders that appear to have been made at any time in reference to this bridge.
    The defendants, in support of their return to the rule, proved, by the testimony of witnesses who were citizens, and tithe-payers of the county of Goochland, and who were objected to on that ground by the plaintiff, that the said bridge was erected some twenty or twenty-five years before the trial. That before, its erection, the waters of Stony creek flowed in one channel; and though the said creek sometimes rose in high freshets, so as not to be fordable, yet that such freshets were of rare occurrence, and not such as to render it necessary for the public convenience to erect a bridge across said creek, which, from the nature of the stream and the position of the adjacent lands, must have been a long and expensive one. That the waters of said creek were divided by a trench, which had been cut by Sampson across the public road, without any order appearing to have been made upon the subject, but without objection on the part of the County Court or otherwise, and into which rather more than half of the waters of said creek,, in ordinary seasons, flowed j and that the bridge mentioned, which was a short one, was across this trench. That when the bridge was first constructed, it was put up by Sampson, who owned the land on both sides; and it was kept up by him until 1836, at which time it was rebuilt by the county; and since that time it had not required repair until the rule in this case was issued, at which time it was out of repair, and still continues so.
    It was also proved by the plaintiff, that before the waters of said creek were divided as aforesaid, persons were detained sometimes for a whole night by rises of water in the creek ,• and that since that time, no such detention had occurred; and that freshets in the creek were less frequent, and of shorter duration than before; and by reason of the draining and clearing of the land, effected by digging the trench aforesaid, the water had been kept off the public road, and the same had been rendered firmer and better.
    
