*296The opinion of the court was delivered by
Lowrie, C. J.We are of opinion that this borough is bound for the duty which the relator complains of as neglected, and that he shows good title to complain. Of common right, the borough is bound to keep its streets in repair. There was, for awhile, a substituted conservator of Main street, because it was part of the National Road. When and in so far as that has failed, the primary and principal duty of the borough is revived. The return does not deny that the repair is needed, and does not aver that there is any other functionary who has funds in his possession or power which he is bound to apply to that purpose. The case of the King v. Oxfordshire, 4 B. & C. 194, 10 Eng. C. L. R. 310, was decided on these principles.
And we think this is a proper form of remedy. Possibly, it would not be allowed, where the necessity of the repair is the matter in dispute; but, where only the liability is in issue, we see no objection to it. Certainly, the courts have power to compel, in some form, the performance of the duty; and we have no form so good as this, and since it can now be administered by the Common Pleas for local cases, we have no good reason for restricting its operation. We must restrict it as an original remedy in this court; else we shall be unable to do our business as a court of error. That the proper remedy has been adopted here, will be seen by Tapping on Mandamus 18, 24, 60, 131, and the cases there cited. We ought to have had the writ on our paper-books, but the parties have raised no question on it.
Judgment affirmed, and record remitted.