dred of Wonford, 4 M. & R. 130; 9 B. & C. 134, S. C. But see R. v. W. R. of Yorkshire, 3 Nev. & M. 426, 4 B. & Ad. 685, S. C., from which case it would seem that one day is to be reckoned inclusively, and the other exclusively; and see further, tit. " Time," Vol. VI.) To what sessions It should seem that the appeal must be made to the quarter sessions held next after the expiration of four weeks from the day the certificate appeal to be made. was lodged with the clerk of the peace, without reference to any notice which the appellant may have had of the intended alteration. (See R. v. Staffordshire, 3 East, 150; Shelf. 111). sessions. A footpath led from the hamlet of Wyke to a turnpike-road, which Proceedings at led, in one direction, to the town of Axminster, and in the other to various other places. It was proposed to divert a part of this footpath, by making it join the road at a point somewhat nearer to Axminster. Two justices certified (under the 5 & 6 Will. IV. c. 50, s. 85), for the diversion of this footpath, described as leading "from W. to A.," and stated in their certificate that the intended footpath was 66 nearer and more commodious" than the old. Against this diversion an appeal was tried at the quarter sessions, under section 88; and the grounds of appeal were, that, reference being had to the "various places with which the original footpath communicated, the new line was not nearer and more commodious than the old." It appeared that the proposed new line of footpath joined the turnpike-road at a point nearer to Axminster than the old, and was, consequently, nearer as between Wyke and Axminster only, but it was not so near as between Wyke and the other places mentioned ;-Held, that the jury were properly directed to construe the word "near" not as between W. and A., but as between the point at which the new and old lines of footpath diverged, and the point where the old line reached the road. (Reg. v. Shiles, 1 Gale & D. 304; 1 Ad. & E., N. S., 919, S. C.) In that case it was also held, that the jury having found that the new path was not nearer than the old, but that it was more commodious, the order for diverting the footpath could not be made, as it was necessary, under section 89, that the substituted line should be both "nearer" and more "commodious." Under the 108th section of the 5 & 6 Will. IV. c. 50, the quarter sessions may state a case for the opinion of the court of Queen's Bench, informing them how the appeal was left to the jury, and asking them their opinion whether it was correctly left. (Id.; see post, 613). The 90th section, as to costs, is more extensive in its operation than Costs of appeal. the 80th section of the repealed act 13 Geo. III. c. 78. Under that enactment, where notice of appeal against an order for diverting a footway was given, and the order was not filed with the clerk of the peace for inrolment, but the justices gave the appellant notice that they intended to abandon the order, it was held that the justices at the sessions had no power to award to the appellant the costs of preparing to try the appeal. (R. v. Wing, 4 B. & C. 114; 6 D. & R. 323, S. C.) The quarter sessions have no power, under the 90th section of the present act, to make a general order for the costs of an appeal, though they may refer the taxation of the amount to their officers, provided they, during the sessions, adopt his decision, and incorporate it in the order. (Sellicood v. Mount, 1 Gale & D. 358; 1 Ad. & E., N. S., 726, S. C.; ante, titles "Appeal" and "Costs, Vol. I.") The non-payment of costs awarded by an order of quarter sessions And where such a distress warrant did not recite any order of quarter 00 13. Stopping sessions for the payment of such costs, but was founded upon a subseup, diverting, quent conviction by two justices out of sessions, for non-payment of them; it was held, that the warrant was illegal, and that no property passed to the vendee of goods seized and sold under it. (Lock v. Sellwood, 1 Ad. & Ell., N. S., 736; Sellwood v. Mount, 1 Gale. & D. 358; 1 Ad. & E., N. S., 726, S. C.) &c. If no appeal be Inade, or, if dismissed, sessions to make order for stopping, &c., ways. The justices, out of sessions, cannot award costs under the 90th section. (Lock v. Sellwood, 1 Ad. & Ell., N. S., 737). 