delivered the opinion of the Court. The first objection is, that part of the road complained of is in fact no part of the turnpike road which is to be kept in repair at the charge of the corporation, because it is an ancient road heretofore laid out, pursuant to law, as a public highway, and a turnpike road cannot by law be laid out over such a way. But there is no prohibition in the statute, and the provision that no gate shall be erected on a part of a turnpike road which is an old road, is grounded upon the supposition that a turnpike road may be so laid out, the object of the legislature being to prevent a tax upon travellers for passing on a road already in existence.
We do not think that the corporation can object that this part of the road has never been so made as to be accepted-They have established their gates and have taken toll for many years, and part of the toll so taken is considered by law as a compensation for making this part of the road. They surely cannot, by neglecting their duty, exempt themselves from the penalty prescribed by law for this very neglect.
Upon the return of the committee appointed by the legislature in the act of incorporation, locating the road pursuant to the act, it becomes a turnpike road, as a county road becomes such by the acceptance of the return of the committee appointed by the court of sessions, and a duty devolved upon the corporation to make the road convenient for passengers
*330Whether indictable or not before they are allowed to receive toll, need not now be determined. But after they have undertaken to erect their gates and to receive toll, they are liable to the charge of keeping the road in repair.
It is not for them to object that the road as made has never been accepted, for that would be to aver their own wrong or negligence in excuse for the omission of a duty. The fact of r iving toll is, as to them, conclusive evidence of their liability for repairs.
We think the evidence which was offered to prove that the town of Roxbury bad agreed that so much of the road as lies in Roxbury should remain at the charge of the town, and that the same was in fact kept in repair by the town from the time when the turnpike road was made until the year 1820, was irrelevant. A bargain between the two corporations could not release either from its obligation to the public. It is an affair to be settled between themselves. It having been heretofore decided that the town of Roxbury was released from the maintenance of this road by the establishment of the turnpike road,1 it follows necessarily that their previous duty was transferred to the turnpike corporation.
That the statute of 1804, c. 125, [See Revised Star. c. 39, § 5,] requires that turnpike roads shall be not less than four rods wide, and that the part of the road complained of is only three rods wide, does not show that the location is void. It shows that the legislative committee reported it to be of the proper width, and their report was accepted. This mistake or deception, whichever it may be, cannot operate to discharge the corporation from the expense of making and maintaining the road. Perhaps, on a quo warranto at the instance of the government, the franchise would be vacated ; but while the road practically remains, having been located and accepted in the manner prescribed, it must be regarded as such by the Court.
Judgment on the verdict.
Roxbury v. Worcester Turn. Corp, 2 Pick. 41; State v. Hampton, 2 N. Hamp. R. 22. See 1 Russell on Crim., 320, 321; Rex v. Nethertong, 2 Barn &, Ald. 179.