said in substance, that the Court were of opinion that the action could not be sustained ; and upon the grounds taken in the objections, that the turnpike company were bound to keep in repair the road designated in their act of incorporation, and if any part of it was out of repair, they were liable to an indictment, but that they having neglected to make repairs, the inhabitants of Roxbury voluntarily continued to do what they had been in the habit of doing, without giving any notice to the turnpike corporation. It is said that the arch was erected for the purpose of deception. We can hardly imagine, that where so many persons were interested, they should be deceived by that circumstance. We should rather think it was a notice to the town, that the corporation did not intend to repair this part of the road. It is hardly possible to raise an implied promise in the case. The repairing of the road seems to have .been a voluntary courtesy done with a full knowledge of the facts.1
Motion to take off the nonsuit overruled.