het '62, s. 35. highway board, shall from time to time be applied by such board towards the repair and maintenance of the highways within such parish (p): Provided that any person (4) aggrieved by any order of justices made in pursuance of this section may appeal to a court of general or quarter sessions holden within four months from the date of such order; but no such appeal shall be entertained unless the appellant has given to the other party to the case a notice in writing of such appeal, and of the matter thereof, within fourteen days after such order, and seven clear days at the least before such sessions, and has entered into a recognizance, with two sufficient sureties, before a justice of the peace conditioned to appear at the said sessions and to try such appeal, and to abide the judgment of the court thereupon, and to pay such costs as may be by the court awarded; and upon such notice being given, and such recognizance being entered into, the court at such sessions shall hear and determine the matter of the appeal, and shall make such order thereon, with or without costs to either party, as to the court may

seem meet.

From and after the making of such order by the justices, or by the court on appeal, as the case may require, such highway shall be repaired in like manner and at the like expense as highways which a parish is liable to repair (r).

(n) Nothing is said about costs, but it is presumed that justices in their discretion may order them to be paid by the party liable to repair, under 11 & 12 Vict. c. 43, s. 18.

(0) Penalties and moneys recoverable as penalties are recoverable summarily before two or more justices under 11 & 12 Vict. c. 43. (See sect. 47, post.)

(p) It would seem that the parish will still be entitled to the benefit of such interest and dividends, &c., notwithstanding the fact that after the 25th March, 1879, the expense of maintaining highways is to be charged on the district fund under 41 &

42 Vict. c. 77, s. 7, instead of being a separate charge on each Act’62, s. 35. parish under 27 & 28 Vict. c. 101, s. 32. It is presumed that the case would fall within the last paragraph of the 33rd section of 27 & 28 Vict. c. 101, which enacts that all sums of money payable in pursuance of the precept of a highway board (including contribution to the district fund), shall be subject to all charges to which ordinary highway rates are subject by law.

(9) The right of appeal is confined to any "person" aggrieved, whereas the right of application for the order is given to any "person or corporation." It would seem, therefore, that a corporation has no power to appeal, and consequently that no appeal can be maintained by the highway board, although probably the waywarden may do so. In proceedings under 41 & 42 Vict. c. 77, the word "person" includes "a body of persons corporate or unincorporate" (sect. 38). But as there is no provision requiring the two Acts to be construed together it seems very doubtful whether the later Act obviates the difficulty.

(r) By 27 & 28 Vict. c. 101, s. 24, the highway board are enabled to apply for an order under this section in the same manner as the person or corporation liable to repair.

to roads laid

36. Where the inhabitants of any parish are de- Provision as sirous of undertaking the repair and maintenance of out. any driftway or any private carriage or occupation road, within their parish, in return for the use thereof, the district surveyor may, at the request of the inhabitants of such parish assembled in a vestry duly convened for the purpose, and with the consent in writing of the owner and the occupier of every part thereof, apply to the justices in petty sessions to declare such driftway or road to be a public highway to be repaired at the expense of the parish; and upon such application being made it shall be lawful for the justices to declare the same to be a public carriage road to be repaired at the expense of the parish.

highway

empted

37. No toll shall be demanded by virtue of any Act Surveyor of of parliament on any turnpike road from the surveyor board exof a highway board when executing or proceeding to from execute his duties as such surveyor, and all provisions pike to applicable to the exemptions in the Act 3 Geo. 4, c. 126,

1

Act '62, s.37. shall apply to the case of the exemptions conferred by this enactment.

Limiting jurisdiction of justices.

Power to alter highway districts.

38. No justice of the peace shall act as such in any matter in which he has already acted as a member of the highway board, and in which the decision of such board is appealed against (s),

(s) This section is virtually repealed by 27 & 28 Vict. c. 101, s. 46, so far as relates to any justice who is merely an ex officio member of a highway board, and acting as a justice at any petty or special or general quarter sessions.

