PART I.

THE HIGHWAY ACT, 1862.

25 & 26 VICT. CAP. 61.

AN ACT FOR THE BETTER MANAGEMENT OF HIGHWAYS IN ENGLAND. [29TH JULY, 1862.]

WHEREAS it is expedient to amend the law relating to highways in England: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

PRELIMINARY.

Limits of Act.

1. This Act shall not extend to Scotland or Ireland.

Definition of "County" and "Borough."

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2. The word "county" in this Act shall not include a county of a city" or a county of a town," but where a county, as herein before defined, (a) is divided into ridings or

(a) The words "as herein before defined," as here used, are not very intelligible; the word "county," if defined at all in the preceding part of the section, is only defined by the process of excluding "county of a city" and "county of a town;" and if such counties be excluded, then those which remain are the territorial counties, or divisions of counties, having separate courts of quarter sessions of the peace. By the Act of 1864, 27 & 28 Vict. c. 101, s. 3, post, p. 127, "county" shall include any division of a county that has a separate county treasurer; and by the Act of 1878, 41 & 42 Vict. c. 77, s. 38, post, p. 220, a liberty not assessable to the county rate shall be deemed a separate county for all the purposes of that Act, except those relating to the formation and alteration of highway districts, and the transfer of powers of a Highway Board.

other divisions having a separate court of quarter sessions of the peace, it shall mean each such division or riding, and not the entire county; and for the purposes of this Act all liberties and franchises, (b) except the liberty of St. Albans which shall be considered a county, and except boroughs as hereinafter defined, shall be considered as forming part of that county by which they are surrounded, or if partly surrounded by two or more counties, then as forming part of that county with which they have the longest common boundary; the word "borough" shall mean a borough as defined by the Act of the session holden in the Fifth and Sixth Years of King William the Fourth, Chapter Seventy-six, "for the regulation of municipal corporations in England and Wales," or any place to which the provisions of the said Act have been or shall hereafter have been extended. (c)

Definition of "Parish," "Highway District," and

Highway Board."

3. The word "parish" shall include any place maintaining its own highways; (d) the expressions "highway district" and "Highway Board" shall refer only to highway districts formed and Highway Boards constituted in pursuance of this Act.

Definition of "Principal Act," and "Highway Acts."

4. The Act passed in the session holden in the Fifth and Sixth Years of the Reign of his late Majesty King William the Fourth, Chapter Fifty, and intituled "An Act to consolidate and amend the Laws relating to Highways in that

(b) A Chartered Corporate Town not under the Municipal Corporations Act would be included in the words "liberties and franchises," and for the purposes of the Act would be attached to the county. See Jacob's "Law Dictionary" and Wood's "Institute as to the meaning

of the word Franchise.

(c) By 5 & 6 Wm. IV. c. 76, s. 142, the word "borough" shall be construed to mean city, borough, port, cinque port, or town corporate named in one of the schedules (A) and (B) to the Act. See also the case of Giles v. Glubb, post, p. 84.

(d) See 27 & 28 Vict. c. 101, s. 3, for the definition of "Poor Law

part of Great Britain called England," is hereinafter distinguished as "the principal Act;" and this Act and the principal Act, and the other Acts amending the principal Act, are hereinafter included under the expression "the Highway Acts." (e)

FORMATION OF HIGHWAY DISTRICTS. (ƒ)

Powers to justices, in General or Quarter Sessions assembled, to issue Provisional Orders for forming Highway Districts.

5. Any five or more justices of a county may by writing under their hands require the Clerk of the Peace to add to or send with the notice required by law to be given of the holding of courts of general or quarter sessions (g) a notice in the form marked (A) in the schedule, or as near thereto as circumstances admit, that at the court therein

Parish" and "Highway Parish," and also s. 5 of that Act. And see s. 32 (post, p. 110), as to places formerly extra-parochial, and 41 & 42 Vict. c. 77, s. 25 (post, p. 211), as to parishes which do not in point of fact maintain any highways.

(e) See 27 & 28 Vict. c. 101, s. 1, "Short Title of Highway Acts." There is no express incorporation of the Amendment Act of 1878 with these Acts.

(f) With reference to highways and bridges in the county of Sussex, see 28 Vict. c. 37.

(g) The Commission of the Peace contains the following direction:"And We command, by the tenor of these presents, our Sheriff of that at certain days and places, which you or any such two or more of you as is aforesaid shall make known to him, he cause to come before you, or such two or more of you as aforesaid, so many and such good and lawful men of his bailiwick (as well within liberties as without), by whom the truth of the matter in the premises shall be better known and inquired into." A precept is accordingly issued about fifteen days before the sessions under the hands and seals of two of the justices, commanding the sheriff of the county to have the jurors before the justices of the county on a day and at a place mentioned, and to make known to all coroners, gaolers, high constables, &c., to be then in attendance, and to proclaim throughout the county that the sessions will be then and there holden, &c. Public notice of the time and place of holding the sessions is also given by advertisement.