3. The Order for stopping up, &c. By 5 & 6 Will. IV. c. 50, s. 91, “If no such appeal be made (a), or being made shall be dismissed as aforesaid, then the justices at the said quarter sessions shall make an order to divert and turn and to stop up such highway, either entirely or subject as aforesaid, or to divert, tur, and stop up such old highway, and to purchase the ground and soil før such new highway, or to stop up such unnecessary highway, either etirely or subject as aforesaid, by such ways and means, and subject t such exceptions and conditions in all respects as in this act is mentioned in regard to highways to be widened; (see sect. 82, ante, 551); and the proceedings thereupon shall be binding and conclusive on all persons New way shall be whomsoever; and the new highways so to be appropriated and set oat shall be and for ever after continue a public highway to all intents and purposes whatsoever; but no old highway (except in the case of stopbe stopped in case ping up of such useless highway as herein is mentioned) shall be stopped until such new highway shall be completed and put into good condition and repair, and so certified by two justices of the peace upon view thereof, which certificate shall be returned to the clerk of the peace, and by him inrolled (see ante, 558) amongst the records of the court of quarter sessions next after such order as aforesaid shall have been made pursuant to the directions herein before contained." a public one. Old way when to of a diversion. Observations. Decisions under repealed acts. Prior to this enactment the order for stopping up or diverting a highway was to be made by two justices, and not by the quarter sessions. Under the repealed act 55 Geo. 3, c. 68, it was held that justices could not stop a highway out of their jurisdiction. (R. v. Milverton, 5 Ad. & Ell. 841). By stat. 2 & 3 Will. IV. c. 64, s. 36, sched. (O.) 30, Clifton is made a part of the parliamentary borough of Bristol, which is a county of itself. Except so far as that act operated, it was in the county of Glo cester-Held, that, after the passing of the Corporation Act, 5 & 6 Will. IV. c. 76, ss. 7, 8, the Gloucestershire justices could not make an order under the 55 Geo. III. c. 68, for diverting a footway in Clifton, their jurisdiction, in such cases, being transferred to the justices of Bristol. (R. v. Gloucester (Justices), 4 Ad. & Ell. 689). Where an order of justices, under the repealed act 55 Geo. III. c. 68, for diverting a public highway and substituting a new one for it, con tained also an order for stopping up the old highway, it was held bad, inasmuch as the magistrates had no power, under that act, to stop up the old road until the new one had been made. (R. v. Kent, 10 B. & 477; R. v. Justices of Middlesex, 5 Ad. & Ell. 626; 1 Nev. & Per. 92, S. C.; see the 91st sect. of the present act, supra). The 4th section of the 55 Geo. III. c. 68, required a similar certificate to the above, from two justices, as to the state of the new highway, be fore stopping up the old one. Where an order for diverting a highway had been made, and three of the justices by whom such order was signed (a) See Russell on Crimes, p. 344, where Mr. Greaves expresses a doubt whether the sessions might not inquire whether all the proceedings were regular, though there was no appeal, before they made an order under this section. See R. v. Justices of Worces tershire, 2 B. & A. 228, where it was held, under the repealed act, 35 Geo. II. c. 68, that the sessions had a right to inquire whether the order, though there was no appeal, was made by proper authority before they confirmed it. afterwards signed another order, by which, "after reciting that they It will be seen that this 91st section provides that the order of sessions and proceedings thereon shall be binding and conclusive on all persons whomsoever. And the 107th sect. (post, 611), expressly takes away the certiorari. The 108th section, however, (post, 611), enacts, that in the case of an appeal being determined by the quarter sessions, a special case may be granted for the opinion of the Court of Queen's Bench. (See the cases of R. v. Clerk, 1 B. & Cres. 21, 622; R. v. Townshend, 5 B. & Ald. 420; R. v. Kenyon, 6 B. & Cres. 640; 9 D. & R. 694, S. C.; R. v. Justices of Kent, 10 B. & Cres. 407, on the 55 Geo. 3, c. 68, s. 4, under which the order, though confirmed by the quarter sessions, might be removed by certiorari into Q. B.; and see R. v. Justices of Middlesex, 5 Ad. & E. 626). 13. Stopping up, diverting, &c. Soil of road, in when way stopped up. whom ves ed Order of sessions conclusive. pealed act for It seems, that if an order under the now repealed enactment of Order under re55 Geo. III. c. 68, s. 2, had been properly made and enrolled for stop-stopping highway ping a highway, it was not necessary to have made such order com- effectual, before pletely effectual, that an actual stoppage should have taken place. (R. v. Inhabitants of Milverton, 5 Ad. & E. 841). 