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, (b) 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, or rectify any account appealed against.

Costs of Appeal.

43. If the appellant is successful, the costs shall, unless the court otherwise orders, be paid by the Board, and shall

(b) A feigned issue is a proceeding whereby an action is supposed to be brought by consent of the parties to determine some disputed right, without the formality of pleading, saving thereby both time and expense. It may be ordered either by a court of law or equity, or by a judge under the Interpleader Act, 1 & 2 Wm. IV. c. 58. The 8 & 9 Vict. c. 109, s. 19, after reciting that many important questions are now tried in the form of feigned issues, by stating that a wager was laid between two parties interested in respectively maintaining the affirmative and the negative of certain propositions, but that such questions may be as satisfactorily tried without such form, enacts, that in every case where any court of law or equity may desire to have any question of fact decided by a jury, it shall be lawful for such court to direct a writ of summons to be sued out by such person or persons as such court shall think ought to be defendant or defendants therein, in the form set forth in the second Schedule to the Act annexed, with such alterations or additions as such court may think proper; and thereupon all the proceedings shall go on and be brought to a close in the same manner as is now practised in proceedings upon a feigned issue.

The second Schedule of the 8 & 9 Vict. c. 109 is as follows:"In the Court of Queen's Bench [Common Pleas, or Exchequer, or in any inferior court as the case may be]. (Now, In the High Court of Justice, Queen's Bench, Common Pleas, or Exchequer Division, or in any inferior court.)

"Middlesex to wit [or such other county as may be directed]. Whereas A. B. affirms, and C. D. denies [here state fully the fact or facts in issue] and the Lord Chancellor [or such other court, &c.] is desirous of ascertaining the truth by the verdict of a jury, and both parties pray that the same may be inquired of by the country. Now let a jury," &c.

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. (c)

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, (c) 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." (d)

Jurisdiction as to Districts in different Counties.

44. Places situate in different counties, and places situate

(c) It is enacted by the 41 & 42 Vict. c. 77, s. 7 (post, p. 187), that all expenses incurred by any Highway Board in maintaining and keeping in repair the highways of each parish within their district, and all other expenses legally incurred by such Board, shall, notwithstanding anything contained in the Highway Acts, on and after the 25th day of March, 1879, be deemed to have been incurred for the common use or benefit of the several parishes within their district, and shall be charged on the district fund. The effect of this amendment on s. 43 is not free from doubt, but it would appear that where the appellant is successful, the costs must be paid out of the district fund, and so charged on the whole district. But in the case of a waywarden being appellant and being successful, the costs are not incurred by the Board, and though the expenses of the repair of roads in the parish will not be charged on the parish, the words, "in the same manner as if they were expenses incurred in repairing the roads in each parish," may perhaps be treated as repealed by the new Act, so that the costs may still be charged to the parish in addition to their ordinary contribution; at any rate, the new Act does not prevent the Highway Board from giving credit for the amount of the costs to the parishes other than that to which the appellant waywarden belongs, in the same manner as if it formed part of their contributions to the district fund.

(d) See 25 & 26 Vict. c. 61, s. 47, ante.

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 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 were situate in such county. (e)

SUPPLEMENTAL PROVISIONS.

In case of default of Highway Board appointing Officers.

45. If the Highway Board of a district make default in appointing a treasurer, clerk, and district surveyor, or any of such officers, in pursuance of the "Highway Act, 1862," (f) 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.

Jurisdiction of Justices in Petty Sessions.

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

(e) It is only with regard to appeals against accounts that this provision applies.

(f) See 25 & 26 Vict. c. 61, s. 12, ante.

exercise in special sessions; (g) 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. (9)

Power of Highway Board to make Improvements and borrow Money for the same, but previously to cause an Estimate to be made.

47. A Highway Board may make such improvements (h) as are hereinafter mentioned in the highways within their jurisdiction, and may, with the approval of the justices in general or quarter sessions assembled, borrow money for the purpose of defraying the expenses of such improvements: 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.

The notice shall state the following particulars:

(1.) The nature of the work, the estimated amount of expense to be incurred, and the sum proposed to be borrowed:

(2.) The parish or parishes within the district by which the sum borrowed and the interest thereon is to be paid, and in case of more parishes than one being made liable to pay the principal and interest the annual amounts to be contributed by each parish towards the payment thereof: (i)

(g) As regards the holding of special sessions for the highways, see 5 & 6 Wm. IV. c. 50, s. 45, in Glen's "Treatise on the Law of Highways," second edition.

The justice may not act as such in any matter in which he has already acted as a member of the Highway Board, and in which the decision of the Board is appealed against; see 25 & 26 Vict. c. 61, s. 38, and note, ante, p. 115.

(h) "Improvements" are defined by s. 48, post, and the abolition of turnpike tolls is within the meaning of the term as used here and in ss. 48 & 50; see 35 & 36 Vict. c. 85, s. 15, and 36 & 37 Vict. c. 90, s. 16, post.

(2) Since all moneys borrowed after the 25th of March, 1879, are by

(3.) The number of years within which the principal moneys borrowed are to be paid off, not exceeding

twenty years, and the amount to be set apart in each year for paying off the same:

(4.) The sessions at which the application is to be made. Notice shall be given as follows:

(1.) By transmitting a copy to the Clerk of the Peace for the county or division:

(2.) By placing a copy of each notice for three successive Sundays on the church door of every church (j) of the parish or parishes on behalf of which such works are to be done, or, in case of any place not having a church, in some conspicuous position in such place. (k)

Upon the hearing of the application any person or persons may oppose the approval of the justices being given, and it shall be lawful for the justices to give or withhold their approval, with or without modification, as they think just.

All moneys borrowed in pursuance of this Act, together with the interest thereon, shall be a first charge on the highway rates of each parish liable to contribute to the payment thereof, after paying the sums due to the Highway Board on account of the district fund, in the same manner, so far as the creditor is concerned, as if the money had been borrowed on account of each parish alone; and the sums necessary to repay the said borrowed moneys, with interest, shall in each such parish be recoverable in the same manner as if they were expenses incurred by the Board in keeping in repair the highways of that parish. (1)

41 & 42 Vict. c. 77, s. 8, to be charged on the district fund, and not on the highway rates of the separate parishes, the notices relating to the borrowing of such moneys should enumerate all the parishes in the district.

This must be construed as referring to the Established Church, Ormerod v. Chadwick, 16 M. & W. 367, and Ex parte Warblington, 18 Jur. 494.

(k) As for instance a dissenting chapel or other public building or place.

(1) The portion of the above clause which is printed in italics will not apply to moneys borrowed after the 25th of March, 1879, for by the 41 & 42 Vict. c. 77, s. 8 (post, p. 189), all moneys borrowed by a Highway Board after that date shall be charged on the district fund. This provision, however, is not to affect the security, chargeability, or repayment of any moneys borrowed before the date above-mentioned.