1904 In re. Ex parte. Darling J. however, that in that case the judge might, if he had chosen, have made a committal order; the debtor had had means, but A DEBTOR, on the same morning on which judgment was obtained he had made an assignment of his property for the benefit of his creditors generally; the judge, therefore, found that though he had had means which would have justified the making of a committal order, he had since parted with them, and that, therefore, he ought to exercise his jurisdiction to make a receiving order instead of committing the debtor to prison. The distinction between the two cases is that there the judge had evidence before him which would have justified the making of a committal order, whilst in the present case he had no such evidence. The learned county court judge could not make a committal order, for he had not before him the necessary evidence of means; and in my opinion he could not make a receiving order "in lieu of" an order that he could not make and which, in fact, could not exist. The difficulty is that in our present decision we are making the right to make a receiving order in lieu of a committal order depend on whether or not there is evidence of means, which Wills J. in Reg. v. Sussex County Court Judge (1) said was not a reasonable construction of the statute. I think, however, that that expression of opinion was unnecessary to the decision of that case, as the county court judge had had evidence of means before him. Appeal allowed. Solicitors for appellant: Arnould & Son, for Rook, Folkestone. Solicitors for respondent: Storey, Cowland & Hill, for Watts & Watts, Folkestone. (1) 59 L. T. 32. W. J. B. C. A. 1901 Dec. 2, 3. [IN THE COURT OF APPEAL.] THE KING v. JUSTICES OF KENT. Highway-Proceedings for Diversion—Certificate of Justices—Period for which In proceedings for the diversion of a highway under s. 85 of the Highway Act, 1835, it is not a condition precedent to the validity of a certificate of justices under that section that the notice of proposed diversion, which is thereby required to be affixed at each end of the highway intended to be diverted, should be first so affixed at such a date as to leave a period of twenty-eight days between the date of the affixing of the notice and the date of the issue of the certificate. Decision of the King's Bench Division, [1904] 2 K. B. 349, reversed. APPEAL from a decision of the Divisional Court making absolute a rule for a certiorari to quash a certificate of justices in proceedings for the diversion of a highway and order of quarter sessions directing the enrolment of the same. The decision is reported [1904] 2 K. B. 349. The facts giving rise to the application were as follows. On April 25, 1903, certain persons of the name of Abrey and Isard, by a notice in writing addressed to the urban district council of Tonbridge, in the county of Kent, and to their clerk. gave notice that they were the owners of certain land called the Blue Barn estate and were desirous of diverting a certain footpath and substituting therefor another and more commodious highway across the Blue Barn estate, and requiring the clerk to summon a meeting of the council and submit their proposal to the council. On July 1 a resolution of the council was passed directing their surveyor to apply to two justices to view the highway proposed to be diverted. On July 3 the surveyor applied to Messrs. C. F. Kemp and R. Wingate, two justices of the peace, to view the highway. They did view, and with the result that they refused to certify that the proposed substituted way was more commodious to the public. On November 9, without any fresh application by Messrs. Abrey and Isard to the district council, or any fresh resolution by the council in that behalf, the surveyor applied to two other justices, Messrs. A. T. Beeching and H. R. Brown, to view the highway. On November 11 the last-named justices viewed, and directed the surveyor to affix the necessary notice of diversion at the side of the highway and to advertise the same in the newspaper as required by s. 85 of the Highway Act, 1835. (1) On November 14 the surveyor affixed the notice at the side of the path. The notice was dated (1) By 5 & 6 Will. 4, c. 50 (The Highway Act, 1835), s. 84, "When the inhabitants in vestry assembled [now the district council] shall deem it expedient that any highway should be stopped up, diverted, or turned, either entirely or reserving a bridle-way or footway along the whole or any part or parts thereof, the chairman of such meeting shall, by an order in writing, direct the surveyor to apply to two justices to view the same, and shall authorize him to pay all the expenses attending such view, and the stopping up, diverting, or turning such highway, either entirely or subject to such reservation as aforesaid, out of the money received by him for the purposes of this Act: provided nevertheless, that if any other party shall be desirous of stopping up, diverting, or turning any highway as aforesaid, he shall, by a notice in writing, require the surveyor to give notice to the churchwardens to assemble the inhabitants in vestry, and to submit to them the wish of such person; and if such inhabitants shall agree to the proposal, the said surveyor shall apply to the justices as last aforesaid for the purposes aforesaid; and in such case the expenses aforesaid shall be paid to such surveyor by the said party, or be recoverable in the same manner as any forfeiture is recoverable under this Act; and the said surveyor is hereby re quired to make such application as aforesaid." .... Sect. 85: "When it shall appear upon such view of such two justices of the peace, made at the request of the said surveyor as