Shaw C. J.
afterward drew up the opinion of the Court. On the trial of this action against the town of Northfield, for injury sustained by the plaintiff, by the insufficiency of a highway, several objections were taken by the defendants to the directions of the judge in matters of law, which have now been considered.
It was among other things objected, that the locus in quo was not sufficiently proved to be a highway, by the facts shown. These facts were, that it had been known and used as a public highway for fifty years and during that time had been repaired by the town. It is analogous to a right of way or other easement; which, it has been recently decided, may be held by prescription, by proving a use for forty years. Kent v. Waite, 10 Pick. 133; Melvin v. Whiting, ibid. 295. Whether a public right of way can be established by dedication and tacit adoption, by a presumed grant, or by any other mode, in a period short of forty years, we do not now give any opinion.
But if an uninterrupted use of a highway and the support of it by the town for forty years, which is now the longest term of prescription known to the law, would not establish it, it would be equivalent to declaring that there can be no highway proved in any mode but by the record of its being '.aid out; which, in regard to many, and those the most important and ancient highways of the commonwealth, would [98]*98be utterly impossible. But without dwelling upon the supP°sed inconvenience of a different rule, we think it clear upon principle, that public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment, that they were, at some anterior period, laid out and established by competent authority.
We are also of opinion, that the evidence of notice to the town, of the dilapidation of the highway and bridge complained of, was rightly left to the jury. It has often been held, in giving a construction to this act, that notice to the town, of the defect of a highway, may be inferred from its notoriety, and from its continuance for such a length of time, as to lead to the presumption, that the proper officers of the town did in fact know, or, with proper vigilance and care, might have known the fact. This latter is sufficient, because this degree of care and vigilance they are bound to exercise, and therefore, if in point of fact they do not know of such defect, when by ordinary and due vigilance and care they would have known it, they must be responsible, as if they had actual notice.
The fact, that the plaintiff was an inhabitant of -the town and knew of the defect, was material only to the point, whether he had used due diligence in avoiding the danger, or whether the accident was the result of his own negligence ; and in this respect it was properly left to the jury. If the defect was so recent, that the town could not be deemed to have constructive notice, they would not be liable, whether the plaintiff knew it or not; if they had such notice, then it is immaterial whether he gave them notice or not. It was a fact for the jury; the only point ruled was, that his knowledge of the defect was not conclusive evidence of negligence ; which we think was correct.
But the point which has been most elaborately argued, ana upon which many authorities have been cited, arises on a motion in arrest of judgment, because the declaration in this case does not aver, that the negligence of the town complained of, and on the ground of which the plaintiff claims damages, was against the form of the statute relied on-
[99]*99The precise point is, whether in an action on the case (n which a party claims damages merely, and sets out fully the facts upon which that claim rests, bringing it within the provisions of the statute, this averment in precise terms, or in some expression equivalent, must be ihade. We think h is not necessary. We think the authorities leading to a contrary conclusion, will be found to apply either to indictments or informations, or to actions, of debt or on the case, for penalties, where the same strictness is required. And where the statute gives a penalty, and the thing sued for is pursued as a penalty, although the right to sue is given only to the party grieved, and even though the whole penalty when recovered shall go to the party grieved, still the same rule may apply, because the form of proceeding is still for a penal sum, and the ostensible and real object of the suit, in form at least, is punishment. Some of the elementary works and books of practice lay down the rule, in general terms, without the qualification limiting it in terms to penal actions, but it is believed, that when the cases are examined which are relied on to support the rule, they will be found to be cases of penal actions. 1 Dunlap’s Pract. 283, refers to several cases in 1 Gallison, which are actions of debt by the United States, for penalties. Cross v. United States, 1 Gallis. 26 ; Sears v. United States, ibid. 257; Smith v. United States, ibid. 261; Kenrick v. United States, ibid. 268.
In the first plac.e, it is not necessary to recite a public statute or to refer to it, for the information of the court, and thence it is a rule of pleading, that the court will judicially take notice of the existence and provisions of a public statute, without any reference to it.
Further, the reason upon which the rule is founded is, that all indictments, informations and penal actions will be presumed to be founded on the common law, unless they expressly refer to the statute, and the averment that the act was done against the statute, is a substantive allegation, making it an offence, and, therefore, if this averment is not made, the statement in the close, “ whereby an action hath accrued &c.,” is a conclusion which does not follow from the prem[100]*100ises, because it is the breach of the statute and the averment of it, which alone constitutes the averment of an offence. Wells v. Iggulden, 5 Dowl. & Ryl. 13, and S. C. reported less fully in 3 Barn, and Cressw. 186. The whole reasoning goes upon the ground, that it is a penal action and charges an offence. The case of Lee v. Clarke, 2 East, 333, which was also debt for a penalty, was cited and principally relied on. Bayley J., in concluding the opinion of the court, says, “ inasmuch as this is a penal action, brought, not by a party grieved, but by a stranger, and founded wholly upon the statute, it appears to us, upon the authorities, that the statement of the offence charged is insufficient, unless the facts constituting the offence are set out, and it is stated as a substantive allegátion, that the offence was committed against the form of the statute.”
