this section referred to "as the applicant authority") may apply to the court of summary jurisdiction of such petty sessional division to view by two or more justices, being members of the court, the highway to which such application relates, and on such view being had, if the court of summary jurisdiction is of opinion that the application ought to be proceeded with, it shall by notice in writing to the owners or reputed owners and occupiers of all lands abutting upon such highway, and by public notice, appoint a time and place, not earlier than one month from the date of such notice, at which it will be prepared to hear all persons objecting to such highway being declared unnecessary for public use, and not repairable at the expense of the public.

On the day and at the place appointed, the court shall hear any persons objecting to an order being made by the court that such highway is unnecessary for public use and ought not to be repairable at the public expense, and shall make an order either dismissing the application or declaring such highway unnecessary for public use, and that it ought not to be repaired at the public expense.

If the court make such last-mentioned order as aforesaid, the expenses of repairing such highway shall cease to be defrayed out of any public rate. (z)

(z) By the 27 & 28 Vict. c. 101, s. 21, ante, p. 140, a Highway Board may obtain an order of quarter sessions for rendering an unnecessary highway no longer repairable by the inhabitants at large, in the manner provided by ss. 84-93 of the Highway Act, 1835, for stopping up a highway; but the method now provided by the above section, which applies to urban sanitary authorities (other than those of boroughs with separate quarter sessions), and to surveyors of highway parishes, as well as to highway boards, affords a simpler mode of proceeding; application under the section will be made to petty sessions instead of to quarter sessions, though a subsequent application to render the highway again repairable at the public expense, under the latter part of the section, must be made to quarter sessions.

Although the justices declare the highway "unnecessary for public use," it does not appear that the effect of their order will be to deprive the public of their right of way over the highway, for it will be noticed that the latter portion of the section speaks of the road as being a highway" subsequently to the making of the order by justices. If therefore, it is desired that the highway shall be actually stopped up, it will still be necessary to obtain an order of quarter sessions under ss. 84-93 of the Highway Act, 1835.

66

P

Public notice of the time and place appointed for hearing a case under this section shall be given by the applicant authority as follows; that is to say,

(1.) By advertising a notice of the time and place appointed for the hearing and the object of the hearing, with a description of the highway to which it refers in some local newspaper circulating in the district in which such highway is situate once at least in each of the four weeks preceding the hearing; and

(2.) By causing a copy of such notice to be affixed, at least fourteen days before the hearing, to the principal doors of every church and chapel (a) in the parish in which such highway is situate, or in some conspicuous position near such highway. And the application shall not be entertained by the court until the fact of such public notice having been given is proved to its satisfaction.

If at any time after an order has been made by a court of summary jurisdiction under this section, upon application of any person interested in the maintenance of the highway in respect of which such order has been made, after one month's previous notice in writing thereof to the applicant authority, (b) it appears to the court of quarter sessions that from any change of circumstances since the time of the making of any such order as aforesaid such highway has become of public use, and ought to be maintained at the public expense, the court of quarter sessions may direct that the liability of such highway to be maintained at the public expense shall revive from and after such day as they may name in their order, and such highway shall thenceforth be maintained out of the rate applicable to payment of the expenses of repairing other highways repairable by the applicant authority; and the said court of quarter sessions may by their order direct the expenses of and incident to such application to be paid as they may see fit.

(a) This is to be construed as referring only to churches and chapels of the Established Church, see Ormerod v. Chadwick (16 M. & W. 367), ex parte Warblington (18 Jur. 494).

(b) As to the meaning of the "applicant authority," see the commencement of the section.

Any order of a court of summary jurisdiction under this section shall be deemed to be an order from which an appeal lies to a court of quarter sessions. (c)

APPOINTMENT OF SURVEYORS IN CERTAIN PARISHES.

Removal of doubt as to Appointment of Surveyors in certain Parishes.

25. Whereas doubts have arisen whether a surveyor of highways can be appointed, in pursuance of the Highway Act, 1835, for a parish which does not maintain any highway (d) Be it therefore enacted, that it shall be lawful for the inhabitants in vestry assembled of any parish or place having a known legal boundary (notwithstanding that the inhabitants at large are not for the time being liable to maintain any highway or to contribute to any rate applicable to the maintenance of highways), or, on the neglect or refusal of such inhabitants, for the justices at a special sessions for the highways or in petty sessions assembled, at any time to exercise all the powers of the Highway Acts with respect to the election or appointment of a surveyor of highways with or without a salary for such parish or place; (e) and any surveyor so elected or

(c) With respect to appeals to quarter sessions under this Act, see s. 37, post, p. 218.