      Stanard, for the appellant.
    I. The bridge in question here is upon, and in effect forms part of, the main stage road from the City of Richmond to the courthouse of Goochland county. That this is a public road will not be denied. Upon the face of the record, it is so described, and, moreover, it is a road leading to the courthouse of the county, which, in the language of Judge Tucker, in Brander v. Chesterfield Justices, 5 Call 548, “ must be a public road which the justices of the county are bound to open and keep open and in repair.” And the same case shews, that £t a mandamus is the proper remedy to compel a County Court to erect a bridge across a public road.” It is true that in that case, while the jurisdiction was sustained, the writ was denied; but it was denied expressly upon the ground that it appeared in that case, that the road had been established as a public road “ only to and from the margin of the creek, and not across it,” and that there was !< no record to shew that there was ever a bridge built at the expense of the county, or afterwards accepted by the Court as a public bridge.” Had the same facts appeared in that case which are established in this, viz., that the road was a public road, and the bridge in question had been built at the expense of the county, it is apparent, upon the principles sanctioned by the whole Court, that the mandamus must have been awarded. And it is submitted, therefore, that Brandar v. Chesterfield Justices, in principle, rules this case. It would indeed be strange if a County Court could refuse to repair a bridge across a public road leading from the seat of government to the county courthouse, built and paid for by the county itself, upon the ground that somebody else ought to have built it, or was bound to keep it in repair; and in the meantime, and until this controversy shall be decided, to expose the public to all the inconvenience and hazard of using an unsafe bridge. If Mr. Sampson is under any legal obligation arising from any contract on his part, express or implied, to repair or keep in repair this bridge, let that obligation be enforced in the proper form by action against him for the costs to which the county may be subjected in making such repairs, or otherwise ; but it is submitted that such liability, supposing it to exist, furnishes no ground on which to relieve the County Court from their obligation to the public to repair and keep in repair for the public use a bridge across a public road, built by order of the County Court, and paid for out of the county levy. Suppose that some man, driving a heavily loaded wagon across this infirm bridge, should break through, killing his horses, or maiming himself, would it be any answer to him, on the part of those who, in the language of the Judge already cited, “are bound to open and keep open and in repair,” the road of which this bridge formed a part, that they had a controversy on this subject with a citizen of the county, and in the meantime the public at large had been left to shift for themselves ? It is submitted, therefore, even if it were shewn ever so clearly that Mr. Sampson was liable for the repairs of this bridge, that would, furnish no justification to the County Court for permitting it to remain in an unsound or unsafe condition, and would constitute, therefore, no an- , ... , swer to this rule.
    II. But does the record here contain the slightest evidence of any such liability on the part of Mr. Sampson ? It is proved by the record, that this identical bridge was built and paid for by the county, and that it is a bridge across, or rather forming part of, a public road. Prima facie, therefore, beyond question, the county is bound to keep it in repair. And how do they seek to avoid this prima facie responsibility, and shift off the onus from themselves on another? By proving that Mr. Sampson, some 20 or 25 years ago, cut the trench, across which the bridge is thrown, erected the first bridge, and kept it for a certain length of time in repair, at his own costs, and until it required rebuilding, when it was rebuilt at the expense of the county. And is it a fair inference from these facts, that Mr. Sampson was bound, not only to erect, but for all time to come, to keep up the bridge ; or, is not the inference directly the other way, viz., that he was only bound to erect it in the first instance, and keep it up for a certain time, after which it was to be kept up by the county? Upon what other supposition can the action of the County Court in 1836, be explained ? And yet the Court (it is submitted) must be presumed to have understood their own rights, and those of Mr. Sampson, touching this matter, at least as well as their successors did ten years afterwards. It is in proof, 'too, that the benefit arising from what was done by Mr. Sampson at his own expense, did not accrue to himself alone. The public, at least, was so far benefitted, that no such detentions, occasioned by rises of water in the creek, as are proved to have occurred before, have occurred since; that freshets have been less frequent, and of shorter duration, and the road has been made firmer and better. It was but reasonable, therefore, that the county should contribute to the work. In what form that should be done, it was for the County Court to decide, and having decided by its orders of 1836 and 1837, such decision, it is submitted, is binding on its successors and the county.
    III. It is submitted, further, that all the evidence offered by the justices in support of their return to the rule was incompetent, and should have been rejected by the Court. Apart from the objections to parol evidence of any kind in such cases, (Brander v. Chesterfield Justices, 5 Call 548,) the evidence of citizens and tithe-payers of the county was clearly inadmissible. The inhabitants of a parish are incompetent witnesses to discharge the parish from the burthen of repairing the highway. Rex v. Brickbridge, 4 Mod. 48, 49; Same v. Inhabitants of Aston, Burns’ Justice, Evid., 792; Rhodes v. Ainsworth, 1 Barn. & Ald. 87. And the tithe-payers of the county are directly interested in the question, whether or not the county shall repair this bridge, as such repairs, if made, must come out of the county levy, to which they must contribute. Supposing this evidence rejected, the case would stand upon the record alone, shewing that the road was a public road, and the bridge had been built and paid for by the county.
    
      Grattan, for the appellees.
    I shall consider the last proposition of the appellant’s counsel, first. Were the witnesses competent? Bridges are to be built or repaired by assessments on the tithable inhabitants of the county. 2 Rev. Code, p. 236, <§> 7, 9. But at the time that these witnesses gave their testimony, no levy for the repair of this bridge had been laid by the County Court. Their liability to contribute to this object was contingent. They might remove from the county or die before the levy was laid; and would thus not be subject to pay it. And on this ground it has been held, that such persons are competent witnesses. The King v. Prosser, 4 T. R. 17; The King v. Kirkford, 2 East 559 ; Falls v. Belknap, 1 John. R. 486; Bloodgood v. Jamaica, 12 Id. 285; 2 Starkie Evi. 776, 781, note 1. The cases cited on the other s’^e are cases in which the persons offered as witnesses had a subsisting interest at the time.
    But if the witnesses are not competent, and this case is to be decided upon the record evidence, the county is not bound to keep this bridge in repair. A bridge which the county is to keep up, can only be built by the order of the County Court. 2 Rev. Code, p. 235, § 7; Brander v. Chesterfield Justices, 5 Call 548, 554. And to authorize the original building of a bridge, a majority of the justices of the county must be present when the order is made, or the Court must have signified their intention to make such order at least one month previous to making the same, and have had such their intention entered of record, with directions to the sheriff to summon the justices of the county to attend at the next term for the purpose of determining whether the bridge shall be built. The power to build a bridge does not, therefore, belong to a County Court organized in its ordinary mode for the administration of justice; but is a power pertaining to its police jurisdiction, and to be exercised only in the mode prescribed by the statute. And these provisions of the statute are obviously intended, and are necessary to protect the county from unnecessary and improper burdens. The power to establish a bridge as a public bridge, is a power only to be exercised in a specified mode, and comes within the principle that a specific and limited power, must not only be exercised in the mode prescribed, but that this has been done must appear upon the record. Hamlett v. The Commonwealth, 3 Gratt. 82; Saunders v. The Commonwealth, Id. 214; Grignon’s lessee v. Astor, 2 How. R. 319; Thatcher v. Powell, 6 Wheat. R. 119.
    
