peace, made at the request of the said surveyor as aforesaid, that any public highway may be diverted and turned, either entirely or subject as aforesaid, so as to make the same *nearer or more commodious to the public, and the owner

*476] of the lands or grounds through which such new highway so proposed to be made shall consent thereto by writing under his hand, (m) or if it shall appear upon such view that any public highway is unnecessary, the said justices shall direct the surveyor to affix a notice in the form or to the effect of Schedule (No. 19) to this Act annexed in legible characters, at the place and by the side of each end of the said highway from whence the same is proposed to be turned, diverted, or stopped up, either entirely or subject as aforesaid, and also to insert the same notice in one newspaper published or generally circulated in the county where the highway so proposed to be diverted and turned, or stopped up, either entirely or subject as aforesaid (as the case may be) shall lie, for four successive weeks next after the said justices have viewed such public highway, and to affix a like notice on the door of the church of every parish in which such highway so proposed to be diverted, turned, or stopped up, either entirely or subject as aforesaid, or any part thereof, shall lie, on four successive Sundays next after the making such view; and the said several notices having been so published, and proof thereof having been given to the satisfaction of the said justices, and a plan having been delivered to them at the same time particularly describing the old and the proposed new highway, by metes, bounds, and admeasurement thereof, which plan shall be verified by some competent surveyor, the said justices shall proceed to certify(n) under their hands the fact of their having viewed the said highway as aforesaid, and that the proposed new highway is nearer or more commodious to the public; and if nearer, the said certificate shall state the number of yards or feet it is nearer, or if more commodious, the reasons why it is so; and if the highway is proposed to be stopped up as unnecessary, either entirely or subject as aforesaid, then the certificate shall state the reason why it is unnecessary; and the said certificate of the said justices, together with the proof and plan so laid before them as aforesaid, shall, as soon as conveniently may be after the making of the said certificate, be lodged with the clerk of the peace for the county in which the said highway is situated, and shall (at the quarter sessions which shall be holden for the limit

allegation of a "view" was separated in a very marked manner from that wherein the satisfaction of the justices, and the grounds of it were contained; and the justices might, consistently with a reasonable construction of the order, have been influenced by other proof than the view: Rex v. Marquis of Downshire, 4 A. & E. 698 (31 E. C. L. R.); 6 N. & M. 92. So an order, "we having upon view found, or it appearing unto us," was bad: Rex. v. Justices of Worcestershire, 8 B. & C. 244 (15 E. C. L. R.); and see Rex v. Justices of Kent, 10 B. & C. 477 (21 E. C. L. R.); Reg. v. Jones, 12 A. & E. 684 (40 E. C. L. R.); Reg. v. Newmarket R. Co, 15 Q. B. 702 (69 E. C. L. R.), that the order must have shown, on the face of it, that the justices had viewed the new line of road. The view by justices under the 55 Geo. 3, c. 68, s. 2, was not sufficient, unless it was a joint view, and unless the finding that the way was unnecessary was the result of that view: but it was held to be no objection that previously to their view the road had been stopped up de facto by the owner of the adjoining land without authority, as they might properly state in their order that they had viewed the old road if they had viewed the ground over which the right of way was: Rex v. Justices of Cambridgeshire, 4 A. & E. 111 (31 E. C. L. R.); 5 N. & M. 440. Where a person, over whose land a highway led, opened another road over his own land, between the same points, which the public used, and they ceased using the former road, it was held that nine years afterwards an order for stopping up the old road as unnecessary might be made under the 55 Geo. 3, c. 68, and that it was not necessary to proceed as in case of diverting a highway under the 13 Geo. 3, c. 78, s. 16, Ibid.

(m) There must be the consent of the person who is the owner of the estate, at the time when the order is made. An order stated that the new road was to pass through the lands of the late T. Jones, Esq., and that the justices had received evidence of the consent of the said T. Jones in his lifetime. But it was held that this order was bad, because it did not thereby appear that T. Jones was the owner of the estate at the time when the order was made: Rex v. Kirk, 1 B. & C. 21 (8 E. C. L. R.). And an assent to the turning of a road, given under the hand and seal of the solicitor and agent of the party through whose ground the new road is to pass, is not sufficient: Rex v. Justices of Kent, 1 B. & C. 722 (8 E. C. L. R.).

