Act '62, s.18. All expenses so directed to be paid by the board in respect of the repairs of any highway shall be deemed to be expenses incurred by the board in repairing such highway, and shall be recovered accordingly (w). The highway board may appear before the justices at petty sessions by their district surveyor or clerk, or any member of the board. (t) If the waywarden appears and denies, bona fide, that the road is a highway it seems from Reg. v. Odell, 34 J. P. 534, that the justices ought not to proceed further in the matter. In that case the Court of Queen's Bench decided that if the waywarden appears before the justices and denies that the road is a highway, and that point is bona fide disputed, and the justices overrule the objection to their jurisdiction, the court will review the finding of the justices, and if satisfied that their decision was wrong on the question of highway or no highway, will quash any order which they may have made upon the highway board directing them to repair. In the previous case of Reg. v. Farrer, L. R. 1 Q. B. 558, 30 J. P. 469, it had been decided that the jurisdiction of justices underthis and the following section is limited to admitted highways. It appears, too, from Milton v. Faversham, 31 J. P. 341, that in the event of the justices dismissing a complaint of this description a case may be stated for the opinion of the Court of Queen's Bench uuder 20 & 21 Vict. c. 43. In that case the justices were of opinion that the obligation to repair certain roads, which were admitted highways and out of repair, had not been established to their satisfaction, because the roads in question formed part of the town of Milton, and were repairable by the town commissioners under a local Act, and consequently formed no part of the highway district of Faversham. They, therefore, dismissed the complaint, but stated a case for the opinion of the Court of Queen's Bench as to the correctness of their conclusions. The court, after laying down the principle on which the justices should proceed, remitted the case back to them to be decided according to the principle so laid down. (u) 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 at length. (w) The words " and shall be recovered accordingly," appear to be virtually repealed by 41 & 42 Vict. c. 77, s. 7, after the 25th March, 1879, so far as relates to expenses to be paid by any parish. They refer to the 20th section (subsequently repealed and, substantially, re-enacted by 27 & 28 Vict. c. 101, s. 32), Act'62 s.18. under which the expense of repairing highways was to be "a separate charge on each parish." But by 41 & 42 Vict. c. 77, s. 7, the expense of repairing highways incurred by a highway board, on and after the 25th March, 1879, is to be "deemed to have been incurred for the common use and benefit of the several parishes within their district, and shall be charged on the district fund." Such expenses, therefore, after that date, can no longer be charged to the parish, and consequently cannot be "recovered" from it. gation to repair is disputed 19. When on the hearing of any such summons When oblirespecting the repair of any highway, the liability (x) to repair is denied by the waywarden on behalf of his parish, or by any party charged therewith (y), the justices shall direct a bill of indictment to be preferred, and the necessary witnesses in support thereof to be subpoenaed, at the next assizes to be holden in and for the said county, or at the next general quarter sessions of the peace for the county, riding, divis on, or place wherein such highway is situate, against the inhabitants of the parish (2), or the party charged therewith (y), for suffering and permitting the said highway to be out of repair; and the costs (a) of such prosecution shall be paid by such party to the proceedings as the court before whom the case is tried shall direct, and if directed to be paid by the parish (b) shall be deemed to be expenses incurred by such parish in keeping its highways in repair, and shall be paid accordingly. (x) This only applies when the fact of the road being a highway is admitted, and merely the liability to repair is denied. In Reg. v. Farrer, L. R. 1 Q. B. 558, 30 J. P. 469, it was held that if the fact of the road being a highway is denied, the justices have no power to order a bill of indictment to be filed at the assizes or sessions against the parish. But if the fact of highway is admitted, and the only question is whether the road is out of repair, or some other person is liable to the repairs, then the justices must make the order. And in Reg. v. Odell, 34 J. P. 534. the Court of Queen's Bench quashed an order of justices in Act '62, s. 19. special sessions (ordering a highway board to repair) on the simple ground that the justices had wrongly decided that a road was a highway, and had overruled the waywarden's bonâ fide contention that the road was not a highway. It seems very doubtful, however, whether this or the 18th section will be available after the 25th March, 1879, in any case where it is not sought to charge some other party than the parochial authority with the repairs. It is evident from the power given to the waywarden in the 18th section to "deny the liability of the parish to repair," and to the board to charge the expense of repairs to the parish; coupled with the provision in this (the 19th) section that if on the hearing of the summons "the liability to repair is denied by the waywarden on behalf of his parish,” the justices shall direct an indictment to be preferred, and that if the costs of the prosecution are directed "to be paid by the parish," they shall be deemed to be expenses "incurred by such parish in keeping its highways in repair," that the whole machinery provided by these sections proceeds upon the assumption that the parish is liable to maintain its own highways. But