      In this case the appellant relies on the order of November 1836, and the subsequent levy for the payment of the contractor in June 1837, as proof that this bridge was adopted by the County Court. I am not disposed to deny that the County Court may adopt a bridge already built, as a public bridge. But then it must be done by a Court constituted in the mode prescribed by the statute, to authorize the building of a bridge. And here it does not appear that this was done. The order of the Court found in the record does not shew that there were a majority of the justices present, or that the previous steps had been taken which would authorize less than a majority to act. This order, upon the authorities above referred to, would seem clearly insufficient of itself to establish the bridge as a public bridge; and the record shews that no previous order in relation to this bridge had ever been made.
    Numerous authorities will be cited from the English Courts to prove that a bridge, though built by an individual for his own benefit, may be adopted by usage; and that the county is bound to keep it in repair. In these cases it will be found that the bridge built did not obstruct the public road, but crossed the stream near to the road; and the benefit to the public was manifest from the fact, that both modes of crossing the stream being open to the public, the bridge was preferred and used. The bridge could not have obstructed the public way, because no private person would have been permitted to do so; and if we are to form an inference from the cases, no private person ever attempted it. But in cases where public companies were authorized by their charter to cut their canals and make their improvements through or across a public road, so that it was obstructed, and a bridge became necessary, in such cases the companies were held bound to keep up the bridge. Rex v. Inhab. Kent, 13 East 220; Rex v. Lindsey, 14 Id. 318; The King v. Kerrison, 3 Maule & Sel. 526.
    
      But I submit that the common law does not apply to the subject of building or repairing public bridges in Virginia. In England, the county is indictable for not repairing a bridge. Not so here. Here, too, the whole subject of bridges and roads is referred to the County Courts. Bridges are only to be built in the mode prescribed by the statute; and the evidence that they are public bridges must be furnished by the record. Branden v. Chesterfield Justices, 5 Call 548.
    As to the proposition that the county is bound to repair this bridge, though Sampson may be indicted or sued for not doing it, it comes with a bad grace from Mr. Sampson himself. If this is not a public bridge, it is obvious that the convenience of the travelling public will be best promoted by filling up the canal, and this the overseer of the road can do. But the proposition is answered by the cases before cited from East and Maulé Sp Selwin, where it was held that the public companies being bound to keep the bridges in repair, the county could not be held responsible, though they were out of repair.
    