(n) As to the requisites of the certificate, see Reg. v. Worcestershire, 3 E. & B. 477 (77 E. C. L. R.).

within which the highway so diverted and turned, or stopped up, either entirely or subject as aforesaid, shall lie, next after the expiration of four weeks from the day of the said certificate of the said justices having been lodged with the clerk of the peace as aforesaid),(o) be read by the said clerk of the peace in open court; and the said certificate, together with the proof and plan as aforesaid, as well

as the consent in writing of the owner of the land through which the new [*477 highway is proposed to be made, shall be enrolled by the clerk of the peace amongst the records of the said court of quarter sessions; provided always, that any person whatever shall be at liberty, at any time previous to the said quarter sessions, to inspect the said certificate and plan so as aforesaid lodged with the said clerk of the peace, and to have a copy thereof, on payment to the clerk of the peace, at the rate of sixpence per folio, and a reasonable compensation for the copy of the plan."

Sec. 86. "In any case where it is proposed to stop up or divert more than one highway, which highways shall be deemed to be so connected together as that they cannot be separately stopped or diverted without interfering one with the other, it shall be lawful to include such different highways in one order or certificate."(p)

Sec. 87. "In the event of any appeal being brought against the whole or any part or parts of any order or certificate for diverting more highways than one, it shall be lawful for the Court to decide upon the propriety of confirming the whole or any part or parts of such order or certificate, without prejudice to the remaining part or parts thereof."

Sec. 88. "When any such certificate shall have been so given as aforesaid, it shall and may be lawful for any person who may think that he would be injured or aggrieved() if any such highway should be ordered to be diverted and turned or stopped up, either entirely or subject as aforesaid, and such new highway set out and appropriated in lieu thereof as aforesaid, or if any unnecessary highway should be ordered to be stopped up as aforesaid, to make his complaint thereof by appeal to the justices of the peace at the said quarter sessions, upon giving to the surveyor ten days' (r) notice in writing of such appeal, together with a statement in writing of the grounds of such appeal, who is hereby required, within forty-eight hours after the receipt of such notice, to deliver a copy of the same to the party by whom he was required to apply to the justices to view the said highway; *provided that in all cases where the said surveyor shall have been directed [*478 by the inhabitants in vestry assembled to apply to such justices as aforesaid, then the said surveyor shall not be required to deliver a copy of such notice to any party; provided also, that it shall not be lawful for the appellant to be heard in support of such appeal unless such notice and statement shall have been so given

(9) See Rex v. Justices of Kent, 1 B. & C. 622 (8 E. C. L. R.), as to the mode of computing the time from the giving the notices under the 55 Geo. 3, c. 68, s. 2.

(p) Before this Act there must have been a separate order for each road: Rex v. Milverton, 5 A. & E. 841 (31 E. C. L. R.) ; 1 N. & P. 179. So a road could not be diverted and stopped up by the same order: Rex v. Justices of Middlesex, 5 A. & E. 626 (31 E. C. L. R.); 1 N. & P. 92; Rex v. Justices of Kent, 10 B. & C. 477 (21 E. C. L. R.).

(9) The notice of appeal must state that the party is injured or aggrieved: Rex v. Justices of Essex, 5 B. & C. 431 (11 E. C. L. R.); Rex v. Justices of West Riding of Yorkshire, 7 B. & C. 678 (14 E. C. L. R.), or state facts from which it can be collected that he is injured or aggrieved: Rex v. Blackawton, 10 B. & C. 792 (21 E. C. L. R.); Rex v. Bond, 6 A. & E. 905 (33 E. C. L. R.). It is enough, however, to state that the appellant and his tenants, occupiers of a farm and lands near the said way, and who have heretofore used and have a right to use it, and also other persons, and the public will be put to great inconvenience: Rex v. Justices of the West Riding of Yorkshire, 4 B. & Ad. 685 (24 E. C. L. R.); 1 N. & M. 426. So it is sufficient to state that the appellants are aggrieved by being compelled to go a greater distance to the next market town from their residence, than they would have gone if the road intended to be stopped up were put and kept in repair; and if the notice states that they are aggrieved, it need not add that they are aggrieved by the order: Rex v. Adey, 4 N. & M. 365.

