Power to contract for Materials for repairing Highways.

52. The Highway Board may and is hereby authorized to contract (w) for purchasing, getting, and carrying the materials required for the repair of the highways, and for maintaining and keeping in repair all or any part of the highways of any parish within their highway district, for any period not exceeding three years. (x)

(w) As to stamp duty on such contracts, see ante, p. 140.

As to this clause, see also 33 & 34 Vict. c. 73, s. 11, with reference to a turnpike road thrown upon a highway district.

(x) The following case arose out of the Act of 1862 :-In December, 1865, the defendants (the K. Highway Board) having jurisdiction under the Highway Act, 1862 (25 & 26 Vict. c. 61) over a district comprising, amongst other parishes, the parish of W., advertised for tenders for the supply of materials for repairing the roads in W. in 1866, in answer to which the plaintiff sent in a tender, which was accepted, whereupon a contract for such supply was entered into by him with the defendants. In January, 1866, the defendants approved their surveyor's estimate of the approximate amount of expenditure for the several parishes, and by their direction a call of £768 was made upon the parish of W., one moiety of which the parish paid in February, 1866, the other moiety, after a dispute as to the liability, being paid by them in 1867.

On the 24th March, 1866, the parish of W. passed a resolution, under sec. 41 of the Highway Act, 1862, adopting the Local Government Act, 1858; and the statutory requirements having been complied with, a notice signed by the Home Secretary appeared in the London Gazette on the 11th May, 1866, that at the expiration of two months from the passing of such resolution the said Act of 1858 would have the force of law within the parish of W. On the 26th July, 1866, the defendant received notice from the Local Board of the adoption by the latter parish of the Local Government Act, 1858.

Up to that date (26th July, 1866) the defendants continued to repair the W. roads with materials supplied by the plaintiff to their surveyor's order, just as if W. had not adopted or intended to adopt the Local Government Act, 1858, and without being requested by the W. Local Board to do such repairs. The amount of materials supplied by the plaintiff for 1866 exceeded the amount contemplated by the estimate and contract at the beginning of the year; but there was nothing unusual in that fact, inasmuch as for the previous years1864, 1865-the plaintiff, under contracts similar to the present one had supplied and been paid by the defendants for materials so supplied by him, in excess of the amounts estimated for those years.

In an action for goods sold and delivered, &c., the plaintiff sought to recover the price of the materials so supplied by him from the 1st January to 26th July, 1866, which he contended the defendants

8 & 9 Vict c. 18, and 23 & 24 Vict c. 106, incorporated.

53. A Highway Board for the purpose of improving the highways within their district may purchase such lands

were liable to pay, inasmuch as he had no notice of W. ceasing to be a member of the K. highway district, or that he was to discontinue supplying the materials; but, on the contrary, he continued to supply to order through the surveyor of the defendants materials which the defendants used; but, in any event, they were liable to pay him up to the 24th May, until which date the plaintiff alleged the parish of W. continued to be a member of the K. Highway Board. The defendants denied their liability, on the ground that by adopting the Local Government Act, 1858, on the 24th March, W. thenceforth ceased to form part of the K. highway district, and the defendants had no longer any power to repair roads in that parish, or to make calls on W. in order to pay the plaintiff; and that the plaintiff could not recover from the defendants for any portion of the materials supplied for W. subsequently to the 24th March.

Upon a special case, stating all the above facts, it was—

Held by the Court of Exchequer (Martin and Bramwell, BB.) that the plaintiff was entitled to recover from the defendants the whole amount of his claim, and that the defendants had not, in repairing the roads in W. between the 24th March and the 24th May, or between the 24th May and the 26th July, acted ultra vires, so as to prevent the plaintiff from recovering the price of the materials so supplied by him during either of those periods.

Per Martin, B.-It is a question of fact; and on the facts stated the court should find a verdict for the amount claimed as for goods bona fide supplied to the order of a person authorized by the defendants to give it, and used for their purposes.

66

Per Bramwell, B.-The words "upon such adoption being made," in section 41 of the Highway Act, 1862, must mean "upon such adoption coming into operation;" and therefore the resolution of the parish of W., on the 24th March, to adopt the Local Government Act, 1858, did not amount to an adoption of it, nor did the parish cease to form part of the K. highway district within that section until the expiration of two months from such date; and although on such adoption the parish ceased to form part of the district, yet it is by sec. 41 to be "subject to the payment of any contribution due from the parish to the Board at the time of such adoption." The defendants, therefore, were bound to repair the W. roads, if not to the end of the year, at least to the extent of the funds they had received for that purpose.

Quare. Whether, if fresh funds had been necessary for the repairs after the 28th May, the Board would, under the circumstances, have had power to raise them in the way prescribed by sec. 21 of the Highway Act, 1862.-Driver v. Kingston Highway Board, 24 L. T. (N. S.) 480.