39. Any highway district formed under this Act may from time to time be altered by the addition of any parishes (t) in the same or in any adjoining county, or the subtraction (u) therefrom of any parishes (w), and new highway districts may be formed by the union of any existing highway districts, in the same or in any adjoining county, or any parishes forming part of any existing highway districts, or any highway district may be dissolved; but any such alteration of existing districts, or formation of new districts, or dissolution of any district, shall be made by provisional and final orders of the justices; and all the provisions of this Act with respect to the formation of highway districts and provisional and final orders of justices, and the notices to be given of and previously to the making of such orders, and all other proceedings relating to the formation of highway districts, shall, in so far as the same are applicable, extend to such alteration of existing or formation of new districts, or dissolution of districts, as is mentioned in this section; and in addition thereto provision shall be made, if necessary, in any orders of justices made under this section for the adjustment of any matters of account arising between parishes or parts of districts

in consequence of the exercise of the powers given by Act '02, s. 39. this section. Where any parish is added to or any district united with any district in another county, the final order of the justices of the county in which such parish or district is situate shall not be confirmed by them until they shall have received the approval (x) of their provisional order for such addition or union from the justices of the county in which the district is situate to or with which such addition or union is to be made. Where any highway district is dissolved, or where any parish is excluded from any highway district, the highways in such district or parish shall be maintained, and the provisions of the Principal Act in relation to the election of surveyors and to all other matters shall apply to the said highways, in the same manner as if such highways had never been included within the limits of a highway district (y).

(t) Quare whether this section applies to "annexing" the outlying part of a parish under sect. 33, ante. It would seem not, as the word "parishes," it is presumed, is confined to entire parishes, and does not include part of a parish.

(u) See Reg. v. JJ. of Cumberland, 42 J. P. 361, as to the part which an ex-officio member of a highway board may take in opposing an order for separation.

(w) By 27 & 28 Vict. c. 101, s. 14, this section is extended to the "separation" of any townships, &c., separately maintaining their own highways, and consolidated by any previous order of justices, and to an alteration in the number of waywardens of any parish. Parishes, therefore, are to be "subtracted," and consolidated townships, &c., " separated," from the district. As to the costs of parishes applying to be removed, see 27 & 28 Vict. c. 101, s. 15.

(x) This approval must be testified by provisional and final orders of the justices. See 27 & 28 Vict. c. 101, s. 14.

(y) Where an alteration is made in part only of a highway district, the residue of the district is not affected thereby, but continues subject to the Highway Acts in the same manner as if no such alteration had been made (27 & 28 Vict. c. 101, s. 17).

I

Act 62, s. 40.

Provision in case of failure of board to

hold first meeting.

Reservation of right to

Act.

40. If any highway board make default in holding its first meeting in pursuance of this Act (z), such board shall not thereupon become disqualified from acting, but the justices in general or quarter sessions shall, on the application of any persons liable to pay highway rates within the district, make such order as they think fit, for the holding of such board at some other time, and any order so made shall be deemed to be an order capable of being removed into the Court of Queen's Bench, in pursuance of the Act 12 & 13 Vict. c. 45, and may be enforced accordingly (a), and the costs of any application to the court of quarter sessions in pursuance of this section shall be defrayed out of the district fund of the board.

(2) This refers to sect. 6(5), repealed by 27 & 28 Vict. c. 101, s. 10, which makes other provisions in lieu of that sub-section. As the latter Act is to be construed as one with the former (27 & 28 Vict. c. 101, s. 2), this provision applies to the failure to hold the first meeting under the latter Act, in the same manner as before such repeal it applied to the failure to hold the meeting pursuant to the former Act.

(a) The removal will be by order of the court or judge at chambers, under 12 & 13 Vict. c. 45, s. 18, and 36 & 37 Vict. c. 66, ss. 16, 34. See Foot's Commentary on the Quarter Sessions Procedure Act, p. 67, where both the procedure and practice are explained.

41. (b) Any parish or part of a parish included in adopt Local a highway district may adopt the Local Government Government Act in the same manner and under the same circumstances in and under which it might have adopted the same if it had not been included in such district; and upon such adoption being made such parish or part of a parish shall cease to form part of such district, subject nevertheless to the payment of any contribution that may at the time of such adoption be due from such parish or part of a parish to the highway board.