after the 25th March, 1879, the expense of repairs will be no longer payable by the parish, but will be paid out of the district fund (41 & 42 Vict. c. 77, s. 7). Consequently the ground-work for the procedure fails, and the provisions of the sections will no longer be applicable when the highway board are the only parties chargeable with the repair of the highway in question. In that case, it would seem that recourse must be had to the new provisions in 41 & 42 Vict. c. 77, s. 10, as superseding those contained in the 18th and 19th sections of the Highway Act, 1862, in all cases where it is sought to make the highway board liable for repairs. (y) The words " or by any person charged therewith " " appear to have been inserted here by mistake, inasmuch as the words "such summons to which the hearing applies, evidently refer to the summons mentioned in sect. 18, viz., a summons to the highway board or to the waywarden of the parish only. Similar words. are found in 5 & 6 Will. 4 c. 50, s. 95; but, then, express provision is made in sect. 94 for summoning any other person than the surveyor, chargeable with such repairs." No corresponding provision is made in sect. 18 of this Act, and therefore there is no "party charged therewith" to whom the 19th section can apply. This view is confirmed by the fact that sect. 34, which pro-vides for the recovery of expenses against such a party, as originally drawn, expressly required that the highway should be adjudged to be out of repair "in the manner provided by the Principal Act." This was altered by 27 & 28 Vict. c. 101, s. 23, by substituting the words "in manner provided by the Highway Act, 1862," but no power was given to summon the party charged with the repair. Consequently, so far as he was concerned, the case remained the same as before, and it seems to. follow that any proceedings against him must still be taken Act '62, s. 19. under 5 & 6 Will. 4, c. 50, ss. 94, 95, and not under sects. 18 & 19 of this Act, unless the highway board, after an order for repair under sect. 18, direct their surveyor to repair the highway, and then summon the party under sect. 34, as amended by 27 & 28 Vict. c. 101, s. 23. (z) In the case of an indictment preferred by the county authority under 41 & 42 Vict. c. 77, s. 10, it will not be preferred against "the inhabitants of the parish," but against "the defaulting authority," i.e., the highway board. (a) The court has no power to order costs where the jury find a verdict of not guilty on the ground that the road is not a highway (Reg. v. Buckland, 34 L. J. m. 178, 29 J. P. 526), nor where the prosecutor fails to make out that the road is a highway of that kind as to which the indictment was ordered (Reg. v. Cleckheaton, 29 J. P. 245; Reg. v. Lee, 45 L. J. m. 55, 40 J. P. 551). (b) It would seem from 41 & 42 Vict. c. 77, s. 7 that after the 25th March, 1879, the court will no longer have power to direct the costs to be paid by the parish (see notes (w) and (x) supra). (c) Sects. 20 to 24, both inclusive, to which this heading applies, were repealed by 27 & 28 Vict. c. 101, s. 32, and other provisions made on the subject by that and the three following sections. (d) This section was repealed by 27 & 28 Vict. c. 101, s. 36, and other provisions made as to the making up of accounts. (e) This section was repealed by 27 & 28 Vict. c. 101, s. 36, and other provisions as to appeal against items of expense and expenditure, &c., made by sect. 38. transmit 27. (f) The clerk to every highway board shall, Clerk of within such thirty days after the said audit transmit such board to statement to one of Her Majesty's principal Secretaries statement to of State; and any such clerk who shall not within the State. time aforesaid transmit the said statement to the said Penalty for neglect. Secretary of State shall for every such offence, upon a Secretary of Act '62, 6. 27. summary conviction for the same before two justices of the peace, be liable to a penalty not exceeding £10. Abstract of statements to be laid before 28. (f) The Secretary of State shall cause the statements so transmitted to be abstracted, and the Parliament. abstracts thereof to be laid before both House of Parliament, with the other statements in relation to highways required to be abstracted and laid before Parliament by the Act 12 & 13 Vict. c. 35. Secretary of of statement to be prepared. (f) Sects. 27 and 28 appear to be virtually repealed by 27 & 28 Vict. c. 101, s. 36, and 41 & 42 Vict. c. 77, s. 9. 29. (g) It shall be lawful for one of Her Majesty's cause form principal Secretaries of State to cause to be prepared such forms for such statement as he may from time to time deem suitable, and also from time to time alter the forms for the annual statement prescribed by the said Act 12 & 13 Vict. c. 35, but no statement shall be transmitted under that Act concerning parishes wholly within a highway district under this Act. (g) Part of this section, viz., from "to cause" to "and also," both inclusive, appears to be virtually repealed by 27 & 28 Vict. c. 101, s. 36, and 41 & 42 Vict. c. 77, s. 9. A similar provision is made by the former of those sections, which is still in force, excepting that the powers conferred on the Secretary of State are transferred to the Local Government Board by 35 & 36 Vict. c. 79, s. 36. Officers appointed by highway board to account to them when required. (h) This section, providing, for sending quarterly accounts to overseers, was repealed by 27 & 28 Vict. c. 101, s. 36. 31. All officers appointed by the highway board shall, as often as required by them, render to them or to such persons as they appoint a true, exact, and perfect account in writing under their respective hands, with the proper vouchers, of all moneys which they may respectively to the time of rendering such accounts have received and disbursed on account or by reason |