(b) This section is virtually repealed by the repeal of 21 & 22 Act'62, 8.41. Vict. c. 98, by 38 & 39 Vict. c. 55, s. 343, and the consequent abolition of the power of adopting the Local Government Act (see also 38 & 39 Vict. c. 55, s. 5). In Denver v. Kingston Highway Board, 35 J. P. 696, the board were held liable for the cost of repairs executed during the period between the passing of the resolution to adopt the Local Government Act, and the date of its taking effect under 21 & 22 Vict. c. 98, s. 20.

APPLICATION OF PRINCIPAL ACT.

of Principal

42. The following regulations shall be observed Constructio with respect to the construction of the Principal Act Act and this and this Act:

1. This Act shall be construed as one with the Principal Act so far as is consistent with the provisions of this Act (c):

2. The 9th section of the Principal Act, whereby it is enacted that a surveyor may be appointed by the inhabitants of a parish with a salary, shall not apply to any parish within any district formed under this Act:

3. The 10th section of the Principal Act, whereby it is enacted that the surveyor or surveyors at the time of passing his or their accounts as therein mentioned shall deliver to the justices a statement in writing of the name and residence of the person or persons appointed to succeed him. or them as a surveyor or surveyors, shall not apply to any parish within any district formed

under this Act:

4. The 13th, 14th, 5th, 16th and 17th sections of
the Principal Act, providing for the formation
of parishes into districts, and the 18th and 19th
sections of the Principal Act, providing for the
appointment of a board in large parishes, shall

Act.

Act '62, s. 42.

Relative duties of outgoing surveyors and highway board.

not apply to any parish within any district formed under this Act:

5. The penalty imposed by sect. 20 of the Principal Act on the surveyor for neglect of duty shall not apply to a highway board constituted under this Act:

6. Any summons or notice, or any writ or any proceeding, at law or in equity, requiring to be served upon (c) the board, may be served by the same being left at or transmitted through the post in a pre-paid letter directed to the office of the board, or being given personally to the district surveyor or clerk of the board:

7. The 35th section of the Principal Act, whereby it is provided that the ratepayers of any parish may divide amongst themselves the carriageof materials in manner therein mentioned, shall not apply to any parish within any district formed under this Act:

8. The 39th, 40th, 43rd, 44th and 45th sections of the Principal Act relating to the accounts of surveyors, shall not apply to the highway board of any district formed under this Act.

(c) Consequently property which was exempt from the payment of highway rates under 5 & 6 Will. 4, c. 50, s. 33, still continues exempt when the parish is included in a highway district (see Reg. v. Heath, L. R. 1 Q. B. 218, 30 J. P. 82, and Carter v. Wareham, 30 J. P. 341).

(d) As to service of notices, &c., issued by the board, see 27 & 28 Vict. c. 101, s. 26.

43. On the formation of a highway district the following regulations shall be enacted with respect to the surveyors and the highway board:

1. No surveyor shall be appointed under the Prin

cipal Act for any parish within such dis- Act '62, s. 43.

trict:

2. The outgoing surveyor of every parish within the
district shall continue in office until seven days
after the appointment of the district surveyor
by the highway board of the district of such
outgoing surveyor (e), and no longer; and he
may recover any highway rate made and then
remaining unpaid, in the same manner as if this
Act not been passed, and the money so reco-
vered shall be applied, in the first place, in
reimbursing any expenses incurred by him
as such surveyor, and in discharging any debts
legally owing by him on account of the high-
ways within his jurisdiction, and the surplus
(if any) shall be paid by him to the treasurer of
the highway board; and he shall be entitled to re-
ceive from the highway board any sum (ƒ) . . .
which on the allowance of his account shall be
found to be due to him as such surveyor after
the collection and expenditure of the whole of
the highway rate made in such parish during the
last
year:

3. The highway board shall, for all the purposes of

the Principal Act except that of levying high-
way rates, be deemed to be the successor in
office of the surveyor of every parish within the
district.

(e) But the powers of the outgoing surveyor as to collecting rates continue until any outstanding rate is collected, and are not determined by the expiration of the seven day: Reg. v. Bluffield, 29 J. P. 245.

(f) The words "not exceeding £5," which were originally in the section, were virtually repealed by 27 & 28 Vict. c. 101, s. 28, and were afterwards actually repealed by the Statute Law Revi- sion Act, 1875.

Act to be

highways

or personal

Acts.

Act '62, s. 44. 44. All the provisions of the Principal Act for Provisions widening, diverting, and stopping up (g) highwaysof Principal shall be applicable to all highways which now are or applicable to may hereafter be paved, repaired, or cleansed under or under local by virtue of any local or personal Act or Acts of Parliament, or which may be situate within the limits of any such Act or Acts, except highways which any railway company, or the owners, conservators, commissioners, trustees, or undertakers of any canal, river, or inland navigation, are liable by virtue of any Act of Parliament relating to such railway, canal, river, or inland navigation to make, maintain, repair, or cleanse.

Enabling councils of certain boroughs to

roads and

highways

rates for

their repair.

(g) The provisions referred to are sects. 82 to 93, both inclusive.

45. Whereas there are in certain boroughs in England and Wales roads and highways that are adopt parish now and have heretofore been repaired by the inhabitants of the several parishes or townships within and to apply which such roads and highways are situated, and who also contribute and pay to the general rates levied for the repair of the public streets, roads and highways maintained and kept in repair by the council of such boroughs, by reason whereof a great burthen is im-posed upon the ratepayers of the said parishes and townships; and it being doubtful whether the council. of such boroughs have the power to adopt such parish roads and highways, or to apply the rates collected in such boroughs in repairing the same: Be it enacted that it shall and may be lawful for the council of every such borough (h) in England and Wales, upon the petition of the majority of the ratepayers of such parishes or townships present at a public meeting duly convened, to adopt all or any of such parish roads and highways as the council shall in its discretion consider advisable,

and to apply the rates levied and collected by the said Act'62, s. 45. council for the repair of the public streets, roads and highways within such borough in repairing and maintaining such parish roads and highways: Provided always, that it shall be competent for such council, previous to adopting such parish roads and highways, to require the provisions contained in any local Act applying to the public streets, roads, and highways of such borough to be complied with.

(h) The boroughs here referred to are such as are defined by 5 & 6 Will. 4, c. 76, or any places to which the provisions of that Act are extended (sect. 2, ante).

highway

permit

fences with

liability to

46. No person through whose land a highway District passes, which is to be repaired by the parish, shall be- boards may come liable for the repair of such highway by erecting landowner fences between such highway and the adjoining land, if to erect such fences are erected with the consent in writing of out incurring the highway board of the district within which such repair highway is situate in the case of a place within the jurisdiction of a highway board, and in the case of any other place with the consent (i) of the surveyor or other authority having jurisdiction over the highway.

(i) In the case of a highway board the consent must be "in writing;" but in any other case than that of a highway district it seems that a parol consent is sufficient.

highways.

penalties.

47. All penalties under this Act, and all moneys Recovery of recoverable as penalties (k), may be recovered summarily before any two or more justices in the manner directed by the Act 11 & 12 Vict, c. 43, and any Act amending the same; but where any sum adjudged to be paid under this Act in respect of such penalties or moneys exceeds £5, an appeal may be had by any person aggrieved to a court of general or quarter sessions in manner provided by the Act 24 & 25 Vict.