      Bouldin, for the appellant.
    There is no doubt that it is the duty of the County Courts to build and keep in repair the necessary bridges on the public roads. 2 Rev. Code, ch. 236, <§> 9, 10, p. 236, 7. This is clearly the duty of the Courts; and it is as clearly the right of the citizen to demand that this duty shall be faithfully discharged. But it is objected by the counsel for the appellees, that the principles of the common law do not apply to this subject in Virginia. Now, it will be found on examination, that the obligations of the counties in England and in Virginia, in relation to bridges, are in substance, if not identically, the same. The difference is in the remedy. In England, the remedy is by indictment and fine; with us, by mandamus from a Superior Court. There is certainly no reason for any difference in the principles of law which should regulate these obligations, unless, indeed, the County Courts have (as has been claimed for them in argument) uncontrolled discretion over the subject. This cannot be successfully maintained, whilst there may be a mandamus to the justices to compel them to act; and that a mandamus does lie in such a case, has been repeatedly decided. Brander v. Chesterfield Justices, 5 Call 548; Commonwealth v. Fairfax Justices, 2 Va. Cases 9; Same v. Kanawha Justices, Id. 499. Whether the proceeding against the county be by indictment or mandamus, the question whether the bridge is a public bridge, is the question which must arise, and must be decided.
    In this case it is admitted that the road over this bridge is a public road ; and that a bridge is, and will be indispensable, so long as the canal across the road shall continue. It follows, therefore, we insist, of necessity, that this is a public bridge, which the county is bound to keep in repair, unless some other body or person is bound, either by tenure or contract, to perform that duty.
    Is this so ? Is it a public bridge, which the county is bound to keep in repair? This question, we contend, must be determined on the record evidence alone, and that parol testimony is wholly inadmissible. Brander v. Chesterfield Justices, 5 Call 548. Looking to that evidence, we see that in November 1836, the County Court ordered the rebuilding or repairing of the bridge ; and that in June 1837, the same Court made a levy on the county to pay for the rebuilding; (which was collected, we presume, and paid.) These orders, we submit, are conclusive of the question, and there is neither a necessity nor any legal propriety in looking back further than the first of them. If it was not a public bridge, the County Court had no authority to order it to be rebuilt, or to pay for it out of the county levy. But we see that it was rebuilt as a public bridge, by an order of that Court, and paid for as such ; and it must be presumed, in the absence of all record proof to the contrary, that the County Court having general jurisdiction over the subject, did not transcend its legitimate powers, and therefore that the bridge, prior to the orders referred to, had been properly and legally established as a public bridge.
    It is said, however, that it does not appear that the County Court was properly constituted, when the order of November 1836 was made, and that the order is therefore a nullity. This objection to the organization of the Court is taken here, for the first time; and no opportunity has therefore been afforded, or now exists, to shew how the fact really was. It is certainly true that the justices of the county must be summoned, or a majority actually present, to authorize the erection of a bridge, where there is, or has been, no public bridge in existence. It is also true, that it does not appear in the order referred to, how the Court, which made it, was constituted. But this, 1 apprehend, is very rarely, if ever the case. Practically, nearly all the orders in relation to bridges, are made in the several counties at one Court, and generally on the same day. These orders are separately made, and none of them shew how, or by whom, the Court was constituted. In this case a copy of the order.alone was relied on; and no objection of this sort being raised below, we are bound to presume that the Court which made it, was properly organized, and that a full record of the proceedings would have shewn the fact, had such record been demanded.
    But there is a wide distinction between the original erection and the rebuilding or repairing of a bridge. In the former case the Court must be constituted as above mentioned; in the latter, an ordinary Court may act.
    Now, the order of November 1836, is for the repairing of the bridge as a then existing public bridge. That order could be made at any County Court, and therefore is not reached by the objection; but it could only be legally made on the concessum that the bridge was already a public bridge ; and I refer to the order in this point of view, not as establishing or adopting the bridge as a public bridge, but as record evidence, and therefore conclusive evidence, (Brander v. Chesterfield Justices,) that prior to, and at the date of that order, it was a public bridge, which the county was bound to keep in repair. I submit that this record evidence is, in either view, conclusive of the question, and that no parol testimony should have been received to weaken its force.
