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consideration of such provisional order to some subsequent court of general or quarter sessions, provided,

Firstly, that where the variations made extend to altering the parishes (o) constituting any highway district or districts as formed in the provisional order, the order shall be deemed to be provisional only, and shall be dealt with accordingly:

Secondly, that where a respite is made to any subsequent general or quarter sessions, the Clerk of the Peace shall give notice of such respite in manner in which he is required to give notice in respect of sessions at which a provisional or final order is proposed to be made: (p)

(4.) The provisional order shall state the parishes to be united in each district, (q) the name by which the district is to be known, (r) and the number of waywardens (such number to be at least one) which each parish is to elect: (s)

(0) The words "altering the parishes" appear to mean adding to or taking one or more parishes from those proposed to be united into a highway district. If the original order comprised more than one highway district, but the variations affect only one of the districts, the order is only to be deemed provisional so far as regards that district, see 27 & 28 Vict. c. 101, s. 4, post, p. 127.

With regard to subsequent alterations of a highway district, see s. 39 (post, p. 116), and 27 & 28 Vict. c. 101, s. 14 (post, p. 136).

(p) As to the notice here mentioned, see s. 5, and note (g), ante, p. 80.

(q) Care must be taken that each parish named in the order comes within the definition of a parish in s. 3, ante, and in s. 3 of 27 & 28 Vict. c. 101. Further with regard to this provision see 27 & 28 Vict. c. 101, s. 4. post, p. 127.

(r) In no case should the name of an individual be given to the district. The proper name to give it will be the name of the principal parish comprised in it; or if the district be conterminous with a division of a county, as a hundred, &c., it should be named after the hundred, &c.

(s) As regards an alteration in the number of waywardens see 27 & 28 Vict. c. 101, s. 14. As to the election of waywardens see s. 10, post; and particularly the last division but one of that section, and the note thereon.

Where a provisional order for forming a highway district constituted

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(t)

(5.) (6.) Notice of the provisional and final orders shall as soon as possible after the making thereof be given by the Clerk of the Peace, by publishing a copy in the London Gazette (u) and in one or more newspapers circulating in the county, or if the whole county is not affected by such order in one or more newspapers circulating in the district affected by such orders, (v) and by sending a copy by post in a prepaid letter to the overseers of every parish

a certain township (E) and other parishes and places named therein a highway district, and directed that one waywarden should be elected for each of the said parishes, townships, and places, and the township of (E) was divided into three hamlets, each of which maintained its own highways, which were not separately named in the order, it was held that the provisional order and the final order based on it were bad, as the first did not state whether any or what waywardens were to be elected for the three hamlets under 25 & 26 Vict. c. 61, s. 6 (subsection 4)-Reg. v. York (W.R.) JJ., 34 L. J. M. C. 227, 12 L. T. (N. S.) 580, 29 J. P. 440.

The borough of East Looe is an ancient borough, having liberties and franchises, with charters containing non-intromittant clauses, but is not a borough within the exception in s. 2 of the 25 & 26 Vict. c. 61. It is wholly surrounded by the county of Cornwall, and maintains its own poor and highways. Under these circumstances, it was held that the justices of the county might take the proper proceedings in quarter sessions for making it a part of a highway district under the 25 & 26 Vict. c. 61, s. 5; and further, that they had jurisdiction to hear a complaint by the waywardens against the overseers of the poor of the borough for not paying to the treasurer of the Highway Board the sum ordered by the precept of the Board to be levied in the borough. It was also held that the following description of the borough "The several parishes, townships, tithings, hamlets, or places of Liskeard Point, &c., &c., East Looe, &c., &c., shall be inserted, &c., &c."—in the order constituting the highway district, was not such an imperfect description as to vitiate the order.-Giles v. Glubb, 13 L. T. (N. S.) 526.

(t) This subsection is repealed by 27 & 28 Vict. c. 101, s. 10, post,

p. 132.

(u) But by 27 & 28 Vict. c. 101, s. 12, no order of justices forming a highway district shall be invalidated by reason of its not being published in the London Gazette.

(v) If any newspaper be published within the district it will be proper that the notices should be published in it; but they may also be published in any other newspaper "circulating" in the district; though what is meant by "circulating" is not very clear: the Times and other London newspapers "circulate" in most districts throughout the country.

within the proposed highway district, and there shall be added to the notice of the provisional order the date of the sessions at which the confirmation of such order will be considered.

Restrictions on formation of Highway Districts.

7. The following restrictions shall be imposed with respect to the formation of highway districts in pursuance of this Act (w):

Firstly, there shall not be included in any highway district formed in pursuance of this Act any of the following places; that is to say,

Any part of a county to which the Act passed in
the session holden in the Twenty-third and
Twenty-fourth Years of the reign of Her present
Majesty, Chapter Sixty-eight, and intituled "An
Act for the better Management and Control of the
Highways in South Wales," extends: (x)
The Isle of Wight: (y)

Any district constituted under the Public Health
Act, 1848, and the Local Government Act, 1858,
or either of such Acts: (z)

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(w) See also the 41 & 42 Vict. c. 77, s. 3, post, p. 181, which requires that highway districts shall be made so far as practicable coincident with rural sanitary districts.

(x) That is to say, the counties of Glamorgan, Brecknock, Radnor, Carmarthen, Pembroke, and Cardigan. (See 23 & 24 Vict. c. 68, s. 44, in Glen's "Highway Laws," second edition.)

