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all established law upon this subject such reasoning is, I have endeavoured to shew in the commencement of this Treatise.

As to the mode of Proceeding to be adopted relative to the Diversion, &c. of Highways, subsequent to the Justices' Order.

I SHALL now briefly notice the various methods whereby the order of the justices for diverting or stopping up a highway, and the other concurrent acts, may be arraigned, and their validity questioned, either before or after confirmation by the Court of Quarter Sessions.

In the first place, -The validity of the proceedings had before the two justices, even after they have been confirmed at the Quarter Sessions, can be tried in an action of trespass, which may be brought by the owner of the soil against any one who shall attempt to use the old way. This was done in the case of De Ponthieu v. Pennyfeather (a), where the regularity of the order of the justices, the sufficiency of their certificate as to the new way being in good condition, and the enrolment of the whole proceedings, were discussed. And in another case (b), it was decided, that if the orders of justices for stopping up, &c. highways, are not properly made according to the directions of the Act; as where, under the 13 Geo. 3. c. 78, the justices stopped up a highway, substituting for it only another old highway, instead of a new highway, as required by that Act, such orders may be questioned

(a) 5 Taunt. 634. 1 Marsh.

(b) Welch v. Nash, 8 East, 394.

in an action of trespass, notwithstanding they were confirmed on appeal to the Quarter Sessions. Again, in the case of Davidson v. Gill (a), the whole proceedings were set aside for a material informality, in an action of trespass, although they had been confirmed at the Quarter Sessions.

Secondly. It sometimes happens, that the Court of Quarter Sessions refuse to confirm the order of the justices, although no appeal be made to them against the same, if they perceive any irregularity in the proceeding. That they have this discretionary power with regard to the confirmation of the order, and that they are bound to exercise it, is decided in the case of Rex v. The Justices of Worcestershire (b). In case of such refusal, the proper course to be pursued in order to enforce the Court of Quarter Sessions to confirm the proceedings of the two justices, and thus to bring before a superior tribunal the review of the decision of that Court, is by motion in the Court of King's Bench for a mandamus, commanding the justices of the county to confirm the order made by the two justices for diverting and stopping up the road. This was the mode pursued in the above case of Rex v. The Justices of Worcestershire, and also in the case of Rex v. The Justices of Surrey (c), and in the case of Rex v. The Justices of Suffolk (d).

Thirdly. If an appeal be actually lodged against the order of the two justices, but the Court of Quarter Sessions refuse to hear such appeal, then the party appealing must proceed by motion to the Court of King's Bench

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for a mandamus, commanding the justices of the county at the next General Quarter Sessions of the Peace to receive the said appeal and cause continuances to be entered, and to hear and determine the merits of the appeal. Such was the method adopted in the case of Rex v. The Justices of Staffordshire (a), in the case of Rex v. The Justices of Pembrokeshire (b), and in Rex v. The Justices of Staffordshire (c), and in Rex v. The Justices of Essex (d), and in another case of Rex v. The Justices of Essex (e), in which the proceeding for diverting the way was by writ of ad quod damnum, and in the case of Rex v. The Justices of Hertfordshire (f).

Lastly. When the Court of Quarter Sessions, having received the appeal, have heard and determined upon its merits, and either confirmed or quashed the order of the justices, a review of the decision below can only be had by removing the whole proceedings into the superior Court by writ of certiorari, accompanied by a motion to quash the order of the Court of Quarter Sessions. This was the course adopted in the case of Rex v. Kirk (g), and also in the cases of Rex v. Townsend (h), Rex v. Sheppard (i), and Rex v. Kenyon (k).

SECONDLY: The enactments relating to the Diversion and Extinction of Turnpike Roads.

Power to alter and improve turnpike roads. -By Stat. 9 Geo. 4. c. 77. s. 9, The trustees of any turnpike road

(a) 7 T. R. 81. (b) 2 East, 213.

(f) 3 M. & S. 459.

(g) 1 B. & C. 21.

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(c) 3 East, 151.

(d) 5 B. & C. 431.

are authorized and empowered (subject to the restrictions in the said recited Acts (a) and this Act contained), to make, divert, shorten, vary, alter, and improve the course or path of any of the several and respective roads under their care and management, or of any part or parts thereof; and to divert, shorten, vary, alter, and improve the course or path of any of the said several and respective roads, or any part or parts thereof, upon, in, through, or over any private lands, grounds, or hereditaments, making or tendering satisfaction to the owners thereof and persons interested therein, for the same, or for any damage they may sustain thereby; and also upon, in, over, or through any common or waste lands, without making any satisfaction for such common or waste lands, in such manner as they shall think proper; so that any such road shall not execed sixty feet in width, together with such footpath, causeways, bridges, arches, banks, culverts, ditches, drains, and fences on the line of such road, as they shall think necessary or expedient: And it shall also be lawful for such trustees, and for their surveyors or surveyor and workmen, with or without carts or carriages, from time to time to enter upon the lands and grounds or hereditaments through which or whereupon such road, footpath, causeways, bridges, arches, banks, culverts, ditches, drains, and fences is or are intended to be made or pass, and also upon any adjoining lands or grounds, to stake out the same in such manner as such trustees shall think necessary or expedient, without being deemed a trespasser or trespassers, and without being subject or liable to any fine, penalty, or punishment for entering or continuing upon such lands or premises respectively, for any of the pur

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poses of the Act, for making or maintaining any such turnpike road:-And if any person shall pull up, remove, or destroy any stakes or other marks used for the purposes aforesaid, every person so offending shall forfeit and pay for every such offence any sum not exceeding £5.

As in other instances, so also in the case of the diversion, &c. of turnpike roads, the trustees are not liable to an action for any consequential injury, resulting from an act which they are authorized to do, unless they are guilty of careless and negligent, or wanton and oppressive conduct.

Thus in the case of Boulton v. Crowther (a), which arose under the former Act of 3 Geo. 4. c. 126, (the provision in which is similar to the above clause, as far as is material to this case), it appeared that the road, adjoining to the plaintiff's pleasure ground, had been lowered in one part and raised in another, by the order of the trustees; so that the entrance gates to his premises situate next those parts of the road could not be used by persons coming to his premises with carts and other carriages, and it also appeared that part of the materials of the road had fallen into the plaintiff's premises, and damaged his hedge and plantations. Some evidence was given to shew that the injury to the plaintiff accrued partly from the work having been done carelessly and negligently, but it was contended by the plaintiff's counsel, that the plaintiff was entitled to recover, whether the work was done properly or not. It was said, that

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