4. Repair of Highways diverted, &c. By 5 & 6 Will. IV. c. 50, s. 92, “In every case in which a highway shall have been turned or diverted under the provisions of this act, the parish or other party which was liable to the repair of the old highway shall be liable to the repair of the new highway, without any reference whatever to its parochial locality." And see sect. 93, infra, as to the repair of roads, which persons are bound to repair ratione tenuræ, &c., after they have been diverted, &c. As to repairing a turnpike-road after it has been diverted, &c., see post, "Highways, Turnpike." 5. Provisions as to widening and diverting, &c. Highways, extended to Highways repairable ratione tenure. Sect. 93. "The powers and provisions in this act contained, with respect to the widening (see ante, 551), and enlarging, diverting, turning, or stopping up any highway, shall be applicable to all highways which any person, bodies politic or corporate, is or are bound to repair by reason of any grant, tenure, limitation, or appointment of any charitable gift, or otherwise howsoever; and that when such last-mentioned highways are so widened or enlarged, turned or diverted, the same shall and may, by an order of the justices at a special sessions for the highways, be placed under the control and care of the surveyor of parish in which such highways may be situate, and shall be from time to time thereafter repaired and kept in repair by the said parish; provided also, that the said highways so widened, enlarged, diverted, or turned, shall be viewed by two justices of the peace, who shall make report thereof to the justices at a special sessions for the highways; and such last-mentioned justices shall, by an order under their hands, fix the proportionate sum which shall be annually paid, or shall fix a cer the tain a their heirs, successors, or assigns, to the said surveyors of the parish, sum to be paid, by such person, bodies politic or corporate, his or and the order of the said last-mentioned justices shall be and continue in lieu of thereafter repairing the said part of the said old highway: biding on all such persons, bodies politic or corporate, their heirs, suc actual stoppage. 15. Width of cessors, or assigns; and in default of payment thereof, the said surveyor shall proceed for the recovery of the same in the manner as any penalties and forfeitures are recoverable under this act." [See as to the mode of recovering these, ss. 101, 103, post, Sect. XXII, p. 608]. cartways. Justices to hold purposes of this act. Surveyor's ac Before the passing of this enactment, it was decided that the power given by the repealed stat. 13 Geo. III. c. 78, ss. 16, 17, to two justices to order any highway to be widened, extended to roads repairable ratione tenure; and that upon disobedience to such order, the party might either be proceeded against summarily under that statute, or by an indictment as for an offence at common law. (R. v. Balme, Cowp. 648). XIV. Special Sessions for Purposes of Highways. By 5 & 6 Will. IV. c. 50, s. 45, “It shall and may be lawful for the special sessions for justices of the peace within their respective divisions, or any two or more of them, and they are hereby required, to hold not less than eight, r more than twelve special sessions in every year for executing the purposes of this act, the days of the holding thereof to be appointed at a special sessions to be held within fourteen days after the 20th day of March in every year: Provided always, that it shall not be necessary to cause sy notice to be given or sent to any justice acting and residing within such limits of the day or time of the holding thereof; and at the said special sessions held next after the 25th day of March in every year, the sur veyor of each of the parishes within their respective divisions shall rerify his accounts, (see ante, 542), and shall make a return in writing to such special sessions of the state, of all the roads, common highways, bridges, causeways, hedges, ditches, and watercourses appertaining thereto, and of all nuisances and encroachments, if any, made upon the several highways within the parish for which he was surveyor, as well as the extent of the different highways which the said parish is liable to repair, what part thereof has been repaired, and with what materials, at what expense, and what was the amount levied during the time he was surveyor of the said parish." See form of return, post, No. 16. counts, and state of roads, &c. See post," Highways, Turnpike," as to the justices, at a special sessions for the highways, on