and upon a true copy of the conviction whereby such forfeiture or penalty was incurred, and of the order for the payment of such costs and charges, produced and proved by a credible witness upon oath, by warrant under his hand and seal, to cause the penalty or forfeiture mentioned in such conviction, and the costs and charges mentioned in such order, or so much thereof as shall not have been paid, to be levied by distress and sale of the goods and chattels of such offender or offenders, or person or persons, liable or ordered to pay the same respectively, as aforesaid; and if no sufficient distress can be had, to commit such offender or offenders, or person or persons, liable as aforesaid, to the common gaol, or house of correction, of such limit, for the time and in manner aforesaid."

Sect. 73, provides "Nevertheless, that no warrant of distress, unless otherwise directed by this act, shall be issued for levying any penalty or forfeiture, costs or charges, until six days after the offender shall have been convicted, and an order made and served upon him or her for payment thereof."

Sect. 74, provides and enacts, "That every prosecutor or informer may, at his election, sue for, and recover any forfeiture or penalty imposed by this act, which shall amount to the sum of 40s. or upwards, (the manner of recovery thereof not being particularly directed by this act), either in the manner hereinbefore directed, or by action at law, to be brought by such informer or prosecutor in any of his Majesty's Courts of record, in manner following; (that is to say), where any person shall be liable to any such pecuniary penalty, it shall and may be lawful to sue for and recover the same by action of debt, in which it shall be sufficient to declare, that the defendant is indebted to the plaintiff in the sum of being forfeited by an act, passed in the thirteenth year of the reign of his present Majesty, intituled, An act to explain, amend, and reduce into one act of Parliament, the statutes now in being for the amendment and preservation of the public highways within that part of Great Britain called England, and for other purposes; and the plaintiff, if he recovers in any such actions, shall have double costs.'

Sect. 75, provides, "That there shall not be more than one recovery for the same offence; and that ten days' notice, in writing, be given to the party offending previous to the commencement of such action; and that the same be brought and commenced within one calendar month after the offence for which such action is brought shall have been committed.”

As to witnesses, see ante, 77. The conviction must be on confession, or the oath of one witness, or view of the justice, s. 76, ante, 77. The justice may administer the oath, s. 77, ante, 77.

As to irregularity in proceedings, see ante, 77.

XXI. Certiorari.

Indictments or Presentments]—If an indictment be preferred before the grand jury, either at the assizes or quarter sessions-if before the former, it will be tried at the following assizes, in the crown court; if before the latter, at the following quarter sessions: but, in either case, the indictment may be removed, by certiorari, into the Court of King's Bench before trial. The case is then tried on the civil side of the Court, and judgment is given in the Court above.

But there are certain restrictions of the removal of an indictment before judgment; for it is provided by 13 Geo. III. c. 78, s. 24, "That no such presentment, nor any indictment for any such default or offence, shall be removed by certiorari, or otherwise, out of such jurisdiction till such indictment or presentment be traversed, and judgment thereupon given; except where the duty or obligation of repairing the said highways, causeways, or bridges, may come in question." See the other part of the section, ante, 73.

This provision relates only to presentments and indictments for any

default or offence committed and done contrary to the act, 13 Geo. III. CERTIORARI c. 78.

This provision also is confined to an indictment preferred at the general or quarter sessions, for an offence against the act, and does not, it seems, extend to indictments preferred before the grand jury at the assizes. R. v. Sidney, 3 Burr. 1462. But the Court exercise a discretion on the application of a defendant, and will not grant it unless on special grounds. See such grounds, 2 Hawk. by Curwood, 402; and Certiorari, Vol. I.

Nor does this restriction extend to the crown or the prosecutor. R. v. Bodenham, Cowp. 78; R. v. Farwell, 1 East, 305; 2 Stra. 1209.

The writ may be granted, though the parish plead not guilty only, for the obligation to repair may come in question under that issue. R. v. Taunton, St. Mary, 3 M. & S. 465.

It will not be granted after trial and judgment at the sessions. R. v. Machynlleth, 1 B. & C. 142; 2 D. & R. 209; 3 D. & R. 388, S. C. In that case

the only remedy to reverse the judgment is by writ of error.