The cases in this commonwealth, where the point has been discussed, seem to recognise this distinction.
Peabody v. Hayt, 10 Mass. R. 36, was for a penalty. And it was held, that when a penalty is given by statute, and a civil action is provided for its recovery, there must be a direct allegation that thé offence was committed against the form of the statute.
In Nichols v. Squire, 5 Pick. 168, which was a qui tam action on the lottery act, the Court say, if the question were r.
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Shaw C. J.
afterward drew up the opinion of the Court. On the trial of this action against the town of Northfield, for injury sustained by the plaintiff, by the insufficiency of a highway, several objections were taken by the defendants to the directions of the judge in matters of law, which have now been considered.
It was among other things objected, that the locus in quo was not sufficiently proved to be a highway, by the facts shown. These facts were, that it had been known and used as a public highway for fifty years and during that time had been repaired by the town. It is analogous to a right of way or other easement; which, it has been recently decided, may be held by prescription, by proving a use for forty years. Kent v. Waite, 10 Pick. 133; Melvin v. Whiting, ibid. 295. Whether a public right of way can be established by dedication and tacit adoption, by a presumed grant, or by any other mode, in a period short of forty years, we do not now give any opinion.
But if an uninterrupted use of a highway and the support of it by the town for forty years, which is now the longest term of prescription known to the law, would not establish it, it would be equivalent to declaring that there can be no highway proved in any mode but by the record of its being '.aid out; which, in regard to many, and those the most important and ancient highways of the commonwealth, would [98]*98be utterly impossible. But without dwelling upon the supP°sed inconvenience of a different rule, we think it clear upon principle, that public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment, that they were, at some anterior period, laid out and established by competent authority.
We are also of opinion, that the evidence of notice to the town, of the dilapidation of the highway and bridge complained of, was rightly left to the jury. It has often been held, in giving a construction to this act, that notice to the town, of the defect of a highway, may be inferred from its notoriety, and from its continuance for such a length of time, as to lead to the presumption, that the proper officers of the town did in fact know, or, with proper vigilance and care, might have known the fact. This latter is sufficient, because this degree of care and vigilance they are bound to exercise, and therefore, if in point of fact they do not know of such defect, when by ordinary and due vigilance and care they would have known it, they must be responsible, as if they had actual notice.
The fact, that the plaintiff was an inhabitant of -the town and knew of the defect, was material only to the point, whether he had used due diligence in avoiding the danger, or whether the accident was the result of his own negligence ; and in this respect it was properly left to the jury. If the defect was so recent, that the town could not be deemed to have constructive notice, they would not be liable, whether the plaintiff knew it or not; if they had such notice, then it is immaterial whether he gave them notice or not. It was a fact for the jury; the only point ruled was, that his knowledge of the defect was not conclusive evidence of negligence ; which we think was correct.
But the point which has been most elaborately argued, ana upon which many authorities have been cited, arises on a motion in arrest of judgment, because the declaration in this case does not aver, that the negligence of the town complained of, and on the ground of which the plaintiff claims damages, was against the form of the statute relied on-
[99]*99The precise point is, whether in an action on the case (n which a party claims damages merely, and sets out fully the facts upon which that claim rests, bringing it within the provisions of the statute, this averment in precise terms, or in some expression equivalent, must be ihade. We think h is not necessary. We think the authorities leading to a contrary conclusion, will be found to apply either to indictments or informations, or to actions, of debt or on the case, for penalties, where the same strictness is required. And where the statute gives a penalty, and the thing sued for is pursued as a penalty, although the right to sue is given only to the party grieved, and even though the whole penalty when recovered shall go to the party grieved, still the same rule may apply, because the form of proceeding is still for a penal sum, and the ostensible and real object of the suit, in form at least, is punishment. Some of the elementary works and books of practice lay down the rule, in general terms, without the qualification limiting it in terms to penal actions, but it is believed, that when the cases are examined which are relied on to support the rule, they will be found to be cases of penal actions. 1 Dunlap’s Pract. 283, refers to several cases in 1 Gallison, which are actions of debt by the United States, for penalties. Cross v. United States, 1 Gallis. 26 ; Sears v. United States, ibid. 257; Smith v. United States, ibid. 261; Kenrick v. United States, ibid. 268.
