The parish is, in every case, prim& fiicie liable to the
repair of the highways within it; and though Gates might
have been told that the tenant of Abraham's Farm usually
repaired the highway in question, he would be well war-
ranted in sommoning the persons prima facie liable,
namely, the parish, by means of the surveyor, and leaving
them to diachaige the parish if they could, by shewing a
liabifity in some other penon ; but it was not suggested on
the part of the parish that the tenant of Abraham's Farm,
or any other person than the parish, was liable. It was not
made a question whether the parish or somebody else was
liable, and as the statute is in terms imperative, I do not
see how the justices could do otherwise than make the
order, nor how any interest that Mr. Steere might have
in the question that the» parish ajtertoards raised, could
influence or afiect the making the order. As the case stood
at the time when the order was made, I am at some loss
to discover such an interest in Mr. Steere as would make
the order bad, because be joined in it. If the affidavits
shewed that the summons was taken out and the indictment
preferred at his instigation, and that Gates was not a real
prosecutor, but colluding with Steere, the case would
asBinne a very different character; but Grates appears, as far
as I can judge from the affidavits, to have been a bona 6de
prosecutor, and it would certainly be hard upon him that he
should lose his costs, because the order, — which the magis-
trates could not refuse as the case stood, — was signed by one
who had an interest in the question which was subsequently
raised, but which was not raised when tlie order was made.
