Diverting highways.

understood that to ground an order of this kind, the view by justices is not sufficient, unless it be a joint view, nor unless their finding be come to immediately upon it. The justices are to make the order on consulting together, and they cannot proceed upon a separate view."

The justices also must be satisfied that the owner of the lands or grounds through which such new highway so proposed to be made has consented thereto, by writing under his hand.

The only two purposes for which a highway can be diverted are those of making the road nearer or more commodious to the public. If neither one nor the other of these objects be to be effected by the alteration, the act of Parliament does not apply, and the justices ought, on ascertaining the fact, to abstain from any further proceeding.

If the justices are satisfied that the preliminary facts are correct, and that the intended stopping up and diverting is desirable for the reasons before given, or that the highway is unnecessary, they are to direct the surveyor to give certain notices, as set out in the 85th section, and the schedules there referred to. Of course it will be unnecessary for the justices to instruct the surveyor as to what these notices are to be; those who have originated the proceedings will, of course, look to their regularity.

At the expiration of the period, during which the various notices are to remain in force, the surveyor will apply to the two justices for their certificate. But before they will grant it, they will require legal proof that all the requisites as regards the notices have been complied with; they will also require a plan particularly describing the old and the proposed new highway by metes, bounds, and admeasurement, verified by some competent surveyor. Upon being satisfied of the regularity of the proceedings, the justices

will certifiy under their hands the fact of their Diverting highways. having viewed the highway, and that the proposed new highway is nearer or more commodious to the public; and, if nearer, 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, then the reason why it is unnecessary.

This certificate, together with the proof and plan, are to be lodged with the clerk of the peace for the county, and are to be read by such clerk in open court, and are; together with the owner's written consent, to be enrolled amongst the records of the court.

It may here be observed that the proof of the due giving of the notices, &c. should be by affidavit, since such proof is to be forwarded with the certificate, and also that the newspapers in which the notices appear should be attached to the proof.

There is a power of appeal given with which at present it is unnecessary to deal.

If the quarter sessions make an order for the diverting or stopping up, such order may be at once carried into effect; but no old highway (except in the case of stopping up a useless highway,) is to be stopped up until the new highway is completed and put into good condition and repair, and so certified by two justices of the peace upon view thereof, which certificate is to be returned to the clerk of the peace and enrolled at the sessions. The two justices here mentioned need not be the same two that made the original certificate.

complaint

The duties of justices when complaint is made Duties when to them that a highway is out of repair are highly made of important and require great attention, and such highway duties will vary according as the obligation to repair. repair is or is not disputed.

being out of

Duties when

When the obligation to repair is not in dispute, obligation to

repair not disputed.

the course of proceeding will be in accordance with the 94th section of the 5 & 6 Will. 4, c. 50, which enacts, that if any highway is out of repair, or is not well or sufficiently repaired and amended, and information thereof is given to any justice of the peace, it shall be lawful for him to issue a summons requiring the surveyor of the parish or other person chargeable with the repairs to appear before the justices at some special sessions for the highways, and the said justice shall either appoint some competent person to view the same and report thereon to the justices in special sessions assembled on a certain day, at which the surveyor or other person shall be directed to attend, or the said justices shall fix a day whereon they, or any two of them, shall attend to view the said highway; and if to the justices at such special sessions on the day and place fixed it shall appear on the view of such justices, &c., that the said highway is not in a state of thorough and effectual repair, then the said justices at such last-mentioned sessions shall convict the said surveyor or other party liable to the repair in any penalty not exceeding 5l., and shall make an order on the said surveyor or other party liable, by which order they shall limit and appoint a time for the repairing of the same; and in default of such repairs being effectually made within the time so limited, the said surveyor or such other person shall forfeit and pay to some person to be named and appointed in a second order a sum of money to be therein stated, and which shall be equal in amount to the sum which the justices shall, on the evidence produced before them, judge requisite for repairing such highway, which money is to be recoverable in the same manner as any forfeiture is recoverable under the act; and such money, when recovered, is to be applied to the repair of such highway; and the justices are to direct in their order what proportion is to

be paid by each of the parties. The section then contains a provision to meet the case of a turnpike road, and restrains the justices from making such an order where the duty or obligation of repairing comes in question. This section so fully and clearly explains the duties of the justices that no comment upon it is at all necessary. When the liability or obligation to repair is Duties when liability to disputed, the duties of the justices assume a far repair is different form; and in such a case they have no disputed. functions themselves to decide the question, but are bound to put the matter in such a train that the question may be decided by a jury. The 95th section of the before-mentioned act points out what, under such circumstances, is to be done. That section says that if, on the hearing of any such summons respecting the repair of any highway, the duty or obligation of such repairs is denied by the surveyor on behalf of the inhabitants of the parish, or by any other party charged therewith, it shall then be lawful for such justices, and they are required, to direct a bill of indictment to be preferred, and the necessary witnesses in support thereof to be subpoenaed at the next assizes to be holden in and for the said county, or at the next General Quarter Sessions against the inhabitants of the parish, or the party to be named in such order, for suffering and permitting the said highway to be out of repair.

It will be seen from the foregoing, that if the obligation to repair be bonâ fide disputed, the justices have no discretion, but are bound to direct an indictment to be preferred, and it is no part of their duty to try the question of liability.

to repair of

By the 4 & 5 Vict. c. 50, provision is made Applying for applying a portion of the highway rate to the highway rate repairs of a turnpike road where the funds of the turnpike latter are insufficient for the purpose; this provision is to be made by the justices at a special

road.

session for highways after hearing the parties interested. This act has by successive acts been continued to the present day.

Both under the General Turnpike Act (3 Geo. 4, c. 126,) and the several acts amending it, and the General Highway Act (the 5 & 6 Will. 4, c. 50,) very numerous duties devolve upon justices of the peace, but as they are not of a very special character, and as what has herein been treated of will sufficiently inform the justice of the peculiar nature of the duties he may be called upon to fulfil, it is deemed unnecessary further to extend observations upon this branch of the law by any additional remarks.

CHAPTER XVII.

LANDLORD AND TENANT-OF GIVING POSSESSION OF PREMISES WHEN TENANT HAS DESERTED THEM OF GIVING POSSESSION OF CERTAIN PREMISES WHEN TENANCY HAS EXPIREDGOODS FRAUDULENTLY REMOVED TO AVOID A DISTRESS-EXCESSIVE COSTS OF DISTRESS.

THE peculiar functions of justices of the peace in interfering in certain cases where the rights of landlords are assailed, demand a few observations in this place. Ordinarily, the summary and extensive powers which the law places at the disposal of landlords themselves, for their own protection against dishonest tenants, are sufficient without calling for the assistance of any of the magistracy: there are, however,