(r) The notice must be ten days before the sessions next after the expiration of four weeks from the lodging of the certificate with the clerk of the peace: Reg. v. Lancashire, 8 E. & B. 563 (92 E. C. L. R.). The days are to be calculated one day inclusive, the other exclusive, notwithstanding a rule of the sessions requiring a different computation: Rex v. Justices of West Riding of York, 4 B. & Ad. 685 (24 E. C. L. R.); 1 N. & M. 426; Rex *. Justices of Cumberland, 4 N. & M. 378; 2 A & E. 463 (29 E. C. L. R.).

as aforesaid, nor on the hearing of such appeal to go into or give evidence of any other grounds of appeal than those set forth in such statement as aforesaid."

Sec. 89. "In case of such appeal the justice at the said quarter sessions shall, for the purpose of determining whether the proposed new highway is nearer or more commodious to the public, or whether the public highway so intended to be stopped up, either entirely or subject as aforesaid, is unnecessary, or whether the said party appealing would be injured or aggrieved, impannel a jury of twelve disinterested men out of the persons returned to serve as jurymen at such quarter sessions and if, after hearing the evidence produced before them, the said jury shall return a verdict that the proposed new highway is nearer or more commodious to the public, or that the public highway so intended to be stopped up, either entirely or subject as aforesaid, is unnecessary, or that the party appealing would not be injured or aggrieved, then the said court of quarter sessions shall dismiss such appeal, and make the order herein mentioned for diverting and turning and stopping up such highway either entirely or subject as aforesaid, or for diverting, turning, and stopping up of such old highway, and purchasing the ground and soil for such new highway, or for stopping up such unnecessary highway either entirely or subject as aforesaid; but if the said jury shall return a verdict that the proposed new highway is not nearer or not more commodious to the public(s) or that the highway so intended to be stopped up, either entirely or subject as aforesaid, is not unnecessary, or that the party appealing would be injured or aggrieved, then the said court of quarter sessions shall allow such appeal, and shall not make such order as aforesaid." (t)

Sec. 91. "If no such appeal be made, (u) or being made shall be dismissed as aforesaid, then the justices at the said quarter sessions shall make an order(v) to

(s) Where the jury found that the new line was "not nearer but more commodious," it was held no order could be made for diverting the road: Reg. v. Shiles, 1 Q. B. 919 (41 E. C. L. R.). But this case was all but overruled in Reg. v. Wright, 8 Law T. 455; s. c., as Wright v. Frant, 4 B. & S. 118 (116 E. C. L. R.).

(t) Sec. 90. "The court of quarter sessions is hereby authorized and required to award to the party giving or receiving notice of appeal such costs and expenses as shall be incurred in prosecuting or resisting such appeal, whether the same shall be tried or not, and such costs and expenses shall be paid by the surveyor or other party as aforesaid at whose instance the notice for diverting and turning or stopping up the highway, either entirely or subject as aforesaid, shall have been given, and in case the said surveyor or other party as aforesaid shall not appear in support thereof, the said court of quarter sessions shall award the costs of the appellant to be paid by such surveyor or other party as aforesaid, and such costs shall be recoverable in the same manner as any penalties or forfeitures are recoverable under this Act." See Reg. v. W. R. of Yorkshire, 2 B. & S. 811 (110 E. C. L. R.).

