Act 64, s. 14. separation of any townships, tithings, hamlets, or places separately maintaining their own highways which may

As to the costs of

plying to be removed from one

district to another.

have been consolidated by any previous order of the justices, and to an alteration in the number of waywardens of any parish (¿).

(h) This refers to that part of 25 & 26 Vict. c. 61, s. 39, which relates to the addition of any parish to, or the union of any district with, a district in another county; and requires the "approval" of the justices of the county in which the district is situate to or with which such addition or union is to be made, before the final order of the justices of the county in which such parish or district is situate is confirmed.

(i) The power of subtraction under 25 & 26 Vict. c. 61, s. 39, only applied to "parishes," including places maintaining their own highways (Id. s. 3). This section extends its operation to the "separation of any townships," &c., which had been consolidated by previous order under the 7th section of that Act, and had, therefore, ceased to maintain their own highways; and also enables the justices to alter the number of waywardens of a parish, a matter which had not been provided for by sect. 39.

15. Where, after the formation of an highway parishes ap- district, an application is made by any parish in that district to any court of general or quarter sessions, praying that the said parish may be removed from that district, all costs incidental to or consequential on such application and the removal of the said parish shall, unless the court otherwise directs, be paid by the parish that has made the application in such manner as the said court may direct. The amount of such costs shall be raised in the same manner as if they were expenses incurred in maintaining and keeping in repair the highways of that parish (k).

(k) If the application is granted, and the parish removed from the district, these costs will be payable out of the highway rate under 5 & 6 Will. 4, c. 50, s. 27 (25 & 26 Vict. c. 61, s. 39, last par.). But if the application is refused, the costs will be payable by the parish under sects. 32, 33, infra, until the 25th March, 1879. After that date the costs, on refusal of the application, will be charged on the district fund under 41 & 42 Vict. c. 77, s. 7.

validity of

justices.

16. No order of the justices forming a highway Act '64, s. 16. district, whether made before or after the passing of As to this Act, shall be void by reason that it includes in order of such district a place which the justices are not entitled to include under the provisions of this Act or the Highways Act, 1862, or one of such Acts; and any order containing such prohibited place shall be construed and take effect as if that place had not been mentioned therein.

All expenses properly incurred by the justices of any county in maintaining the validity of any provisional or final order made by them shall be payable out of the county rate of that county.

powers of

17. All powers and jurisdictions vested in justices Extent of by the Highway Act, 1862, and this Act, or either of justices. such Acts, may from time to time be exercised in relation to highway districts, highway boards, and highway parishes already formed, as well as upon the occasion of forming new highway districts, boards, or parishes; and where an alteration is made in part only of a highway district the residue of that district shall not be affected thereby, but shall continue subject to the Highway Acts in the same manner as if no such alteration had been made (1).

() As to the effect of such alteration upon any parish excluded from a district, see 25 & 26 Vict. c. 61, s. 39, last par. And as to the effect of an alteration of boundaries of a district, see 41 & 42 Vict. c. 77, s. 5 (2).

"provisional

orders."

18. The expression "provisional and final order," as Definition of used in this Act, shall mean a provisional and final order and final passed and published in manner provided by this Act and the Highway Act, 1862, with the necessary variations as to notices and otherwise (m).

(m) See 25 & 26 Vict. c. 61, ss. 5, 6, 8; and 27 & 28 Vict. c. 101, $. 12, ante.

Act '64, a. 19.

Appointment and vote of

MISCELLANEOUS AMENDMENTS.

19. Every waywarden, before taking his seat as a member of a highway board, shall produce a certificate waywardens. of his having been duly elected or appointed a waywarden, and such certificate shall, in the case of an elected waywarden, be signed by the chairman of the vestry or other meeting at which he was elected; and in the case of a waywarden appointed by justices, be signed by the justices making the appointment (n).

Power to

waywardens

A waywarden may sit as such for more places than one, but he shall be entitled to one vote only as waywarden.

(n) As to the regulations respecting the election of waywardens, see 25 & 26 Vict. c. 61, s. 10.

20. Whereas doubts are entertained whether section to contract 46 of the Highway Act of 1835 (o) applies to a highway for supply or district: Be it enacted, that that section shall not apply to the highway board of any highway district or to any parish within any highway district.

cartage of materials.