Other Proceedings]-Besides the above provisions, the 80th section of Other proceedings. the 13 Geo. III. c. 78, enacts, that no proceedings had in pursuance of

this act, shall be quashed for want of form, or removed by certiorari, or any other process, into any of his Majesty's Courts of record at Westminster. See the provision, ante, 77.

This clause, however, does not apply to proceedings for diverting or stopping up ways, inasmuch as the authority of justices arises by virtue of the 55 Geo. III. c. 68; and in this latter act the certiorari is not taken away. R. v. Wing, 4 B. & C. 184. Nor does it prevent the removal of an order purporting to be made under the authority of the 13 Geo. III. c. 78, but where in fact the justices had no jurisdiction, such as an order made by the petty sessions for the allowance of surveyor's accounts, which had not been previously submitted to a single justice; R. v. Justices of Somersetshire, 5 B. & C. 816; 6 D. & R. 469, S. C. See also ante, 58; R. v. Justices of Yorkshire, 6 B. & C. 152. But if in fact the proceeding be under the authority of the act, though informal, and a certiorari has issued, it may be quashed quia improvide, &c.; as where, on a return, the order was stated to be, that, "by virtue of 13 Geo. III. c. 78, and other statutes relating to highways, &c.," this was considered manifestly to be a proceeding within the statute, and the writ was quashed. R. v. Casson, 3 D. & R. 36. As to Certiorari in general, see Certiorari, Vol. I.

XXII. Appeal.

A PARTY aggrieved by any thing done in the execution of 13 Geo. III. c. 78, where no other remedy is given, or by any proceeding under 55 Geo. III. c. 68, may, by virtue of the 80th sect. of the former, and 3rd sect. of the latter statute, appeal.

By stat. 13 Geo. III. c. 78, s. 80, "If any person shall think himself or herself aggrieved by any thing done by any justice or justices of the peace, or other person, in the execution of any of the powers given by this act, and for which no particular method of relief hath been already appointed, every such person may appeal to the justices of the peace, at any general quarter sessions of the peace to be held for the limit wherein the cause of such complaint shall arise, such appellant giving, or causing to be given, notice in writing (a) of his or her intention to bring such appeal, and of the matter thereof, to the justice, or other person or persons against whom such complaint shall be made, within six days after the cause of such complaint arose, and within four days after such notice, entering into recognizance before some justice of the peace within such limit, with one sufficient surety, conditioned to try such appeal at, and

(a) Form (No. 85), post.

In general.

13 Geo. 3, c. 78. Appeal may be sesssions by the person aggrieved by any thing done in the execution of this act.

made to quarter

APPEAL.

13 Geo. 3, c. 78.

abide the order of, and pay such costs as shall be awarded by the justices, at such quarter session; and every justice of the peace, and other person having received notice of such appeal as aforesaid, shall return all proceedings whatsoever had before them respectively touching the matter of such appeal to the said justices, at their general quarter sessions as aforesaid, on pain of forfeiting 57. for every such neglect; and the said justices at such sessions, upon due proof of such notice being given as aforesaid, and of the entering into such recognizance, shall hear and finally determine the causes and matters of such appeal in a summary way, and award such costs to the parties appealing or appealed against, as they the said justices shall think proper, to be levied and recovered as hereinbefore directed; and the determination of such quarter session shall be final and conclusive, to No proceedings to all intents and purposes; and that no proceedings to be had or taken in be quashed for want of form, or removed by certiorari.

Appeals against stopping up or di

verting highways.

Decisions.

pursuance of this act shall be quashed or vacated for want of form, or removed by certiorari, or any other writ or process whatsoever, (except as hereinbefore mentioned), into any of his Majesty's Courts of record at Westminster, any law or statute to the contrary notwithstanding: provided that no such appeal shall be made against any conviction for any penalty or forfeiture incurred by virtue of this act, unless the person convicted shall, at the time of such conviction, if he or she shall be then present, if not, within six days after, give notice of his or her intention to appeal, and at the same time enter into recognizance with sufficient sureties to pay such penalty or forfeiture, in case such conviction shall be affirmed upon such appeal; and upon his or her giving such security, the further proceeding for such penalty or forfeiture shall be suspended until such appeal shall be heard and determined."

See the 3rd section of the 56 Geo. III. c. 68, ante, 43, as to appeals against the proceedings of justices in stopping up or diverting highways, and the notes thereon, ante, 46.

