Extent of Powers of Justices.

17. All powers and jurisdictions vested in justices by the "Highway Act, 1862," and this Act, or either of 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.

Definition of " Provisional and Final Orders."

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

MISCELLANEOUS AMENDMENTS.

Appointment and Vote of Waywardens.

19. Every waywarden, before taking his seat as a member of a Highway Board, shall produce (h) a certificate 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 (i), be signed by the justices making the appointment.

(f) See section 12.

(g) See 25 & 26 Vict. c. 61, s. 6.

(h) The Act does not state to whom the certificate shall be produced. The waywarden should, however, take it with him to the first meeting of the Highway Board that he attends after his election. A fresh certificate will be requisite after each annual election or appointment.

() As to the appointment of a waywarden by the justices, see s. 11, ante, and the notes thereon.

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

Power to Waywardens to contract for supply or cartage of

Materials.

20. Whereas doubts are entertained whether the fortysixth section of the Highway Act of 1835 applies to a highway 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. (k)

Notwithstanding anything contained in the Act of the Session of the twenty-sixth and twenty-seventh years of the Reign of her present Majesty, chapter sixty-one, (1) or in any other Act, any waywarden may contract for the supply or cartage of materials within the parish for which

(j) But if he is chairman of the Board, he will have a second or casting vote on an equality of votes. See the first schedule, par. (5), post. (k) The provision of 5 & 6 Wm. IV. c. 50, s. 46, which is here excepted, empowers surveyors of highways to contract for purchasing and carrying materials for repair of the highways, and prohibits them under a penalty from being concerned for their own benefit (unless under a licence from justices) in any contract, &c., in connection with the highways.

(1) By 26 & 27 Vict. c. 61, reciting that it is expedient that waywardens appointed under an Act passed in the last session of Parliament, intituled "An Act for the better Management of Highways in England," should be prevented from contracting for any works to be executed within their own districts, it is enacted—

"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 ten pounds, with full costs of 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 other 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 (i.e., in the High Court of Justice), if the same shall amount to above fifty pounds, 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.

HIGHWAY ACT, 1864,

he is waywarden, (m) with the licence of two justices assembled at petty sessions, such licence 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. (n)

Provisions for discontinuance of Maintenance of unnecessary
Highways.

21. When any Highway Board consider any highway unnecessary for public use, (o) they may direct the district

"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.'

It will be noticed that this enactment only goes to the prohibition of a waywarden contracting for the repair of roads or the execution of any other work connected with the highways within his parish or district; it does not restrain him from selling goods of any kind to the Highway Board for his own profit, nor does it appear to prohibit a waywarden from letting his teams to the Highway Board for the cartage of materials. The prohibition in the Highway Act, 5 & 6 Wm. IV. c. 50, s. 46, is against the surveyor, for his own profit, contracting or bargaining "for work or materials to be made, done, or provided upon, for, or on account of any of the highways or other works under his care or management."

It would seem that under this enactment the money paid by the Highway Board under a prohibited contract may be recovered by them from the contractor, whether the Highway Board paid the money 'knowingly" or not.

By 33 & 34 Vict. c. 97, sch. (tit. agreement), agreements or contracts made or entered into pursuant to the Highways Acts for or relating to the making, maintaining, or repairing highways are subject respectively to a stamp duty of sixpence.

(m) The 26 & 27 Vict. c. 61, s. 1 supra, note (7), prohibits a waywarden contracting, &c., in respect of work to be executed within the parish for which he is elected waywarden, or within any other parish in the same district. It will be seen, however, that the present Act only removes the prohibition (with the licence of justices) within the parish for which he is waywarden, and that he will still be disqualified for contracting for work within any other parish in the same district. (n) As to obtaining materials for repair of a turnpike road thrown upon a highway district, see 33 & 34 Vict. c. 73, s. 11, post.

By 33 & 34 Vict. c. 32, s. 11, no person shall be required to take out a licence under the 32 & 33 Geo. III. c. 14, for any horse or mule kept by him solely for the purpose of husbandry on account of such horse or mule being used or employed in drawing materials for the repair of roads and highways of the parish in which he is a rated occupier, and whether for hire or otherwise.