Notwithstanding anything contained in the Act 26 & 27 Vict. c. 61 (p), or in any other Act, any waywarden may contract for the supply or cartage of materials within the parish for which he is waywarden, with the license of two justices assembled at petty sessions; such license to be granted on the application of the clerk of the highway board, who must be authorized to make such application by a resolution of his board assembled at a meeting of which notice has been given.

(0) This section enacts that the surveyor, with the consent of the inhabitants in vestry, may contract for purchasing, getting, and carrying the materials for the repair of the highway; and

that if he has any part, share, or interest, directly or indirectly, Act '64, s. 20. in any contract or bargain for work or materials to be made, done, or provided, &c., &c., or upon his own account, directly or indirectly, uses or lets to hire any team, or uses or sells, or disposes of any materials, &c., &c. (unless a written license from two justices for the sale of such materials, or letting to hire such team, be first obtained), he shall forfeit, on conviction, £10, &c., &c.

In Wakefield v. Senechall, 29 J. P. 375, it was held that a surveyor of highways who does repairs to the roads without the consent of the vestry, doing the work himself without a certificate from two justices, is not entitled to be repaid the cost of the materials supplied, or labour employed in doing such repairs.

(p) This Act, after reciting that it is expedient that waywardens appointed under 25 & 26 Vict. c. 61, should be prevented from contracting for any works to be executed under the said Act within their own districts, enacts:

1. No such waywarden shall, directly or indirectly, in his own name or in the name of any other person or persons, contract for the repair of any road, or for any other work to be executed under the provisions of the said recited Act within the parish for which he is elected waywarden, or within any other parish in the same district, under the pain of forfeiting the sum of £10, with full costs of such suit, to any person or persons who shall sue for the same by action for debt in any county court within the jurisdiction of which the parish in which the roads to be repaired, or the work so contracted for, is situate.

2. It shall not be lawful for any highway board to pay knowingly for any repair or work so contracted for; and any money paid by any board under any such contract shall be recoverable by them, with full costs, from the person or persons to whom the same shall have been paid, by action of debt in any of Her Majesty's Courts of Record at Westminster, if the same shall amount to above £50, or in any county court as aforesaid if below that amount; and the balance so recovered, after paying all expenses, shall be placed to the credit of the district fund.

3. This Act shall be construed with and held to be part of the said recited Act for the better management of highways in England.

for discon

maintenance

21. (1) When any highway board consider any high- Provisions way unnecessary for public use, they may direct the dis- tinuance of trict surveyor to apply to two justices to view the same, of unneces and thereupon the like (r) proceedings shall be had as where application is made under the Highway Act, 1835, to procure the stopping up any highway, save

sary high

ways.

Act '64, 9.21. only that the order to be made thereupon, instead of directing the highway to be stopped up, shall direct that the same shall cease to be a highway which the parish is liable to repair, and the liability of the parish shall cease accordingly; and for the purpose of such proceedings under this enactment, such variation shall be made in any notice, certificate, or other matter preliminary to the making of such order as the nature of the case may require: Provided that if at any time thereafter, upon application of any person interested in the maintenance of such highway, after one month's previous notice in writing thereof to the clerk of the highway board for the district in which such highway is situated, it appear to any court of general or quarter sessions of the peace that from any change of circumstances since the time of the making of any such order as aforesaid under which the liability of the parish to repair such highway has ceased the same has become of public use, and ought to be kept in repair by the parish, they may direct that the liability of the parish to repair the same shall revive from and after such day as they may name in their order, and such liability shall revive accordingly as if the first-mentioned order had not been made; and the said court may by their order direct the expenses of and incident to such plication to be paid as they may see fit.

ap

(q) But now, see 41 & 42 Vict. c. 77, s. 24, which appears to virtually repeal this section by the introduction of a new mode of procedure inconsistent with its provisions. (See Ex parte Baker, 26 L. J. m. 164, 21 J. P. 486; Whiteley v. Heaton, 27 L. J. m. 217, 22 J. P. 161; Michell v. Brown, 28 L. J. m. 55, 23 J. P. 548.)

(r) This includes the right of appeal under 5 & 6 Will. 4, c. 50, 8. 88 (Reg. v. JJ. of Surrey, L. R. 5 Q. B. 87, 34 J. P. 199); and the affixing of proper notices under sect. 85 of the same Act (Reg. v. JJ. of Surrey, L. R. 5 Q. B. 466, 34 J. P. 614.)