Decisions]-The privilege of appeal is not given to all persons, but merely to the party aggrieved, to those only who have sustained some special and peculiar injury, and not to any captious persons whatsoever. The notice must state, that the appellant is aggrieved. R. v. Justices of Essex, 5 B. & C. 431; 7 D. & R. 658, S. C. In that case the notice stated only that the appellant was a rated inhabitant of the parish in which the way was stopped up, and it was held to be insufficient. So, in another case, where a way was stopped up, leading from P. to C., a notice stating, "we, inhabitants of P. &c." was deemed insufficient. R. v. Justices of Yorkshire, 7 B. & C.678; and see ante, 47. As to who may be considered a party aggrieved under 5 W. & M. c. 11, s. 3, see ante, 72.

Every parishioner is aggrieved by the appointment of a bad surveyor, and may appeal against the appointment; and if an inhabitant of a township claims an exemption from the repair of all roads not situated within the township, the proper, and it seems the only remedy, is to appeal against the appointment of a surveyor for the whole parish. R. v. Justices of St. Alban's, 3 B. & C. 698; 5 D. & R. 538, S. C.

The right of appeal under the 13 Geo. III. c. 78, s. 80, is confined to those cases where no other remedy is provided; therefore, it has been holden that no appeal lies against the allowance of the surveyor's accounts, for in this case relief is provided by the 48th section. The books of accounts, after having been examined by the inhabitants at a vestry, are to be taken to one justice, who may allow such accounts, if he please; but if he has any difficulty, he may refer them to the petty sessions, where they are to be examined and allowed; " and when the said accounts shall be so settled and allowed," that is, either by the single justice, or by the petty sessions, they are to be kept for the use of the parish. This mode of allowing the accounts was prescribed for the purpose of preventing any appeal to the quarter sessions. It is immaterial whether the accounts are first taken to one magistrate, and afterwards to the petty sessions; or whether they are taken at once to the petty sessions. In neither case does an appeal lie

to the quarter sessions. R. v. Justices of West Riding of Yorkshire, 5 T. R. 629, and R. v. W. Mitchell, 1b. 701; and further, ante, 58, as to an appeal against surveyor's accounts.

The statute gives a form of notice of appeal. See Form (No. 85), post. The notice must be given within six days after the cause of complaint arises; where an order was made to do statute duty on a turnpike road, and some days after served on the surveyor, it was held, that the service, and not the making of the order, was the cause of complaint, and that notice within six days of such service was sufficient. R. v. Justices of Lancashire, 8 B. & C. 593. So also the execution, and not the signing of a warrant of distress, is the cause of complaint. R. v. Justices of Devonshire, 1 M. & S. 411. But this does not apply to an order for stopping up or diverting a way, as to which see ante, 43, 46-7.

XXIII. Costs.

APPEAL.

We have already noticed several provisions in the highway acts relating Costs.

to costs.

If a presentment is made by a justice under the 13 Geo. III. c. 78, s. 24, Presentment. the sessions may order the expenses of prosecutions to be paid by the

parish &c., presented, out of the general rates. See ante, 73.

The 64th section of the same act empowers the Court to award costs to Indictment. the prosecutor or defendant, under circumstances, in the case of an indictment or presentment for not repairing highways. See the section and notes, ante, 72.

The 65th section provides as to how the expenses for prosecutions agreed At a parish meeton at a vestry meeting, are to be paid. See ante, 48, as to such meetings.

Inhabitants who sign a resolution, ordering the parish surveyor to defend an indictment, are not personally responsible for the payment of the attorney employed by the surveyor. Sprott v. Powell, 3 Bingh. 478. Secus, if the proceedings are not under the act. Holmer v. Williamson, 6 M. & S.

158.

ing.

Upon appeal, costs are regulated by the 80th sect. of 13 Geo. III. c. 78, On appeal. ante, 81; and no costs can be awarded upon an appeal against an order for diverting and stopping up a highway, under the 55 Geo. III. c. 68, for that act is silent as to costs. In R. v. Wing, 4 B. & C. 184, ante, 47, it was contended, on an appeal against such an order, that costs might be given under the 80th sect. of 13 Geo. III. c. 78; but, as the appellant had not complied with the regulations in the appeal clause of that act, even if the argument were just, it was held he was not entitled to his costs. It was also ruled in that case, that no costs could be given for preparing for an appeal, where the order was abandoned. See as to appeal, ante, 81.