(a) The doubts here mentioned arose in a parish, not within an urban sanitary district or a highway district, in which all the highways were repairable by the Crown in pursuance of a Local Act of Parliament, with the exception of certain new streets which had been formed through an estate recently laid out for building. These new streets led to a railway station, and were much used by the public, but the owner of the estate could not proceed under s. 23 of the Highway Act, 1835, to render the streets repairable by the inhabitants at large, since there was no surveyor of highways for the parish; and as it was doubtful whether such surveyor could be appointed under the Act, unless there were highways repairable by the inhabitants of the parish, the present clause was suggested and drawn by the Editor of this work, and ultimately inserted in the Bill for the Act.

See 27 & 28 Vict. c, 101, s. 5, ante, p. 128, by which a place in which there are no highways repairable at the expense of the place, is to be deemed a 66 place separately maintaining its own highways "for the purposes of the Highway Acts ;" and see also the case of Reg. v. Inhabitants of Central Wingland, ante, p. 111.

(e) As to the election of surveyors of highways by the inhabitants

appointed shall have all the powers and duties (including the power of making, assessing, and levying of highway rates) of a surveyor under the Highway Acts.

BYELAWS BY COUNTY AUTHORITY.

Power of County Authority to make Byelaws.

26. A county authority (ƒ) may from time to time make, with respect to all or any main road (g) or other highways (h) within any highway area in their county, and when made (i) alter or repeal, byelaws (j) for all or any of the purposes following; that is to say,

in vestry assembled, see 5 & 6 Wm. IV., c. 50, s, 6, ante, p. 91; and as to their appointment by justices on the neglect or default of the inhabitants, see s. 11 of the same Act, ante, p. 92.

(f) That is, the justices of a county in general or quarter sessions assembled, see s. 38, post.

(g) As to the meaning of the term "main road," see ss. 13, 15, ante. (h) It will be noticed that byelaws may be made under this section with respect to any highways, that is, any roads or paths over which there is a public right of way, whether they are repairable by the inhabitants at large or not.

(2) For the definition of "highway area," see s. 14, and notes, ante, p. 202. Byelaws made under this section will not apply to any highway within the area of a borough having separate quarter sessions.

(j) These byelaws will not come into force, nor will any subsequent alteration or repeal of them be of any validity, until confirmed by the Local Government Board, under s. 35, post; and such confirmation will not be made unless a month's notice of the intention to apply for it has been advertised.

With reference to the above section, the following remarks are made in the circular letter of the Local Government Board of the 18th Sept. 1878: "It is obvious that great hardship and confusion would be occasioned in the case of the byelaws made for the regulation of waggons and other vehicles used for heavy traffic, unless the regulations adopted in each county are as far as practicable of a uniform character, and with a view of securing this result without causing unnecessary trouble or delay, the President suggests that the drafts of any byelaws which the county authority propose to make should be transmitted to the Board for comparison with those proposed by other authorities before the same are finally adopted by the county authority. In framing byelaws it is essential to bear in mind that they must be reasonable, and that the restrictions which they impose should not interfere oppressively with the reasonable rights or claims of those

(1.) For prohibiting or regulating the use of any waggon wain cart or carriage drawn by animal power (k) and having wheels of which the fellies or tires are not of such width in proportion to the weight carried by, or to the size of, or to the number of wheels of such waggon wain cart or carriage, as may be specified in such byelaws; and

(2.) For prohibiting or regulating the use of any waggon wain cart or other carriage drawn by animal power (k) not having the nails on its wheels countersunk in such manner as may be specified in such byelaws, or having on its wheels bars or other projections forbidden by such byelaws; and (3.) For prohibiting or regulating the locking of the wheel of any waggon wain cart or carriage drawn by animal power (k) when descending a hill, unless there is placed at the bottom of such wheel during the whole time of its being locked a skidpan slipper or shoe in such manner as to prevent the road from being destroyed or injured by the locking of such wheel; (1) and

(4.) For prohibiting or regulating the erection of gates across highways, and prohibiting gates opening outwards on highways; (m) and

whom they are intended to control. Moreover, byelaws are intended to supplement and not to supersede or vary the law; and in framing them a safe rule to follow is that a byelaw which merely repeats a statutory enactment is in fact surplusage, whilst one which is at variance either with an enactment or any recognised legal principle is altogether a nullity and consequently incapable of being enforced."

(k) It must be noticed that the byelaws made under clauses (1), (2), and (3), of this section can only apply to waggons, &c., drawn by animal power. Waggons, &c., drawn or propelled by other than animal power, are "locomotives," with respect to which the Locomotive Acts (post, pp. 224 to 256) contain regulations.

(1) Turnpike trustees may, under the General Turnpike Act, 3 Geo. IV., c. 126, s. 126, prohibit under a penalty the locking of the wheels of waggons, &c., on turnpike roads unless skidpans or slippers are used, and under s. 121 of the same Act it is an offence to use 66 any tipstick, joggle, or other instrument, for the purpose of retarding the descent of any cart or other carriage down any hill, in such manner as to destroy, injure, or disturb the surface of any turnpike road.”

(m) The Towns Police Clauses Act, 1847, by s. 71, which is in force in all urban sanitary districts, requires doors, gates, and bars opening