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bringing the same, or be brought or laid in any other place than as before mentioned, then the jury shall find for the defendant or defendants; or if the plaintiff or plaintiffs shall become nonsuit or discontinue his, her, or their action, after the defendant or defendants have appeared, or if upon demurrer, judgment sual ve given against the plaintiff or plaintiffs, the defentaur or defendants shall and may recover treble coste, and have the like remedy for the recovery thereof, at any defentaur or defendants hath or have in any other cases w

In the case of Roberts v. Read and others . Lay peared that the surveyors of the highwaye, it is cution of their office, had undermined a wal a to the highway, but which did not fall till more tasat three months afterwards; and the Court of K. E. seat that the surveyors were subject to an action of the case for the consequential injury, if brought within tur months after the falling of the wall.

And in Sutton v. Clarke (b), it was observeri C. J. that the case of Roberts v. Read, let the loose from the very great difficulty imposer (which, it might be, were very absurd and mur making the act done, and not, as in the bur c. 16, the cause of the action, the criterior The Court of K. B. had got over that difere tained the justice of the case; he shout difficulty in coming to that decision, but t ought not to recede from it, because it fa ment of justice. But in this case fie refrained from expressing any opiniur

portant question.

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In the case of Boothby v. Morton (a), however, where the surveyor to certain drainage commissioners had cut a ditch of unusual width and depth, and thrown the soil, &c. on the land of the plaintiff, whereby his crop of cole-seed was spoiled, and some of his sheep drowned; and it appeared that the ditch was dug about a year before the commencement of the action, but the sheep were drowned and the crop spoiled within six months of such commencement (which was the period of limitation fixed by the Act): It was held that the action ought to have been brought within six months from the digging of the ditch. It is difficult to reconcile this decision with that in the case of Roberts v. Read.

I shall conclude with the following observations as to the nature of this kind of legislative protection, which are made by Mr. Justice Bayley in the case of Cook v. Leonard (b): He says, "Where a Statute gives protection to persons acting in execution or in pursuance of it, all persons acting under its provisions are entitled to that protection, although they exceed their authority by so doing. There must, however, be some limits to that rule, and it seems to me that there are cases which warrant this distinction. If an officer does any act, part of which is and part of which is not authorized by the Statute; or if a magistrate acts in a case which his general character authorizes him to do, the mere excess of authority in either case does not deprive the officer or magistrate of that protection which is conferred upon those who act in execution of it; but where there is a total absence of authority to do any part of that which has been done, the party doing the act is not entitled to that protection."

SECTION III.

As to nuisances and annoyances under the Turnpike Acts.

FIRST: What nuisances and annoyances are prohibited by the Turnpike Acts.

Using railway-carts.-By Stat. 4 Geo. 4. c. 95. s. 16, A penalty is infficted for using carriages, made for railways or tram roads, upon a turnpike road (a).

Making encroachments upon or working injury to the road, or causing annoyances to the passengers, &c.-By Stat. 3 Geo. 4. c. 126. s. 118, If any person shall make, or cause to be made, any dwelling-house or other building, or any hedge or other fence on or at the sides of any turnpike road, in such manner as to reduce the breadth or confine the limits thereof, or shall fill up or obstruct any ditch at the side thereof; or shall make or cause to be made any dwelling-house or other building, or any hedge or other fence on any common or waste land on the side or sides of any turnpike road, within the distance of thirty feet, if within three miles of any markettown, or if beyond that distance, within twenty-five feet from the middle or centre thereof (b);-or shall make any drain, gutter, sink, or water-course across, or otherwise break up or injure the surface of any turnpike road, or of any part thereof; or shall plough, harrow, or break up the soil of any land, or ground, or in ploughing or harrowing the adjacent lands, shall turn his or their plough or harrow in or upon any land or ground within the distances aforesaid from the middle or centre of any turnpike road made or to be made, or make any other encroachment on any turnpike road within the distances aforesaid from the middle or centre thereof;-every person so offending shall forfeit, for every such offence, 40s. to such person as shall make information of the same; and it shall be lawful for the trustees who have the care of any such road, to cause such dwelling-house or other building, hedge, ditch or fence, drain, sink, water-course, gutter, or other encroachment to be taken down or filled up, or where any ditch shall be filled up or obstructed, to be opened and cleansed, at the expence of the person or persons to whom the same shall belong:-And it shall be lawful for any one or more justice or justices of the peace of the county where such offence shall be committed, upon proof thereof to him or them made upon oath, to levy as well the expences of taking down or filling up, or cleansing such dwelling-house or other building, hedges, ditches, drains, or other encroachments as aforesaid, as the several and respective penalties hereby imposed, by distress and sale of the offender's goods and chattels, rendering the overplus (if any) to the owner on demand.

(a) See this clause, ante, page

312.

what is considered the centre of the road.

By Stat. 3 Geo. 4. c. 126. s. 119, A penalty of any sum not exceeding £10, is imposed upon persons damaging mile-stones, guide-posts, or boundary stones (a).

By Stat. 4 Geo. 4. c. 95. s. 72, If any person or persons whomsoever shall wilfully pull down, break, injure, or damage any table of tolls put up or fixed at any tollgate or bar on any part of any turnpike road, or wilfully or designedly deface or obliterate any of the inscriptions, letters, figures, or marks thereon; or if any person or persons shall wilfully pull up, throw down, break, injure, or damage any posts, rails, or fences placed or to be placed or put up by order of any trustees of any turnpike road, or their surveyor or surveyors, either by the side or sides of such road, or at or near to any pit or quarry which shall be used, opened, or made, for the getting of stones, gravel, or other materials for the purposes thereof, in order to prevent accidents; or if any person or persons shall wilfully cause any damage or injury to be done to any bridge, arch, wall, or other building or erection to be set up or erected by virtue of any Act on any part of any turnpike road, or by the side or sides thereof; or if any person or persons shall cast or throw any earth, or rubbish, or other matter or thing, into any drain, ditch, culvert, tunnel, or other water-course made by virtue of any Act, so as to obstruct the water from running or draining off any turnpike road; or if any person or persons shall, without being thereto authorized by the surveyor or surveyors for the time being acting under any Act, shovel up, scrape, gather, or carry away any stones, gravel, sand, or other materials, slutch, dirt, mire, drift, or soil, from off any footpath or causeway, or any other part of such road; or if any person shall in any manner wilfully prevent any other person or persons from passing him or her, or any carriage under his, her, or their care, upon any such road; or if any such person shall dig, make, or use any pit or pits for sawing of timber or wood within thirty feet of the centre of any such turnpike road, unless where inclosed by a fence from any such road;-every person offending in any of the cases aforesaid shall forfeit and pay a sum not exceeding 40s. for every such offence;

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