(y) The Local Act, 53 Geo. III. cap. xcii., provides for repairing the roads and highways in the Isle of Wight.

(z) The corresponding provisions of the Public Health Act, 1875, are now, by s. 313 of that Act, to be substituted for the provisions of the Acts mentioned in this clause; and the clause must therefore be read as prohibiting the inclusion in a highway district of a local government district constituted under the Public Health Act, 1875. As regards highways in such districts, see Glen's "Law of Public Health and Local Government" (ninth edition); and also Glen's Highway Laws" (second edition).

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With regard to the inclusion of part of a highway district in a local government district, see s. 41, post, p. 118.

(a) This clause, which required the consent of a "Board for the repair of Highways" formed under s. 18 of the Highway Act, 1835 (5

Any parish or place within the limits of the metropolis as defined by the Act passed in the session holden in the Eighteenth and Nineteenth Years of Her Majesty, Chapter One Hundred and Twenty, and intituled "An Act for the better Local Management of the Metropolis:" (a) Any parish or place, or part of a parish or place, the highways whereof are maintained under the provisions of any local Act of Parliament: (b) Secondly, there shall not be included in any highway district formed in pursuance of this Act any parish or place or part of a parish or place within the limits of a borough without the consent, firstly, of the council of such borough, and, secondly, of the vestry of the parish which, or part of which, is proposed to be included: (c)

Thirdly, where any parish separately maintaining its

& 6 Wm. IV., c. 50), on or before the 29th January, 1863, to be given where it was proposed to include any parish under their jurisdiction in a highway district under the present Act, is now repealed by s. 12 of the 41 & 42 Vict., c. 77, post, p. 199.

By s. 42, subsection 4, post, the 18th and 19th sections of 5 & 6 Wm. IV. c. 50, relating to the appointment of Highway Boards under that Act for large parishes, shall not apply to any district formed under the 25 & 26 Vict. c. 61; such Boards may, however, still be appointed in other places.

(a) See schedules (A) (B) and (C) of 18 & 19 Vict. c. 120.

(b) By 26 & 27 Vict. c. 94, s. 1, "Local Act," as here used, does not include Turnpike Acts.

In the case of Milton next Sittingbourne v. Faversham District Highway Board (10 B. & S. 548), a question arose as to the jurisdiction of the Board, whose district included that part of the parish of M. not within the town of M., the town of M. being under the jurisdiction of Improvement Commissioners appointed in pursuance of "an Act for better paving, &c., the town of M.," the limits of which Act, however, were not otherwise defined. It was held that the word "town" meant the town as it extended from time to time; that a highway was within the town if there was a continuous series of houses in it so contiguous as to form a congregation of human habitations; and that the fact of the commissioners lighting the highways was not conclusive as to their being in the town.

(c) The consent of the vestry must be given at a meeting duly convened for the purpose, and the "proposal" should be stated in the notice convening the meeting. Further, with regard to this section, see 27 & 28 Vict. c. 101, s. 7, third subdivision; and also the same statute, s. 8.

own highways is situate in more than one county the whole of such parish shall, for the purposes of this Act, be deemed to be within the county within which the church of such parish, or (if there be no church) the greater part (d) of such parish, is situate: Lastly, where a parish separately maintaining its own poor is divided into townships, tithings, hamlets, or places, each of which separately maintains its own highways, it shall be lawful for the justices, if they think fit, in their provisional order to combine such townships, tithings, hamlets, and places, and to declare that no separate waywardens shall be elected for such townships, tithings, hamlets, and places, and that such parish shall be subject to the same liabilities in respect of all the highways within it which were before maintained by such townships, tithings, hamlets, and places separately, as if all their several liabilities had attached to the whole parish; (e) and that a waywarden or way

(d) The words here used, "greater part," are not very clear; they admit of more than one construction: they may refer to the greater part in respect of area, or to the greater part in respect of rateable value. Perhaps the former would be the proper construction, though practically it may not be of much moment which county the parish is deemed to be within. See, however, the new provision in 27 & 28 Vict. c. 101, s. 13, as to the union of parishes in different counties; also 41 & 42 Vict. c. 77, s. 19, under which a highway district situated in more than one county is to be treated as if the portion in each county were a separate highway district, for the purposes of the provisions relating to the repayment of part of the expenses of maintenance of main roads. (e) By 4 & 5 Wm. IV. c. 76, s. 109, the word "parish" shall be construed to include any parish, city, borough, town, township, liberty, precinct, vill, village, hamlet, tithing, chapelry, or any other place, or division or district of a place, maintaining its own poor, whether parochial or extra-parochial: the above words, "parish separately maintaining its own poor," refer to a parish divided into townships, &c., which have not had separate overseers appointed, and therefore do not At common law, a parish is separately maintain their own poor. primarily liable to repair all public highways within its ambit; but, nevertheless, townships and other smaller divisions of a parish are often by custom liable to repair the highways within them. such is the case, the Act enables the justices to combine the townships, &c., so that the whole Poor Law parish shall be liable jointly for the repair of the highways within it. Where a township or other division of a parish separately maintains its own poor, and does not come within the definition of a parish in s. 3 of the present Act, being further subdivided for highway purposes, the justices may, it would seem, combine the subdivided portions of the township, so as to make

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