As to treble costs on action brought for any thing done in pursuance of the highway act, see post, 84.

As to Costs in General, see Costs, Vol. I.

XXIV. Actions for Acts done under Pighway Act.

By the 13 Geo. III. c. 78, s. 78, it is enacted, "That where any distress shall be made for any sum or sums of money to be levied by virtue of this act, the distress itself shall not be deemed unlawful, nor the party or parties making the same be deemed a trespasser or trespassers, on account of any default or want of form in any proceedings relating thereto, nor shall the party or parties distraining be deemed a trespasser or trespassers ab initio, on account of any irregularity which shall be afterwards done by the party or parties distraining; but the person or persons aggrieved by such irregularity may recover full satisfaction for the special damage in an action on the case.'

13 Geo. 3, c. 78. Irregularity in the proceedings.

ACTIONS.

13 Geo. 3, c. 78.

Sect. 79, provides "That no plaintiff or plaintiffs shall recover in any action for any irregularity, trespass, or wrongful proceedings, if tender Tender of amends. of sufficient amends shall be made by or on the behalf of the party or parties who shall have committed, or caused to be committed, any such irregularity, trespass, or wrongful proceedings before such action brought; and in case no such tender shall have been made, it shall and may be lawful for the defendant in any such action, by leave of the Court where such action shall depend, at any time before issue joined, to pay into Court such sum of money as he or they shall see fit, whereupon such proceedings or orders and judgments shall be had, made, and given, in and by such Court, as in other actions where the defendant is allowed to pay money into Court."

Limitation of actions.

General issue.

Treble costs.

The surveyors are only protected when acting bona fide, and the tender of amends paid by them cannot be questioned in an action at law. Boyfield v. Porter, 13 East, 200. See Justices, Vol. III.

By sect. 81, it is enacted, "That if any action or suit shall be commenced against any person or persons for any thing done or acted in pursuance of this act, then, and in every such case, such action or suit shall be commenced or prosecuted within three calendar months after the fact committed, and not afterwards; and the same, and every such action or suit, shall be brought within the county where the fact was committed, and not elsewhere; and the defendant or defendants in every such action or suit shall and may plead the general issue, and give this act, and the special matter in evidence at any trial to be had thereupon, and that the same was done in pursuance, and by the authority of this present act; and if the same shall appear to have been so done, or if any such action or suit shall be brought after the time limited for bringing the same, or be brought or laid in any other place than as afore 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 shall have appeared, or if, upon demurrer, judgment shall be given against the plaintiff or plaintiffs, the defendant or defendants shall and may recover treble costs, and have the like remedy for recovery thereof, as any defendant or defendants hath or have in any other cases by law."

The omission to do any act is a "thing done" within the meaning of the act. Therefore, where surveyors undermined a wall which fell eight months afterwards, an action which was brought within three months after the falling was held to be within time. Roberts v. Read, 16 East, 215; see also Gillon v. Bodington, 1 R. & M. C. N. P. 161; Sutton v. Clarke, 6 Taunt. 29.

Where the plaintiff's walls were cracked by an act done by defendants, and continued so cracked, but without doing further damage, it was held that the time limited for bringing the action began to run from the time when the crack was made. Lloyd v. Wigney, 6 Bingh. 489.

The venue is local. 5 T. R. 16.

54 Geo. 3, c. 109. Not to alter former acts but where expressly amended.

XXV. How far Stat. 54 Geo. 3, c. 109, alters former Acts.

By the 54 Geo. III. c. 109, s. 9, it is provided, "That nothing in this act contained shall alter the several hereinbefore recited acts (a), nor any act or acts passed subsequently to the said hereinbefore recited acts, regarding the highways or turnpike roads in England and Wales; but that the same, where not expressly amended or altered by this act, shall remain in as full force as at the time of passing this act; and that all their powers, authorities, provisions, regulations, and forms, shall be applicable, not only to the carrying those acts respectively into execution, but also this act, so far as the same are adapted thereto, and are not expressly varied or altered by this act, in as full and ample a manner as if the same had been re-enacted in this act."

(a) 13 Geo. III. c. 78; 34 Geo. III. c. 74; and 44 Geo. III. c. 52.