By 11 Geo. IV. & 1 Wm. IV. c. 70, s. 25, the justices of the peace in every county, riding, or division for which quarter sessions of the peace ought to be held, shall hold their general quarter sessions of the peace in the first week after the 11th day of October, in the first week after the 28th day of December, in the first week after the 31st day of March, and in the first week after the 24th day of June. But

mentioned a proposal (h) will be made to the justices to divide the county or some part thereof into highway districts, or to constitute the whole or some part thereof a highway district, (i) and also require the Clerk of the Peace to send by post in a prepaid letter notices in the aforesaid form to the churchwardens or overseers of every parish mentioned in the said notice; (j) and upon such requisition being complied with the justices assembled at the court of general or quarter sessions mentioned in the

with regard to the sessions which fall to be held during the time usually fixed for the spring assizes, the 4 & 5 Wm. IV. c. 47 enacts that the justices assembled in their general quarter sessions in the week next after the 28th December in any year, may name (if they shall see occasion to do so) two justices of the peace, who shall be empowered, as soon as may be after the time for holding the spring assizes shall be appointed, to fix the day for holding the next general quarter sessions of the peace for such county, riding, or division, so as such time shall not be earlier than the 7th day of March, nor later than the 22nd day of April, and to give notice of the day so fixed by advertisement in newspaper as shall be directed by the justices so assembled; and in every such case the general quarter sessions held on the day so fixed and notified shall be valid, and it shall not be necessary to hold any sessions of the peace for such county, riding, or division in the next week after the 31st day of March. Where, however, no such day is fixed, the sessions shall be held in the week next after the 31st day of March, as by the 11 Geo. IV. & 1 Wm. IV. c. 70, s. 25, is required. (h) The proposal" will properly be made by the five or more justices who give the notice in writing referred to in the preceding part of the section.

such

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(2) According to the form (A) in the schedule to this Act, the proposal may be (1) to divide the county into highway districts, (2) to divide the parts of a county into highway districts, (3) to constitute the whole county a highway district, or (4) to constitute particular parishes in the county a highway district.

But in order that highway districts may be made so far as possible coincident with rural sanitary districts, it is enacted by the Act of 1878, 41 & 42 Vict. c. 77, s. 3, post, p. 181, that in forming any highway districts the county authority (that is, the justices in general or quarter sessions assembled) shall have regard to the boundaries of the rural sanitary districts in their county, and shall, so far as may be found practicable, form highway districts so as to be coincident in area with rural sanitary districts, or wholly contained within rural sanitary districts.

(j) The notice is to be sent to the churchwardens or overseers; it will, however, be the most advisable course to address it to the churchwardens and overseers of the several parishes. When justices propose to form a highway district, it is a condition precedent that notice be first sent to all the parishes proposed to be included, and the order is bad if any parish has been omitted. Reg. v. Sussex JJ., 28 J. P. 469.

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notice may entertain such proposal, and make a provisional order dividing their county or some part thereof into highway districts, or constituting the whole or some part of their county a highway district, for the more convenient management of highways, (k) but such order shall not be of any validity unless it is confirmed by a final order of the justices assembled at some subsequent court (1) of general or quarter sessions. (m)

Regulations as to the making, &c., of Orders of Justices.

6. The following regulations shall be enacted as to the making, confirmation, and approval of the orders of justices for forming highway districts :

(1.) The justices making a provisional order under this Act shall appoint some subsequent court of general or quarter sessions, to be held within a period of not more than six months, for the taking into consideration the confirmation of the provisional order by a final order:

(2.) The Clerk of the Peace shall add to or send with the notice required by law to be given of the holding of courts of general or quarter sessions (n) a notice in the form marked (B) in the schedule hereto, or as near thereto as circumstances admit, of the appointment so made by the justices in relation to the confirmation of the provisional order:

(3.) The justices assembled at the appointed court of general or quarter sessions may make a further order quashing the provisional order, or confirming it with or without variations, or respiting the

(k) See note (i) supra.

(1) The subsequent court must be held within a period of not more than six months after the making of the provisional order. See s. 6, post.

(m) The proviso to this section is repealed by 27 & 28 Vict. c. 101, s. 6, and in lieu of it, it is enacted that when it is proposed that only part of a county is to be constituted a highway district, not less than two out of the five justices making such proposal shall be resident in the said district, or acting in the petty sessional division in which such district, or some part thereof, is situate.

(n) As to the sessions, see 11 Geo. IV. & 1 Wm. IV. c. 70, s. 25, ante, page 80.