Duties of Treasurer.

14. The treasurer of each Highway Board shall receive and hold to the account of such Board, all moneys paid to or for the use of such Board, and shall make payments thereout under orders of such Board, and shall once in every three months, on or at such days or times as the Board may direct, or oftener if required by the Board, make up an account of all moneys received and paid by him, and deliver the same to the clerk of the Board.

Duties of Clerk.

15. The clerk of every Highway Board shall in person, or by such deputy as may be allowed by such Board, attend all meetings of the Board, and shall conduct the correspondence thereof, and enter and keep, in books to be provided for the purpose, notes, minutes, or copies, as the case may require, of the meetings, acts, orders, resolutions, proceedings, and correspondence of such Board, and shall keep all books, papers, and documents committed to his charge, and shall perform all such other duties as the Board may direct. (e)

Duties of District Surveyor.

16. The district surveyor shall act as the agent of the Board in carrying into effect all the works and performing all the duties by this Act required to be carried into effect or to be performed by the Board, and he shall in all re

(e) The Act omits to give the Highway Board express authority to provide a board-room for their meetings, or offices for the transaction of the business of the district. The clerk, it is presumed, will provide his own office in consideration of his salary; and the use of a boardroom may be paid for under s. 20, post, and charged to the district fund as a necessary expense incurred by the Board for the common use or benefit of the several parishes within the district. It seems doubtful to what extent the powers given to Highway Boards as surveyors of the highways by 5 & 6 Wm. IV. c. 50, ss. 18 & 19, will be transferred to the new Highway Boards, especially the power given by the latter section as to the purchase of ground or premises for the keeping of the implements and materials necessary for the repair of the highways, or for preparing the same. As to the Deputy Clerk, see note to section 12, ante, p. 96.

spects conform to the orders of the Board in the execution of his duties, and the assistant surveyor, if any, shall perform such duties as the Board may require, under the direction of the district surveyor.

WORKS AND DUTIES OF BOARD.

Board to Maintain Highways.

17. The Highway Board shall maintain in good repair the highways within their district, and shall, subject to the provisions of this Act, as respects the highways in each parish within their district, perform the same duties, have the same powers, and be liable to the same legal proceedings as the surveyor of such parish would have. performed, had, and been liable to if this Act had not passed. (f) It shall be the duty of the district surveyor

(f) The duties and powers of the surveyor in relation to the management of the highways will be found fully set out in Glen's "Highway Laws."

A Highway Board may make and enforce an agreement with a gas company that they may dig up highways for the purpose of laying down gas pipes, and pay at per yard for the surface broken. Declaration-that it was agreed between plaintiffs (a Highway Board) and defendants, that if plaintiffs would allow defendants to open a highway within the jurisdiction of plaintiffs, defendants would make good the surface and pay one shilling per yard of the highway opened, that the licence was given and acted upon, and neither the surface made good by the defendants, nor the one shilling per yard paid :-Held, on demurrer, a good declaration; that the forbearance of plaintiffs to interfere, and their submission to the risk of having to repair the highway themselves, amounted each of them to a sufficient consideration for the agreement, and, further, that the consideration was not illegal, as the performance of the agreement by defendants did not necessarily involve a nuisance to the highway.-Edgware Highway Board v. Harrow District Gas Company, L. R. 10 Q. B. 92; 44 L. J. M. C. 16, 31 L. T. (N. S.) 402.

Where a person lays down water pipes under a highway without the permission of the owners of the soil of the highway, a court of equity will, at the instance of one of such owners, grant a mandatory injunc tion restraining the trespasser from allowing the pipes to remain there, although the work had been completed before the filing of the bill, and will not require the plaintiff in the first instance to establish his right by an action at law.-Goodson v. Richardson, 30 L. T. (N. S.)

142.

The omission to repair a bridge was held to come within the words

to submit to the Board at their first meeting in every year, (g) an estimate of the expenses likely to be incurred during the ensuing year (h) for maintaining and keeping in repair the highways in each parish within the district of the Board, and to deliver a copy of such estimate as approved or modified by the Board so far as the same relates to each parish to the waywarden of such parish.

Proceedings where Roads are out of Repair.

18. Where complaint is made to any justice of the peace (j) that any highway within the jurisdiction of the Highway Board is out of repair, the justice shall issue two summonses, the one addressed to the Highway Board and the other to the waywarden of the parish liable to the repair of such highway, (k) requiring such Board and way warden to appear before the justices at some petty sessions, in the summons mentioned, to be held in the division where such highway is situate; (1) and at such

“anything done in pursuance of or under the authority of this Act," in 5 & 6 Wm. IV. c. 50, s. 109, and therefore an action against a Highway Board for such non-repair commenced after the three months limited by that section was too late.-Holland v. Northwich Highway Board, 31 L. T. (N. S.) 137.

(g) The first meeting in every year will be that which is held after the annual election of waywardens. See section 10, ante, and note thereon.

(h) That is to say, during the year which is to follow such first meeting of the Board, or which shall have then commenced.

