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“ annexed to and incorporated with” such parishes "for all Act ’82, s. 32 civil parochial purposes,” it seems that they are annexed to such parishes “for the purposes of the maintenance of the highways just as much as they would have been if they had been included in this section.
The section, however, does not subject extra-parochial places to the common law liability of indictment for non-repair of highways. It only subjects them to the operation of 25 & 26 Vict. c. 61, as highway parishes liable to be put into a highway district, but does not render the inhabitants of such places liable to be separately indicted for the non-repair of any highways within it (Reg v. Central Wingland, 2 Q. B. D. 349, 41 J. P. 711).
By 27 & 28 Vict. c. 101, s. 9, justices in petty sessions are enabled to appoint overseers, and otherwise deal with any extraparochial place with a view to constituting it a highway parishi or part of a highway parish in the same manner as they may deal with it under 20 Vict. c. 19, for the purpose of constituting it a place or part of a place maintaining its own poor.
33. Where part of a parish is not contiguous to the Provision
for outlying parish of which it is a part, such outlying part may at parishes
. the discretion of the justices be annexed (k) to a district, and, when so annexed, it shall for all the purposes of the Highway Acts be deemed to be a parish separately maintaining its own highways.
(k) This provision appears to have been suggested by 20 Vict. c. 19, s. 4, as to annexing extra-parochial places. But it is difficult to see how it can be carried out. The 39th section gives power to alter any district “ by the addition of any parishes.” But that seems to be confined to entire parishes, and not to apply to the annexing of a part. Beyond this there is no provision at all applicable to the case, and certainly none which applies to “annexing” part of a parish.
may be re
34. Where any highway which any body politic or Expenses of corporate or person is liable to repair by reason of highways tenure of any land, or otherwise howsoever, shall be covered from adjudged in the manner provided by the Principal Act to repair
party liable (1) to be out of repair, the highway board of the dis- ratione trict in which such highway is situate may, if they see fit, direct their surveyor to repair the same, and the
Act '62,8. 34. expenses to be incurred in such repair shall be paid by
the party liable to repair as aforesaid; and it shall be lawful for any justice, upon the application of any person authorized in this behalf by the highway board, to summon the party liable to pay such expenses to appear before two justices at a time and place to be named in such summons, and upon the appearance of the parties, or in the absence of either of them, it shall be lawful for such justices to hear and determine the matter, and make such order (m), as well as to costs or otherwise, as to them may seem just.
(1) By 27 & 28 Vict. c. 101, s. 23, the words “the Highway Act, 1862," are substituted for “the Principal Act.” Consequently before any expenses can be recovered under this section an order for repair must have been made on the highway board under sect. 18. As already explained (supra, note (y), p. 102) no power is given to summon the party charged with the repairs when the order is made upon the board. He will, therefore, have had no means of showing cause against its being made, and the only opportunity of disputing his liability will occur when he is summoned to pay the expenses. Even then he has no right of appeal, so that he will in this respect be worse off than if proceedings had been taken against him under 5 & 6 Will. 4, c. 50, ss. 94, 95; for it can hardly be contended that the requirement of adjudication of the highway being out of repair “in the manner provided by the Highway Act, 1862,” gives power to summon him under sect. 18 of that Act, so as to give a right to dispute his liability under sect. 19.
It will be observed that the board have complete discretion as to whether they will or will not direct their surveyor to repair the road. If they decline to repair they must then proceed against the party liable to repair for the penalty and order under 5 & 6 Will. 4, c. 50, s. 94.
(m) There is no appeal against the order. An appeal is given by sect. 47 where any sum adjudged to be paid in respect of penalties or moneys recoverable as penalties exceeds £5. But that clearly does not apply to the present case. The appeal given by 27 & 28 Vict. c. 101, is only given to ratepayers against rates under sect. 37, or to waywardens or ratepayers against items of expense and expenditure of the board under sect. 38. An order under this section evidently does not fall within either of those categories.
35. Where any person or corporation is liable, by Act ’62, s. 35 reason of tenure of lands or otherwise, to repair any Highways
repairable highway situate in a highway district, the person or ratione corporation so liable may apply to any justice of the be made peace for the purpose of making such highway a
repairable highway to be repaired and maintained by the parish parish. in which the same is situate; and such justice shall thereupon issue summonses requiring the waywarden of such parish, the district surveyor, and the party so liable to repair such highway as aforesaid to appear before two or more justices in petty sessions assembled, and the justices at such petty sessions shall proceed to examine and determine the matter, and shall, if they think fit, make an order under their hands that such highway shall thereafter be a highway to be thereafter repaired and maintained by the parish, and shall in such order fix a certain sum to be paid by such person or corporation to the highway board of the district in full discharge of all claims thereafter in respect of the repair and maintenance of such highway (n); and in default of payment of such sum the board may proceed for the recovery thereof in the same manner as for the recovery of penalties or forfeitures recoverable under this Act (0): Provided always that when the sum so fixed to be paid in full discharge of all claims thereafter in respect of the repair and maintenance of such highway exceeds £50, the same, when received, shall be invested in the name of the highway board of the district in some public government securities, and the interest and dividends arising therefrom shall be applied by such board towards the repair and maintenance of the highways within the parish in which such highway is situate (P); but when such sum does not exceed £50 the same or any part thereof, at the discretion of such
het '62, s. 85. highway board, shall from time to time be applied by
such board towards the repair and maintenance of the
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.
(o) 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 ’82, s. 85. 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.
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.
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 empted execute his duties as such surveyor, and all provisions pike to applicable to the exemptions in the Act 3 Geo. 4, c. 126,