In the first plac.e, it is not necessary to recite a public statute or to refer to it, for the information of the court, and thence it is a rule of pleading, that the court will judicially take notice of the existence and provisions of a public statute, without any reference to it.
Further, the reason upon which the rule is founded is, that all indictments, informations and penal actions will be presumed to be founded on the common law, unless they expressly refer to the statute, and the averment that the act was done against the statute, is a substantive allegation, making it an offence, and, therefore, if this averment is not made, the statement in the close, “ whereby an action hath accrued &c.,” is a conclusion which does not follow from the prem[100]*100ises, because it is the breach of the statute and the averment of it, which alone constitutes the averment of an offence. Wells v. Iggulden, 5 Dowl. & Ryl. 13, and S. C. reported less fully in 3 Barn, and Cressw. 186. The whole reasoning goes upon the ground, that it is a penal action and charges an offence. The case of Lee v. Clarke, 2 East, 333, which was also debt for a penalty, was cited and principally relied on. Bayley J., in concluding the opinion of the court, says, “ inasmuch as this is a penal action, brought, not by a party grieved, but by a stranger, and founded wholly upon the statute, it appears to us, upon the authorities, that the statement of the offence charged is insufficient, unless the facts constituting the offence are set out, and it is stated as a substantive allegátion, that the offence was committed against the form of the statute.”
The cases in this commonwealth, where the point has been discussed, seem to recognise this distinction.
Peabody v. Hayt, 10 Mass. R. 36, was for a penalty. And it was held, that when a penalty is given by statute, and a civil action is provided for its recovery, there must be a direct allegation that thé offence was committed against the form of the statute.
In Nichols v. Squire, 5 Pick. 168, which was a qui tam action on the lottery act, the Court say, if the question were r. ew, perhaps courts would give less weight to the objection ; and afterwards add, as all penal actions partake of the nature of a criminal prosecution, for an offence, it may be good policy to require strictness in the proceedings.
In 1 Chit. Pl. (5th edit.) 406, where the rule is laid down, all the authorities cited are cases of penal actions.
2 Chit. Pl. (5th edit.) 495, in giving a form of debt for double rent for holding over, inserts the words, “ against the form of the statute,” but says in the note, that some of the forms contain this averment, and some do not, without expressing any opinion whether it is necessary or not. Probably it might be thought open to a question, whether such an action was a penal action or not.
In the present case, we think the action is purely remedial, and has none of the characteristics of a penal prosecu [101]*101tioa. All damages for neglect or breach of duty, operate to a certain extent as punishment; but the distinction is, that it is prosecuted for the purpose of punishment, and to deter others from offending in like manner.
Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a failure to perform that duty. The law gives him enhanced damages ; but still they are recoverable to his own use, and in form and substance the suit calls for indemnity.
It is analogous to the case of Stanley v. Wharton, 9 Price, 301 ; which was an action for the double value on a statute, by a landlord, against the defendant, a stranger, for assisting a tenant in carrying off and conceding his goods and chattels, by which the plaintiff was prevented from distraining for his rent. Graham B., in giving his opinion, upon the question whether the court would giant a new trial, after verdict for the defendant, said, “ the act is clearly distinguishable from those that impose penalties. I consider it entirely and purely remedial, providing for giving double the value, for the aggravation of the injury done to the landlord by the wrongful removal and concealment.”
It appears to us, that this is an action of similar character, and that in form and substance it is a remedial action. In an indictment or penal action, after averring the feet done, it must be averred that it was done against the form of the statute, to found the legal conclusion, that it was an offence, an act punishable. But in a remedial action it is not necessary to set out any offence. It is brought to obtain indemnity ; the plaintiff avers the liability of the town to keep the highway in repair, the actual state of dilapidation therein, notice of this to the defendants, the actual damage done to the plaintiff by reason thereof, and then draws the conclusion, which seems to us to be a legal and sound conclusion, that by these facts and by force of the statute, the plaintiff has a legal claim against the town for indemnity. It is not necessary to aver that the facts constitute an offence, but only that they give the plaintiff a title to indemnity The same facts do in law constitute an offence, and render a town punishable by indictment; and where they are set out in [102]*102an indictment, or other penal proceeding for that purpose, it would be necessary to follow the established form of pleading applicable to that form of proceeding. The circumstance that a judgment in this case would be no bar to an indictment against the town, founded upon the same facts, shows clearly the legal distinction between the two cases ; the one is remedial, and seeks indemnity against a party made liable by law to repair the loss he has occasioned, the other is penal, and seeks to punish the party for the violation of a duty imposed by law.
Motion for a new trial and motion in arrest of judgment overruled, and judgment on the verdict for double damages.