(u) In Rex v. Justices of Worcestershire, 2 B. & A. 228, it was held that the sessions had a right to inquire whether the order, though there was no appeal, was made by proper authority before they confirmed it. And it is the duty of the sessions to see that the certificate and proof required by the Act are regular, though there is no appeal, before they make an order under this section: Reg. v. Worcestershire, 3 E. & B. 477 (77 E. C. L. R.). (v) An order for stopping up a footway under the 55 Geo. 3, c. 68, s. 2, must have distinctly stated in what parish or place the footway was situate: Rex v. Kenyon, 6 B. & C. 640 (13 E. C. L. R.). Where a road was diverted, the order must have shown on the face of it that the public had the same permanent right over the new line as they had along the old line: where, therefore, the new line passed partly over a road described in the order as a new turnpike road, it was held that as it might have been made a turnpike road only for a limited period, and if so, would subsist as a public road for that period only (see ante, p. 470), the order was bad; and if a permanent right was given to the public under the Turnpike Act, that ought to have been shown by the order: Rex v. Winter, 8 B. & C. 785 (15 E. C. L. R.). An order referring to a plan annexed to the order for the description of the road to be diverted was good; but a notice published pursuant to the 55 Geo. 3, c. 68, s. 2, merely describing the road by termini, and the part to be stopped up as so many yards of such road, was held bad: Rex v. Horner, 2 B. & Ad. 150 (22 E C. L. R.). If an order for stopping a highway were properly made and enrolled, under 55 Geo. 3, c. 68, it was unnecessary to render it effectual that an actual stoppage of the road should have taken place: Rex v. Milverton, 5 A. & E. 841 (31 E. C. L. R.); 1 N. & P. 179. A footway might be ordered to be stopped without being ordered to be sold: Rex v. Glover, 1 B & Ad. 482. It seems to have been thought that the justices had only jurisdiction over the roads within the division of the county for which they acted, under the 55 Geo. 3, c. 68: Rex v. Milverton, 5 A. & E .841 (31 E. Č. L. R.) ; 1 N. & P. 179.

[*479

divert and turn and to stop up such highway, either entirely or subject as aforesaid, or to divert, turn, and stop up such old highway, and to purchase the ground and soil for such new highway, or to stop up such unnecessary highway, either entirely or subject as aforesaid, by such ways and means, and subject to such exceptions and conditions in all respects as in this Act is mentioned in regard to highways to be widened, and the proceedings thereupon shall be binding and conclusive on all persons whomsoever, and the new highway so to be appropriated and set out shall be and forever after continue a public highway to all intents and purposes whatsoever, but no old highway (except in the case of stopping up such useless highway as herein is mentioned) shall be stopped until such new highway shall be completed and put into good condition and repair, and so certified by two justices of the peace upon view thereof, which certificate shall be returned to the clerk of the peace, and by him enrolled amongst the records of the court of quarter sessions next after such order as aforesaid shall have been made pursuant to the directions hereinbefore contained."

Sec. 92. "In every case in which a highway shall have been turned or diverted under the provisions of this Act, the parish or other party which was liable to the repair of the old highway shall be liable to the repair of the new highway, without any reference whatever to its parochial locality."

Sec. 93. "The powers and provisions in this Act contained with respect to the widening and enlarging, diverting, turning, or stopping up any highway shall be applicable to all highways which any person, bodies politic or corporate, is or are bound to repair by reason of any grant, tenure, limitation, or appointment of any charitable gift, or otherwise howsoever; and that when such last-mentioned highways are so widened or enlarged, turned or diverted, the same shall and may, by an order of the justices at a special sessions for the highways, be placed under the control and care of the surveyor of the parish in which such highways may be situate, and shall be from time to time thereafter repaired and kept in repair by the said parish: provided also, that the said highways so widened, enlarged, diverted, or turned, shall be viewed by two justices of the peace, who shall make a report thereof to the justices at a special sessions for the highways, and [*480 such last-mentioned justices shall, by an order under their hands, fix the proportionate sum which shall be annually paid, or shall fix a certain sum to be paid, by such person, bodies politic or corporate, his or their heirs, successors, or assigns, to the said surveyors of the parish, in lieu of thereafter repairing the said part of the said old highway, and the order of the said last-mentioned justices shall be and continue binding on all such persons, bodies politic or corporate, their heirs, successors, or assigns, and in default of payment thereof the said surveyor shall proceed for the recovery of the same in the manner as any penalties and forfeitures are recoverable under this Act."

It frequently happened that the boundaries of parishes passed though the middle of a highway, one side of the highway being situated in one parish, and the other side of the way being situated in another parish, whereby great inconveniences arose to the parishes in setting the time and manner of repairing such highway; and it was therefore provided by the 5 & 6 Will. 4, c. 50, s. 58, that the justices, at a special sessions for the highways, upon application by the surveyor, may divide the whole of any such common highway, by a transverse line crossing it, into two equal parts, or into two such unequal parts and proportions as in consideration of the soil, waters, floods, the inequality of such highway, or any other circumstances, they think just.(w)

Besides the methods which have been already mentioned, roads are sometimes changed or stopped, or new ones created by turnpike Acts, inclosure Acts, or other Acts of Parliament, containing specific enactments for such purposes; but such new roads may or may not be public, according to the provisions of the particular Acts; and we have seen that where a road was set out by commissioners under an

(w) The Act sets forth particularly the proceedings to be had for the purpose of such division; and afterwards enacts as to the liabilities of the parishes respectively to repair their portion after such division; see post, p. 498.

