Act '64, s. 39.

Power to refer case to

(2.) The notice must state the matter appealed against, and the ground of the appeal:

On the receipt of the notice the board may serve a counter notice on the appellant, requiring him to appear in person or by his agent at the next meeting of the board, and support his appeal. On hearing the appellant the board may rectify the matter complained of, and if they do so to a reasonable extent, and tender to the appellant a reasonable sum for the costs of his attendance, it shall not be lawful for the appellant to proceed with his appeal. In any (y) other case the appellant may proceed with his appeal, and the reasonable costs of his attendance on the board shall be deemed part of the costs of the appeal.

(x) Quare whether this applies to an appeal against the determination of justices in petty sessions under sect. 32? Judging from the context, and the last paragraph of sect. 42, it would seem to be confined to an order of the highway board. But the declaration in the first paragraph of this section that no appeal shall be entertained, &c., "in pursuance of this Act," unless, &c., may possibly extend it to an order of justices.

(y) This seems to include the case of the appellant's omitting or declining to appear before the board in obedience to the counter notice. The board can only rectify the matter complained of "on hearing the appellant," and there is no power to compel his appearance, although the section speaks of "requiring" him to appear before them.

40. If at any time after notice of appeal has been arbitration. given it appears to the court of general or quarter sessions, on the application of either party in the presence of or after notice has been given to the other party, that the matter in question in such appeal consists wholly or in part of matters of mere account which cannot be satisfactorily tried by the court, it shall be lawful for such court to order that such matters, either wholly or in part, be referred to the arbitration of one or more persons, to be appointed by

the parties, or, in case of disagreement, by the court; Act '64, s. 40. and the award made on such arbitration shall be enforceable by the same process as the order of the court of quarter sessions.

of 17 & 18

incorporated.

41. The provisions of the Common Law Procedure Provisions Act, 1854, relating to compulsory references, shall be Vict. c. 125. deemed to extend to arbitrations directed by the court of quarter sessions; and the word "court" in the said Act shall be deemed to include the court of quarter sessions.

on appeal.

42. If upon the hearing of the appeal it appears to Proceedings the court that the question in dispute involves an inquiry as to whether a road is or is not a highway repairable by the public, or an inquiry as to any other important matter of fact, the court may either themselves decide such question, or may empanel a jury of twelve disinterested men out of the persons returned to serve as jurymen at such quarter sessions, and submit to such jury such questions in relation to the matters of fact in dispute as the court think fit; and the verdict of such jury, after hearing the evidence adduced, shall be conclusive as to the questions submitted to them.

The questions so submitted shall be in the form and shall be tried as nearly as may be in the manner in which feigned issues are ordinarily tried, and the court shall decide the parties to be plaintiffs and defendants in such trials.

Subject as aforesaid, the court may, upon the hearing of any appeal under this Act, confirm, reverse, or modify any order of the highway board (z), or rectify any account appealed against.

Act '64, s. 42.

Costs of appeal.

Jurisdiction as to districts

in different

counties.

(z) But nothing is said about an order of justices determining the rateable value of property under sect. 33.

43. If the appellant is successful, the costs shall, unless the court otherwise orders, be paid by the board, and shall be charged to the parishes within the jurisdiction of the board other than the parish to which the appellant belongs in the same proportions in which such parishes contribute to the common fund of the board.

If the appellant is unsuccessful, the board, if the waywarden be the appellant, may charge the costs of the appeal to the parish to which the appellant belongs in the same manner as if they were expenses incurred in repairing the roads in such parish (a), and may levy the sum accordingly, and may carry the sum so levied to the account of the several parishes within the jurisdiction of the board, other than the parish to which the appellant waywarden belongs, in the same manner as if they were expenses contributed by such parishes to the common fund of the board; but if some ratepayer other than the waywarden is the appellant, the court may order the costs of the appeal to be paid by such appellant; and such costs shall be recoverable in the same manner as a penalty is recovered under the Highway Act, 1862.

(a) But after 25th March, 1879, there will be no means of charging the expenses of repairing roads to any parish (see 41 & 42 Vict. c. 77, s. 7), and consequently no means of charging it with the costs of the appeal.

44. Places situate in different counties, and places atre situate partly in one county and partly in another county, when united in one highway district, shall, for all matters connected with the provisions of this Act relating to appeals to quarter sessions against

accounts, be deemed to be subject to the jurisdiction Act '64, s. 44. of the justices of the county in which the district is situate to which such places shall have been united by any provisional and final order or orders, or to which after the passing of this Act any such district shall be declared to be subject by the orders constituting the same, in the same manner as if all such places or parts of places were situate in such county.

SUPPLEMENTAL PROVISIONS.

fault of high

appointing

45. If the highway board of a district make default in In case of deappointing a treasurer, clerk, and district surveyor (b), way board or any of such officers, in pursuance of the Highway officers. Act, 1862, within three months after the day fixed by the justices for the holding of the first meeting of the board, or within three months after a vacancy occurring in any of the said offices, the justices in general or quarter sessions assembled may, if they think fit, appoint a person to any of the said offices in respect of which the default has been made, and may fix the salary to be paid to the officer appointed; and any such appointment shall take effect and salary be recoverable in the same manner as if the officer appointed by the justices had been appointed by the highway board of the district; and it shall not be lawful for such board, without the consent of the said justices, to remove any officer appointed by them under this section, or to lessen his salary within one year from the date of his appointment.

(b) By 25 & 26 Vict. c. 61, s. 12, the board are required to appoint these officers at their first meeting, or at some adjournment thereof, and are authorized to remove any of them, and to appoint others in their stead or in the room of such as may die or resign.

Act '64, s. 46. Jurisdiction

of justices in petty sessions.

Power of highway board to

make im

46. The justices assembled in petty sessions at their usual place of meeting may exercise any jurisdiction which they are authorized under the Highway Acts or any of them to exercise in special sessions (c); and no justice of the peace shall be disabled from acting as such at any petty or special or general quarter sessions in any matter merely on the ground that he is by virtue of his office a member of any highway board complaining, interested, or concerned in such matter, or has acted as such at any meeting of such Board (d).

(c) Hence justices in petty sessions, at their usual place of meeting, may now appoint a surveyor under 5 & 6 Will. 4, c, 50, ss. 11, 12, excuse persons from payment of highway rate, Id. s. 32; and perform other acts required by that Act to be done by justices in special sessions.

(d) But a justice who, on an application to subtract certain townships from a highway district, appears by counsel and gives evidence to oppose the subtraction, makes himself a party to the proceedings, and notwithstanding this section, is not entitled to vote upon them at quarter sessions (Reg. v. JJ. of Cumberland, 42 J. P. 361). Such proceedings are judicial and not administrative (Id.) But quære whether the mere giving of evidence in such a matter by a justice would disentitle him to vote (Id.)

47. A highway board may make such improvements as are hereinafter mentioned in the highways within provements their jurisdiction, and may, with the approval of the money for justices in general or quarter sessions assembled, borpreviously to row money for the purpose of defraying the expenses of such improvements (e):

and borrow

the same, but

cause an estimate to be made.

Previously to applying for the approval of the justices the highway board shall cause an estimate of the expense of the improvements to be made, and two months at the least before making their application shall give notice of their intention so to do.