    But, concede that the parol testimony was admissible, and that the bridge was placed originally in the public road in the year 1824, by Sampson himself, without legal authority, and for his own benefit. We insist that a private bridge, if useful to the public, may, in a legal mode, be adopted by the County Court as a public bridge; that for the reasons already urged, we must regard the order of November 1836, as duly and legally made ; and being so made, we can only construe it as intended to adopt and adopting this bridge. If so, it became thenceforth a public bridge, and its repairs necessarily became a charge on the county.
    But again : a bridge, though built by an individual for his own use and benefit, if it be also useful to, and actually used by the public, may, by this user and convenience, become a public bridge, which the county is bound to keep in repair. If the county is bound by law to erect bridges when needful for public convenience, where none exist, surely it is not the less bound to keep in repair a necessary and convenient bridge already built; because forsooth, some private person may have taken on himself the expense of its original erection. It is public convenience that must be consulted; and as that may demand the erection in the one case, so it may demand the rebuilding in the other. To shew that public user may convert a private bridge into a pub-one, and that the county is bound, to repair such a bridge, I refer to Woolwych on Ways 195; The Queen v. Inhab. Wiltshire, 1 Salk. R. 359; The King v. Inhab. West Riding of Yorkshire, 5 Burr. R. 2594; Same v. Same, 2 East R. 342; Same v. Inhab. Glamorgan, Id. note; Same v. Inhab. St. Benedict, 6 Eng. C. L. R. 483. In all these cases the bridges were built by individuals or companies, not only without right, but against right, and were of course liable to be abated; but being useful to and actually used and accepted by the public, they were held to be public bridges, and the counties were compelled to keep them in repair as such. They differ from the cases relied on by the appellees’ counsel, in this, that in the latter the bridges were erected under statutory contracts, authorizing their erection, and imposing on the party the duty of keeping up the bridge. Indeed, in one ease the right to discontinue the bridge at the pleasure of the party was expressly reserved ; and such ,a bridge could hardly, I think, be regarded as a public bridge. Sampson certainly had no right or authority to discontinue this bridge after it had been used by the public from 1824 to 1836, rebuilt by the County Court for the public convenience in 1836, and used by the public ever since. The right to the materiel of the bridge was in the county, and the right to its use in the public; and Sampson could not discontinue it without being liable to a presentment. The King v. Inhab. Surry, 2 Camp. R. 455; Same v. Inhab. Kent, 2 Maule & Sel. 513.
    The enquiry has been made from the bench, whether Sampson could not fill up the canal and divert the water to its original channel, and thereby render the bridge unnecessary and useless. I answer, no. This canal was cut in 1824, and a portion of the waters of the creek was then turned into it, and has flowed along it ever since. It is in proof that this division of the water has rendered the stream less liable to overflow, and has greatly improved the road. The county and the public have enjoyed these benefits in the use of the canal as it now is for more than twenty years, and they are now entitled to it as an easement for the benefit of the road, Yard v. Ford, 2 Saund. R. 175, note 2.
    But further; a person may, without deed, so dedicate property or an easement to the public, as to deprive himself of the power to retake it. City of Cincinnati v. White’s lessee, 6 Peters’ R. 431; Barclay v. Howell’s lessee, Id. 498; New Orleans v. The United States, 10 Id. 662; Denning v. Roome, 6 Wend. R. 651; Livingston v. Mayor of New York, 8 Id. 85; Woolwych on Ways 85, 4 Law Lib.; Trueheart v. Price, 2 Munf. 468. These cases establish the principle stated; and I submit that Sampson has by his actions, without a deed, dedicated this canal to the public; the dedication has been accepted, the canal used as it is for twenty years, and the bridge over it rebuilt by the County Court; and under such circumstances we say that Sampson cannot now fill up the canal.
    A bridge built by the public, in the public road, and over a canal belonging to the public, which nobody can fill up, must needs be a public bridge, and should be repaired by the county.
   Baldwin, J.