VOL. I.-25

inclosure Act, the number of persons using or repairing it would not make it a public way, it not being common to all the King's subjects.(x)

The commissioners appointed under local inclosure Acts have power to stop up and divert public ways over lands to be inclosed by the 41 Geo. 3, c. 109, s. 8; but that section contains a proviso, that where such commissioners have power, under any inclosure Act, to stop up any old road leading through old inclosures, they shall not exercise that power without the concurrence of two justices; it follows as a necessary consequence from the proviso taken with the rest of the clause, that if no such power is given to commissioners by the particular inclosure Act, it cannot exist at all. Where, therefore, an Act gave the commissioners no power to stop up roads passing through old inclosures, and they did not mention the way in question, which ran over some old inclosures and across a few yards of waste, which they allotted: it was held that the way existed as it did before the inclosure Act (y)

Under the 47 Geo. 3, c. 109, s. 8, the commissioners are authorized to stop up or divert footways as well as carriage-roads; and the proviso at the end of the section is not confined to carriage *roads, but extends to every species of way; and, *481] therefore, where the commissioners were empowered by a local inclosure Act to stop up all ways passing over the lands to be inclosed, as well as ways passing through old inclosures in the parish, it was held that in order effectually to stop up a public footway passing partly over the lands to be inclosed and partly over an old inclosure, it was necessary for them to have the concurrence and order of two justices, and no such order or concurrence having been obtained, it was held that a footway which the commissioners ordered to be stopped up had not been effectually stopped, but continued a public footway.(z)

Where an inclosure Act provided that all ways not set out by the commissioners should be extinguished, and also authorized the stopping up of roads through old inclosures, provided that no roads should be stopped up without the order of two justices, and a road through old inclosures opened upon the waste, and at such opening joined another road, which formed a continuation of the first road, and ran entirely over waste land; and no valid order was obtained for stopping up the road, which ran through the old inclosures, and the road over the waste land was not set out or continued by the commissioners: it was held that this omission to set out or continue the road, did not extinguish the road through the old inclosures, and create a consequent stoppage of the road over the waste, but that, on the contrary, the road through the old inclosures remaining open for want of an order of justices, as a consequence the road over the waste remained open also.(a)

Upon an indictment against the township of Hatfield for non-repair of a highway, it appeared that the road was an ancient highway which passed over part of a common then within Hatfield, and that by an inclosure Act (51 Geo. 3, c. 30) for inclosing Hatfield and other townships, it was directed that the allotments in respect of certain messuages should be part of the townships within which the messuages were situate, and the commissioners were to make such orders as they should think proper concerning all public roads, " in what township and place the same are respectively situate," and by whom they ought to be repaired. The commissioners by their award directed there should be the road in question, and new allotments on each side of it were declared to be in other townships than Hatfield, but it was not declared in what township the road was situate, or by whom it was to be repaired. The prescriptive liability set forth in the indictment was proved, but no certificate of justices was produced. It was held that the road continued in Hatfield, but that Hatfield could not be indicted for not repairing it for want of a certificate of justices under the 41 Geo. 3, c. 109, s. 9, declaring it to be fully completed.(b)

Upon an indictment for the non-repair of an ancient bridleway, it appeared that

(x) Ante, p. 461.

(y) Thackrah v. Seymour, 3 Tyrw. 87.

(z) Logan v. Burton, 5 B. & C. 513 (11 E. C. L. R.). See Harber v. Rand, 9 Price 58. (a) Rex v. Marquis of Downshire, 4 A. & E. 698 (31 E. C. L. R.); 6 N. & M. 92. (b) Rex v. Hatfield, 4 A. & E. 156 (31 E. C. L. R.), A. D. 1835.