By 41 & 42 Vict. c. 77, s. 9, post, p. 189, the accounts of every Highway Board shall be made up in such form as the Local Government Board may prescribe, and balanced to the 25th March in every year. By s. 7 of the same Act, the expenses are to be charged on the common fund and not on the parishes separately.

(j) Complaint may also be made to the county authority, that is, the justices at quarter sessions, that a Highway Board, surveyor of highways, or an urban sanitary authority other than the town council of a borough having a separate court of quarter sessions, has made default in maintaining or repairing all or any of the highways within their jurisdiction, and in such case the performance of the duty of the defaulting authority may be enforced in the manner provided by 41 & 42 Vict. c. 77, s. 10, post, p. 196.

(k) With regard to the repair of turnpike roads in certain cases by the Highway Board, see 27 & 28 Vict. c. 101, s. 22 and note (r) thereon, post, p. 142.

(1) By s. 38, post, no justice of the peace shall act as such in any matter in which he has already acted as a member of the Highway

petty sessions, unless the Board undertake to repair the road to the satisfaction of the justices, or unless the waywarden deny the liability of the parish to repair, (m) the justices shall direct the Board to appear (n) at some subsequent petty sessions to be then named, and shall either appoint some competent person to view the highway, and to report to them on its state at such other petty sessions, or fix a day, previous to such petty sessions, at which two or more of such justices will themselves attend to view the highway.

At such last-mentioned petty sessions, if the justices are satisfied, either by the report of the person so appointed, or by such view as aforesaid, that the highway complained of is not in a state of complete repair, it shall be their duty to make an order on the Board limiting a time for the repair of the highway complained of; (0) and if Board, and in which the decision of such Board is appealed against. As, however, proceedings under this section are not in the nature of an appeal against any decision of the Highway Board, it would seem that a justice who is a member of the Board is not disqualified from acting in proceedings to compel the repair of a highway within the district. It will be seen (s. 9, subsection 1, ante) that all justices acting for the county and residing within the district are members of the Highway Board; and as the proceedings under s. 18 are to take place at the petty sessions held in the division where the highway which is out of repair is situated, it must necessarily follow that all the justices for the county acting at that petty sessions will be members of the Highway Board. But, now, see the provision in 27 & 28 Vict. c. 101, s. 46. (m) Section 19 provides for the case in which the liability to repair is disputed. Under the 5 & 6 Wm. IV. c. 50, s. 95, the surveyor on behalf of the parish denied the duty or obligation to repair.

Where, under 25 and 26 Vict. c. 61, s. 18, 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 Queen's Bench will review the finding of the justices; and if satisfied that their decision was wrong on the question of highway or no highway, the Court will quash the order of justices directing the Highway Board to repair the highway.-Reg. v. Odell, 34 J. P. 534; and see Reg. v. Farrar, post, p. 103.

(n) By s. 9, subsection 2, ante, the Highway Board is incorporated; but the latter part of the present section enables the Board to appear before the justices at petty sessions by their district surveyor or clerk, or any member of the Board.

(0) The justices must be satisfied either upon their own view, or upon the report of their viewer, that the highway is not in a state of complete repair. They are not bound to act upon the report of their viewer, but may act upon their own discretion in making an order on the Highway

such highway is not put in complete and effectual repair by the time limited in the order, the justices in petty sessions shall appoint some person to put the highway into repair, and shall by order direct that the expenses of making such repairs, together with a reasonable remuneration to the person appointed for superintending such repairs, and amounting to a sum specified in the order, together with the costs of the proceedings, shall be paid by the Board; and any order made for the payment of such costs and expenses may be removed into the Court of Queen's Bench, (p) in the same manner as if it were an order of general or quarter sessions, and be enforced accordingly. (g)

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. (r)

The Highway Board may appear before the justices at petty sessions by their district surveyor or clerk, or any member of the Board. (8)

When Obligation to repair is disputed.

19. When, on the hearing of any such summons respecting the repair of any highway, the liability to repair is

Board.-Reg. v. Wilts, JJ., 8 Dowl. P. C. 717. S. C. nom. Reg. v. Earl Radnor, 4 Jur. 460.

(p) Now the Queen's Bench Division of the High Court of Justice. (9) That is by certiorari, which must be applied for within six months after the date of the order.

(r) As to the expenses of the Board, see 27 & 28 Vict. c. 101, s. 32, et. seq., post, p. 149.

(8) Under's 18 of 25 & 26 Vict. c. 61, two summonses are to be issued; one to the Highway Board, and one to the waywarden of the parish, requiring both to appear at the sessions. The Board will appear by their district surveyor, clerk, or by any member of the Board; and the waywarden must appear to represent the parish, though it seems that he may appear for the Board also. However,.when the parties are before the justices under s. 18, the Board must undertake to repair the road, or submit to proceedings under the section. Under ss. 18 & 19 it is the waywarden alone that can deny the liability of the parish to repair-The Board cannot do so. If the waywarden does not deny the liability of the parish, and the Board will not undertake to repair, then the justices are to proceed as directed by s. 18.