(o) A Highway Board, or any other authority liable to keep any highway in repair, may now apply to a court of summary jurisdiction,

surveyor to apply to two justices to view the same, and thereupon the like proceedings shall be had as where application is made under the "Highway Act, 1835," to procure the stopping up of any highway, (p) save 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 application to be paid as they may see fit.

under 41 & 42 Vict. c. 77, s. 24 (post p. 208), for an order declaring that so much of the highway as lies within the petty sessional division of the court is unnecessary for public use, and ought not to be repaired at the public expense; and on such order being made the expenses of repairing such highway will cease to be defrayed out of any public rate.

(p) As regards the stopping up of unnecessary highways, see 5 & 6 Wm. IV. c. 50, ss. 84-93, in Glen's "Highway Laws," second edition. The words "and thereupon the like proceedings shall be had as where application is made under the Highway Act, 1835," confer a power of appeal to quarter sessions in like manner as by s. 88 of the 5 & 6 Wm. IV. c. 50.—Reg. v. Surrey JJ. L. R. 5 Q. B. 87, 466, 39 L. J. M. C. 49. 145, 34 J. P. 199. A road which branches from and then rejoins a highway stopped up or diverted, and which has no other means of access than through such highway, ceases to be a highway, though not mentioned in the order of sessions.-Bailey v. Jamieson, 34 L. T. (N. S.) 62.

Highway Board may contract to repair Highways for the repair of which other Parties are liable.

22. The Highway Board of any district may from time to time contract (q) for any time not exceeding three years with any person or body of persons, corporate or unincorporate, to repair any highways, turnpike roads, (r) or

(q) By 28 & 29 Vict. c. 96, s. 30 (repealed by 33 & 34 Vict. c. 99), and again by 33 & 34 Vict. c. 97, sch., no contract to be made or entered into pursuant to the Highway Acts for or relating to the making, maintaining, or repairing of highways shall be chargeable with any higher stamp duty than sixpence.

(r) Doubts having arisen as to whether Highway Boards were liable to contribute to the repair of turnpike roads under 4 & 5 Vict. c. 59 (post, p. 258), and the continuing Acts, it is enacted by 26 & 27 Vict. c. 94, s. 1, as follows: Whereas doubts are entertained whether Highway Boards established under the Act of Sessions of the twenty-fifth and twenty-sixth years of the reign of her present Majesty, chapter sixtyone, are liable to contribute to the repair of turnpike roads in pursuance of the Act of the Session of the fourth and fifth years of the reign of her present Majesty, chapter fifty-nine, and the Acts continuing the same: Be it enacted, That where any turnpike road is situate in a parish that is included in a highway district, an order may be made on the Highway Board of the district to contribute to the repair of that road under the same circumstances under which an order for the same purpose may be made on the parish surveyor in pursuance of the said Act of the Session of the fourth and fifth years of the reign of her present Majesty, chapter fifty-nine, as continued as aforesaid; and for the purposes of the said last-mentioned Act, the Highway Board shall be deemed, to be substituted for the parish surveyor, and any rate leviable in pursuance of a precept of the Board for the rate or assessment levied or to be levied by the said surveyor as in the said Act mentioned, and any moneys paid by the Board for the purposes or in pursuance of the last-mentioned Act, shall be deemed to be expenses incurred by the Board in respect of the repair of highways in the parish in which the turnpike road is situate for which contribution is required, and parish, as used in this section, shall mean any place in a highway district that returns a waywarden or waywardens to the Board of that district; and it is hereby declared that 'Local Act,' as used in the seventh section of the said Act of the twenty-fifth and twenty-sixth years of the reign of her present Majesty, chapter sixty-one, does not include Turnpike Acts." The part of the above section in italics is amended by 34 & 35 Vict. c. 115, s. 15 (post, p. 270), and further provision made. Now by 35 & 36 Vict. c. 85, s. 14 (post, p. 275), a Highway Board may voluntarily repair turnpike roads at the cost of the district fund.

By 30 & 31 Vict. c. 121, s. 3, the trustees or commissioners of a turnpike road which shall hereafter become an ordinary highway shall, as soon as may be after the expiration of their trust, distribute the balance of any moneys remaining in their hands amongst the parishes