proof of the deficiency of the funds, &c., of a turnpike trust, ordering payment to such trust of a portion of the highway ne By statute 13 Geo. III. c. 78, s. 1, the justices of the peace were to hold a special sessions for the highways in the week next after the Michaelmas general quarter sessions; and by the 61st section of the same act they were enabled to hold any other special sessions for executing that act, causing notice to be given of the holding a special sessions to the justices residing within their limits by the high constable or other proper officer. Under that act some questions arose as to the sufficiency of the notice. (See R. v. Worcestershire, 2 B. & Ald. 228; R. v. Sur rey, 7 D. & R. 857; 5 B. & C. 241; R. v. Suffolk, 9 D. & R. 111; 6 B. & C. 110; R. v. — 1 Chitty, 164). By the present act it is provided that no such notice shall be necessary, (supra). In R. v. Justices of Leicester, (9 D. & R. 772; 7 B. & Cres. 6), it was decided that the 54 Geo. III. c. 84, as to justices acting in Michaelmas special sessions, was merely directory, and that the sessions might, notwithstanding, be held at another time. As to special sessions in general, see post, tit. “Sessions," Vol. V. XV. Width of Cartways. By 5 & 6 Will. IV. c. 50, s. 80, "The said surveyor shall and he is hereby required to make, support, and maintain, or cause to be made, supported, and maintained, every public cartway leading to any market town twenty feet wide at the least, and every public horseway eight feet wide at the least, and to support and maintain every public footway by the side of any carriageway or cartway three feet at the least, if the 17. Nuisances, ground between the fences including the same will admit thereof: Pro- &c., on. vided nevertheless, that nothing herein contained shall require any surSurveyor not to veyor to make or form any public footway without the consent of the make public footinhabitants in vestry assembled." The surveyor has no authority to pare away the bank of a fence by the side of a road under this clause. (Alston v. Scales, 2 Moore & Scott, 5; 9 Bing. 3, S. C.) It is frequently difficult to determine how far a highway extends in width; in such a case it would be a question for a jury. (See Brownlow v. Tomlinson, 1 M. & Gr. 484; R. v. Wright, 3 B. & Ad. 681, per Lord Tenterden, C. J.; R. v. The London and Birmingham Railway Company, 1 Car., N. & H., Railw. Cas., 317). See the provision in the turnpike act, 3 Geo. IV. c. 126, s. 125, post. XVI. What to be deemed the Centre of Wighway. By 5 & 6 Will. IV. c. 50, s. 63, "Where in this act any matter or thing is directed or forbidden to be done within a certain distance of the centre of the highway, that portion of ground shall be deemed and taken to be the highway which has been maintained by the surveyor as highway, and repaired with stones or other materials used in forming highways, for the six months immediately preceding; and the centre of the highway shall be the middle of such highway, where a line being drawn along the highway, or a point marked, an equal number of feet of highway which have been so maintained and repaired as aforesaid for twelve months before shall be found on each side of such line or mark." There was no similar enactment to this in the repealed acts relative to highways. The enactment is taken from the Turnpike Act, 3 Geo. IV. e. 126, s. 124, and which see, post. XVII. Nuisances, Annoyances, and Obstructions on Highways. Herein of nuisances, annoyances, and obstructions, &c., arising from 1. Trees and Hedges, &c., p. 566. 2. Ditches and Drains, &c., p. 568. 3. Encroachments on Highways, p. 569. 4. Pits, Steam-engines, Machines, Windmills, Kilns, Railways, &c., p. 569. 5. Gates, p. 571. 6. Carts and Carriages, Misbehaviour of Drivers, &c., 571. 7. Wheels and Weight of Carriages, &c., p. 573. 8. Surveyor leaving Things on Highways at Night, p. 574. 9. Riding, &c., on Footways, tethering Horses, injuring Road, damaging Direction-posts, &c., playing at Games, encamping on, making Fires, baiting Bulls, laying Rubbish, running Filth, wilfully obstructing Passage, &c., 574. 10. Injuries and Annoyances to Highways at Common Law, p. 575. 11. Securing Offenders, 583. 12. Power of Surveyor to remove Nuisances, p. 584. 13. Power of Surveyor to impound Cattle straying on Highways, p. 584. 14. Abatement of Nuisances by Common Law, p. 586. 15. Indictment and Punishment, &c., for Nuisances, p. 586. 16. Presentment for, p. 587. 17. Information for, p. 588. 18. Action for, p. 588. ways without consent of vestry. what shall be deemed the centre of the highway. Division of subject. |