delivered the opinion of the Court.

Our road law provides, “ that when a bridge or causeway shall be necessary, and the surveyor with his assistants cannot make or maintain the same, the Court of the county are empowered and required to contract for the building and repairing such bridge or causeway, and to levy the charge thereof in their county or road levy. But no order for the erection of any bridge or bridges shall be made by the Court of any county, unless a majority of the acting justices of such county shall be present at the making of such order, or unless the Court of such county shall have signified their intention of ma-such order, at least one month previous to making the same, and shall have caused a statement thereof to entere(j 0f recor¿; with directions to the sheriff of county t0 summon the justices of said county to attend at the next term for the purpose aforesaid.”

The effect of this enactment is to prevent a county from being chargeable with the maintenance of such a bridge as it contemplates, without a previous order for its establishment, made in the mode therein prescribed. If the conditions required be observed, then the bridge will be established by the order for its erection: and so if it has been previously erected by an individual for the public benefit, or for his own purposes, and then dedicated by him to the public use, an order for its adoption, the above mentioned prerequisites being observed, will establish it as a public bridge ; and thenceforth it will fall within the authority and duty of the Court to provide for its reparation and maintenance, at any terms held under the general law, without the necessity of following these special provisions. But there is no obligation upon the Court to repair and maintain a bridge erected by individual enterprise, with whatever view to public advantage, or though dedicated by him to the public use, and actually used by the public, unless it has been adopted by the Court in the mode above specified. There can be no such permanent burthen thrown upon the county, by any supposed agreement or understanding between the individual and the public, unless through the agency of the Court; and that can only be exercised in the mode specially prescribed by the statute.

If an individual without authority, for his own purposes, or even for the public advantage, constructs a bridge in a public road, it is incumbent on him to keep it in such a condition as not to impede the free and convenient use of the highway; and if he suffers it to become ruinous, so as to operate as an obstruction, he becomes guilty of a nuisance, for which the law gives the proper remedies: but neither he nor any one else can compel the county to incur the charge of repairing and maintaining the bridge.

In the present case, a rule was obtained in the Circuit Court, in September 1843, on the appellant’s motion, against the justices of the County Court of Goochland, to shew cause why a mandamus should not be awarded, commanding them to repair and keep in repair the bridge across Stony creek in said county, on the main stage road leading from Richmond to Goochland courthouse.

The object of the proceeding, it will be seen, was not to compel the justices, in the exercise of a just police, to erect a new bridge ; but to repair and maintain one already in existence. It was, therefore, incumbent on the appellant to shew, that the bridge had theretofore been erected or established by lawful authority. This he has attempted, but wholly failed to do.

The order of the County Court of November 1836, by which it was directed that the appellant and others, or any two of them, “ do let and receive the necessary repairs or rebuilding the bridge across Stony creek,” was not an order for the erection of a new bridge, or the permanent establishment of an old one, but for the thorough repair, by rebuilding, if requisite, of a bridge then existing, but in a dilapidated or ruinous condition. It is unnecessary to enquire what would have been the effect of this order, if the justices of the county had been summoned to take the subject into consideration ; or if, when acted upon, a majority of the justices had been present. If either of these conditions had occurred, it could be shewn by record evidence, and none has been produced. The order, therefore, must be taken to have been made at a term of the Court organized merely for the transaction of ordinary business, aud with a sufficient number of justices for that purpose only. The effect of such an order could not be, eveQ g0 (qesigae(3j t0 establish a permanent charge upon the county for the perpetual maintenance of the bridge. It could authorize, at most, only the expenditure of money out of the county levy for the then occasion of a partial repair, or a thorough repair by rebuilding, of an existing bridge, (unestablished by lawful authority,) and in temporary aid or relief of the individual enterprise by which it had been constructed. Nor could a greater effect be given to the order by the return and admission to record, at a subsequent term, of the commissioners’ report of their proceedings under the order; nor by the allowance at such term to the undertaker, out of the county levy, of the compensation for his work; especially in the absence of record evidence, that the subject of establishing the bridge was then taken up and considered^ by a majority of the justices of the county.

It was indispensable, therefore, to make out the appellant’s case, that he should go behind the order of 1836, and shew by record evidence that the bridge in question had been previously established, in the mode prescribed by law; or prove such lapse of time and other circumstances, since its original erection, as to warrant the presumption of the loss or destruction of such record evidence. No effort of the kind has been made; and the appellant’s case rests mainly upon the order of 1836, and the subsequent proceedings above noticed.

The appellees on their part examined witnesses, who were citizens and tithe-payers” of the county, and proved by them, amongst other facts, that the bridge was originally erected by the appellant, a number of years prior to the order of 1S36, and kept up by him until that period.

We need not consider whether the parol evidence in the case was admissible, or the witnesses for the appellees competent; inasmuch as that evidence was unnecessary for the appellees, and can avail the appellant nothing.

It seems to the Court, that there is no error in the order of the Circuit Court, discharging the rule which had been granted to the appellant: It is therefore considered that the same be affirmed, with costs.  