aforesaid, that any public highway may be diverted .... so as to make the same nearer or more commodious to the public, and the owner of the lands or grounds through which such new highway so proposed to be made shall consent thereto by writing under his hand .... the said justices shall direct the surveyor to affix a notice in the form, &c. . . . . at the place and by the side of each end of the said highway from whence the same is proposed to be . . . . diverted. . . . and also to insert the same notice in one newspaper published or generally circulated in the county . . . . for four successive weeks next after the said justices have viewed such public highway, and to affix a like notice on the door of the church, &c. . . . . on four successive Sundays next after the making such view; and the said several notices having been so published and proof thereof having been given to the satisfaction of the said justices. . . . the said justices shall proceed to certify under their hands the fact of their having viewed the said highway as aforesaid, and that the proposed new highway is nearer or more commodious to the public." C. A. 1904 REX v. ΚΕΝΤ JUSTICES. C. A. 1904 REX v. KENT November 11, and stated that the justices' certificate would be lodged with the clerk of the peace on December 7. He also inserted a similar notice in a newspaper called the Tonbridge Free Press, which is published in Tonbridge on Saturdays and JUSTICES. is circulated in the district. The notice appeared in the issues of that newspaper on November 14, 21, and 28, and December 5. A similar notice was affixed on the church doors on Sundays, November 15, 22, and 29, and December 6. On Monday, December 7, the justices issued their certificate, which on the same day was lodged with the clerk of the peace. The certificate stated that the justices making it had viewed the highway proposed to be diverted and also the proposed new highway, and that upon the view they found the new highway would be more commodious to the public for the following reasons: "Because the said old highway is a mere footpath across an open field which is very wet and muddy in winter and very inconvenient. . . . whilst the proposed new highway will be of the uniform width of six feet and will be formed with a solid bottom and with a three-inch top course of tar paving. It is understood that such six-foot footpath will eventually form part of a new thirty-six foot roadway to be ultimately lighted and taken over by the urban district council of Tonbridge." The certificate recited that Messrs. Abrey and Isard were the owners of the Blue Barn estate, but did not state that they were the owners of the land on which the proposed new highway was to be made. The justices, however, at the time of making the certificate had before them depositions which shewed that the site of the new highway was parcel of the Blue Barn estate. The certificate having been issued, a Mr. Eastwood and the Tonbridge Rural District Council appealed to the quarter sessions against the certificate and the order for diversion. On January 7, 1904, the appeal was heard, when the quarter sessions dismissed the appeal and ordered the certificate to be enrolled. The appellants obtained a rule for a certiorari to quash the certificate and the order of quarter sessions upon the grounds (amongst others)—that after the refusal of the first two justices to certify, no other justice could issue a certificate without a fresh resolution of the district council directing the surveyor to request such justices to view; that there was no sufficient proof before the justices of a consent by the owners of the land to the substituted highway being made; that s. 85 was not complied with in respect to notices either at the ends of the highway, or on the church doors, or in the newspaper; and that the reasons given by the justices in their certificate for determining that the new footpath would be more commodious were insufficient and bad. The Divisional Court (Lord Alverstone C.J., Wills and Kennedy JJ.) made absolute the rule for a certiorari upon the ground that the notice to be affixed by the surveyor at the ends of the highway proposed to be diverted must be so affixed by him at a date which would leave an interval of twenty-eight days between the affixing of the notice and the issue of the certificate of justices. The justices appealed. Macmorran, K.C., and R. Cunningham Glen, for the appellants. The appeal is confined to the only point that was decided against the appellants in the Court below, that is, as to the time during which the notice affixed at the ends of the highway should remain up. The direction in s. 85 of the Highway Act, 1835, as to affixing such a notice contains no provision as to the time during which it is to be maintained. That direction is followed by directions as to publication of the notice in a newspaper and upon the church doors, but these are wholly independent requirements. The provisions as to insertion of the notice in a newspaper (which may be a weekly newspaper) for four successive weeks, and as to its publication on the church door for four successive Sundays, can obviously be satisfied, though a period of less than twentyeight days may elapse between the view of the justices and the issue of the justices' certificate. Apart from the fact that on a grammatical construction of the section the provisions as to four successive weeks do not relate to the notice at the ends of the highway, it is difficult to see why those provisions should be treated as though they related to whole weeks, so as to raise an implication that a period of twenty-eight days is required in any case. In the present case the notice at the |