A Highway Board may make and enforce a contract to allow a

or easements relating to lands as they may require; (y) and “The Lands Clauses Consolidation Act, 1845," and the Act amending the same passed in the Session of the twenty-third and twenty-fourth years of the Reign of Her present Majesty, chapter one hundred and six, shall be incorporated with this Act, with the exception of the clauses relating to the purchase of land otherwise than by agreement. (z)

In the construction of this Act and the said incorporated Acts this Act shall be deemed to be the Special Act, and the Board shall be deemed to be the promoters of the undertaking, and the word "land" or "lands" shall include any easement in or out of lands.

gas company to open a highway on making a certain payment to the Board, see Edgware Highway Board v. Harrow District Gas Co., ante, p. 99.

(y) By 25 & 26 Vict. c. 61. s. 9, subsection 2, Highway Boards may acquire and hold lands for the purposes of the Highway Acts without licence in mortmain.

(z) The provisions of these Acts are too voluminous to be conveniently included in this work. They will be found in extenso, together with the decisions of the Courts on the various sections, in Glen's "Law of Railways."

FIRST SCHEDULE.

PROCEEDINGS OF HIGHWAY BOARDS.

(1.) The Board shall meet for the despatch of business, and shall from time to time make such regulations with respect to the summoning, notice, place, management, and adjournment of such meetings, and generally with respect to the transaction and management of business, including the quorum at meetings of the Board, as they think fit, subject to the following conditions:(a.) The first meeting after the formation of the district shall be held at the time and place fixed by the order of the justices in that behalf; (a)

(b.) One ordinary meeting shall be held in each period of four months, and of such meetings one shall be held on some day between the seventh and fourteenth days of April; (b)

(c.) An extraordinary meeting may be summoned at any time, on the requisition of three members of the Board, addressed to the Clerk of the Board;

(a) See 27 & 28 Vict. c. 101, s. 10, ante, and note to 25 & 26 Vict. c. 61, s. 15, as to the board-room of the Highway Board. By 26 Vict. c. 17, s. 6, re-enacted in the fifth schedule to the Public Health Act, 1875, 38 & 39 Vict. c. 55, “where any local government district or any other place is surrounded by or adjoins a highway district constituted under the Highway Acts, such first-mentioned district or other place shall, for the purpose of any meeting of the Highway Board, be deemed to be within such highway district."

Where the justices by their final order fixed the first day of meeting of the Highway Board for the Thursday after the 25th March, and no day was specially named for the election of waywardens, and, according to the custom of the parishes in the district, it had been usual to elect highway surveyors on the 25th March, or within two or three days thereafter, it was held that the order was not bad because it did not provide for fourteen days elapsing after the 25th March, but provided only for five clear days, though it would have been better to give more time.-Reg. v. Lindsey, JJ., 6 B. & S. 892, 12 Jur. (N. S.) 314, 35 L. J. M. C. 90, 13 L. T. (N. S.) 524.

(b) The meeting is to be held between these days; both, therefore, must be excluded.

(d.) The quorum to be fixed by the Board shall consist of not less than three members;

(e.) Every question shall be decided by a majority of votes of the members voting on that question;

(f.) The names of the members present at a meeting shall be recorded.

(2.) The Board shall at the first meeting, and afterwards from time to time at their first meeting after each annual appointment of members of the Board as hereafter mentioned, appoint one of their members to be chairman, and one other of their members to be a vice-chairman for the-year following such choice. (3.) If any casual vacancy occur in the office of chairman or vice-chairman, the Board shall, as soon as they conveniently can after the occurrence of such vacancy, choose some member of their number to fill such such chairman or vice-chairman se elected as last aforesaid shall continue in office so long only as the person in whose place he may be SO elected would have been entitled to continue if such vacancy had not happened.

vacancy; and every

(4.) If at any meeting the chairman is not present at the time appointed for holding the same, the vice-chairman shall be the chairman of the meeting; and if neither the chairman nor vice-chairman shall be present, then the members present shall choose some one of their number to be a chairman of such meeting.

(5.) In case of an equality of votes at any meeting the chairman for the time being of such meeting shall have a second or casting vote. (c)

and

(6.) All orders of the Board for payment of money, all precepts issued by the Board, shall be deemed to be duly executed if signed by two or more members of the Board authorized to sign them by a resolution of the Board, (d) and countersigned by the clerk; but it shall

(c) The chairman, if he intends to vote on the question before the Board, should give his vote immediately after he has counted the votes of the other members present, and before he declares from the chair the numbers voting on each side of the question. If, after counting them, he finds that the votes are equal, he should give a second or casting vote.

(d) The most convenient course will be for the Board, at their first

N