and made part of the road in such manner as the said trustees or commissioners shall direct, and shall be repaired and kept in repair by such trustees or commissioners by the same ways and means as any other part of the road under their management is or ought to be kept in repair; and all parties and persons whomsoever shall be divested of all right and title to such lands, &c.; and after such new road shall be completed, the lands and grounds constituting any former roads or road, or so much and such part or parts thereof as in the judg ment of the said trustees or commissioners may thereby become useless or unnecessary, shall and may be stopped up and discontinued as public highways (unless leading over some moor, heath, common, uncultivated land or waste ground, or to some church, mill, village, town or place, lands or tenements to which such said new road or roads doth not or do not immediately lead, and which may therefore be deemed proper to be kept open either as a public or private way or ways for the use of any inhabitant at large, or any individual or individuals) and shall be vested in, and shall and may be sold and conveyed by the said trustees or commissioners in the manner herein mentioned, for the best price that can be gotten for the same, and the money arising by such sale shall be applied for the purposes of the act for repairing and maintaining such turnpike road, and all convey. ances being executed by the said

trustees or commissioners and enrolled in the office of the clerk of the peace for the county, city or place wherein such road shall be situate shall be good and effectual in the law to all intents and purposes whatsoever; or it shall be lawful for the said trustees or commissioners instead of making such sale as aforesaid, to give up to the owners or proprietors of any adjoining lands, tenements or hereditaments, whose building, land or ground shall be had or taken for the purposes of this act, any part or parts of the present or old roads, in lieu of and in exchange for the same, in such way and manner as such trustees or commissioners and owners or proprietors shall agree upon and think fit. Upon the face of this order it appears, that the new road was to be given in compensa→ tion for the old road. This order comes within the last clause of the 86th section. The provisions of section 88 are most important. "That when any turnpike road shall be diverted or turned, and the new road shall be made and completed, such new road shall be in lieu of the old road, and shall be subject to all the provi sions and regulations in any act of parliament contained or otherwise, to which the old road was subject, and shall be deemed and taken to be a common highway, and shall be repaired and maintained as such; and the old road shall be stopped up, and the land and soil thereof shall be sold by the trustees or commissioners to some person or per

sons whose lands adjoin thereto, as herein after mentioned with regard to pieces of ground not wanted; but if such old road shall lead to any lands, house or place, which cannot in the opinion of the said trustees or commissioners be conveniently accommodated with a passage from such new road, which they are hereby authorised to order and lay out if they find it necessary, then and in such case the old road shall be sold, but subject to the right of way and passage to such lands, house or place respectively, according to the ancient usage in that respect; and the money arising from such sale in either of the said cases shall be applied towards the purchase of the land where such new road shall be made, or in the same manner as the tolls arising on such road, as the trustees or commissioners thereof shall think fit. And upon the completion of any contract whereby any part of the old road shall be given in payment for the value of the ground taken for the new road, or upon payment of the price of any part of the old road, the soil of such old road shall become vested in the purchaser thereof and his heirs, but all mines, minerals and fossils lying under the same, shall continue the property of the person or persons who would from time to time have been entitled to the same if such old road had continued." As soon, therefore, as the new road was made and completed in lieu of the old road, and the public had acquired (a) Ante, i. 7; 7 B. &

the same rights upon the new road as they had enjoyed upon the old, the property in the old road vested in the plaintiffs. Not a syllable is to be found in this statute requiring a conveyance to the trustees in such a case, though for greater security a conveyance was in fact afterwards executed, and the trespasses were committed even after that conveyance. The form of the order used on this occasion seems to have been taken from De Beauvoir v. Welch(a), in which no objection was taken to the form of the order. Here the order substantially complies with all that the statute requires. The conveyance may be coupled with the order, so as to give a title to the new road. [Bayley, J. Is there any clause of appeal?] An appeal is given to the next quarter sessions by the 4th of Geo. 4, c. 95, s. 87. [Lord Tenterden, C. J. Parties are not bound to appeal against an order which is bad on the face of it.]

Barnewall, contrà. If the order was not originally good, the defendant would be justified in using the old road. This order was bad on the face of it. The authority of the trustees depended upon a condition which has not been performed. It is not denied on the other side that the public must have some road. It is said that the 88th section vests the soil in the trustees, but that is only so where the road is properly diverted. The new road must be completed so as to give the public a beneficial use of it. C. 266; 1 M. & R. 81.

The 84th section, after enumerating persons who, without a special enactment, would be incapable, authorises them to sell and convey, that is, to convey where there is an agreement. Where persons refuse to treat, the ascertainment is to be before a jury, which is made equivalent to a conveyance. The second case is, where the parties do not chuse to come in, or refuse their purchase money, after the new road is completed, and refers to the road which is previously to be conveyed to trustees, either by actual conveyance or by the verdict of a jury. Upon the face of the order the trustees do not shew how the road is become unnecessary, yet the power to stop up is only given in certain cases. It ought to appear on the face of the order that the old road has become unnecessary. It does not appear that the road was diverted or turned. That section does not, therefore, apply to this case. The trustees possess a power of stopping up only where the same right is given to the public. It was not the intention of the legislature by that clause alone to transfer the property without an actual conveyance. [Bayley, J. May not the public have a right of passage without the soil being conveyed?] It does not appear upon the face of the order that the new road had ever been used. It was perfectly competent to the owner of the soil of the new road to revoke the authority and exclude the public. A dedication to the public is

not to be presumed. The owner would not be bound, inasmuch as there was no agreement in writing to comply with the statute of frauds.

Brodrick, in reply. The clause requiring a conveyance does not apply. The case is where the party has a complete title. It would be totally useless in such cases to execute a conveyance. The clause must be governed by the other parts of the statute. It is admitted that no conveyance is necessary where the value is assessed by a jury. The mere conveyance of the soil to the trustees would not give the right of passage.

Lord TENTERDEN, C. J.-The question is whether a new road can be effectually dedicated to the public by a person who is sui juris, without an actual conveyance. It is perfectly clear, that if such a party agree with the trustees, and the money is paid, no conveyance is necessary. When parties neglect or refuse to treat, there need be no conveyance. A conveyance is required where parties are under some legal incapacity. And it is reasonable that in such a case a conveyance should be executed, in order that there may be evidence against the cestui que trust. When a person sui juris sells, I cannot see why this should be necessary, when he manifests his consent by permitting the road to be made over his land. The other judges concurred. Postea to the plaintiff.