wardens shall be elected for such parish as a whole; and where such order is made, all the provisions herein contained in relation to parishes within the meaning of this Act shall be applicable to the parish formed by such combination. (f)

LEGAL OBJECTIONS TO FORMATION OF DISTRICT.

Rules as to Objections and Evidence.

8. No objection shall be made at any trial or in any legal proceeding to the validity of any orders or proceedings relating to the formation of a highway district, after the expiration of three calendar months from the date of the publication in the Gazette of the order under which the district is formed; and the production of a copy of the London Gazette containing a copy of the order of justices forming a highway district shall be receivable in all courts of justice, and in all legal proceedings, as evidence of the formation of the district and of the matters in the said order mentioned. (g)

the area for the maintenance of the highways and the maintenance of the poor coincident. But now, see the Amending Act 27 & 28 Vict. c. 101, s. 7, which enables the justices to combine one or more townships, &c., into a highway parish without combining the whole; and see also the Amending Act of 1878, s. 3, post, p. 181, which requires the justices, in forming highway districts, to have regard to the boundaries of existing rural sanitary districts.

An order combining townships, &c., under the above clause will not so alter the liability to maintain highways as to render the owners or occupiers of lands which have been exempt from highway rates liable to be rated to the repair of highways, see Reg. v. Heath, post, p. 154.

By the Poor Law Amendment Act, 1866 (29 & 30 Vict. c. 113, s. 18), "in all Statutes, except there shall be something in the context inconsistent herewith, the word 'parish' shall, among other meanings applicable to it, signify a place for which a separate poor rate is or can be made, or for which a separate overseer is or can be appointed." (f) With regard to townships or places, parts of which are included in local government districts, see the Public Health Act, 1875, s. 216 and the Local Government Act, 1861, referred to in that section, in note (z) on p. 129, post.

(g) In every Highway Board district, therefore, it will be advisable that a copy of the London Gazette, in which the order of justices is published, should be carefully preserved with the records of the Board. This, however, is not absolutely necessary, for see the provision on this subject in 27 & 28 Vict. c. 101, s. 12, post, p. 135.

Where orders of justices must be objected to within three months, it is sufficient to obtain a rule for a certiorari within that time.-Reg. v.

HIGHWAY BOARD.

Constitution of Highway Board.

9. There shall be enacted, with respect to the constitution of the Highway Board in each highway district, the provisions following; (that is to say,)

(1) The Highway Board shall consist of the waywardens elected in the several places within the district, in manner hereinafter mentioned, (h) and of the justices acting for the county and residing within the district: (i)

(2.) The Board shall be a body corporate, by the name of the Highway Board of the district to which it belongs, having a perpetual succession and a common seal, with a power to acquire and hold lands for the purposes of the Highway Acts, without any licence in mortmain: (j)

(3.) No act or proceeding of the Board shall be questioned on account of any vacancy or vacancies in their body: (k)

Lindsey JJ., 6 B. & S. 892, 35 L. J. M. C. 90, 13 L. T. (N. S.) 524, 12 Jur. (N. S.) 314.

(h) See s. 10, post.

(i) Where, however, a highway district is or hereafter becomes coincident with a rural sanitary district, the rural sanitary authority may now become the Highway Board for their district; and in that case waywardens will not be elected for the several places in the district, though resident justices, being ex-officio guardians (4 & 5 Wm. IV. c. 76, s. 38), will be members of the Board. See the definition of the word "county" in s. 2, ante, and the note thereon. Borough justices, as they do not act for the county, will not be qualified as members of the Highway Board. County justices who have merely a place of business within the district will not be considered as residing therein within the meaning of the enactment. According to Ross's Parliamentary Record" for 1864, p. 32, Sir George Grey, Secretary of State for the Home Department, stated, in reply to a question put to him in the House of Commons, that magistrates residing in places which were exempted from the operation of the Highway Act not ex-officio members of the District Board. But see the new provision as to the qualification of ex-officio waywardens in 27 & 28 Vict. c. 101, s, 29.

were

By 1 Mary, st. 2, c. 3, s. 8, no sheriff shall act as a justice of the peace during his shrievalty; consequently a justice of the peace who is sheriff cannot act as an ex-officio member of a Highway Board.

() As to the purchase of lands, see 27 & 28 Vict. c. 101, s. 53, post. (k) Vacancies can only exist amongst the elected waywardens or

(4.) No defect in the qualification or election of any person or persons acting as member or members of the Board or committee of a Board shall be deemed to vitiate any proceedings of such Board in which he or they have taken part in cases where the majority of members parties to such proceedings are duly entitled to act: (1)

(5.) Any minute made of proceedings at meetings of the Board or of committees of the Board, if signed by any person purporting to be the chairman of the Board or committee of the Board, either at the meeting of the Board or committee of the Board at which such proceedings took place, or at the next ensuing meeting of the Board or committee of the Board, shall be receivable in evidence in all legal proceedings without further proof; and until the contrary is proved every meeting of the Board or committee of the Board in respect of the proceedings of which minutes have been so made shall be deemed to have been duly convened and held, and all the members thereof to have been duly qualified: (6.) No member of a Board, by being party to, or executing in his capacity of member, any contract or other instrument on behalf of the Board, or otherwise lawfully exercising any of the powers given to the Board, shall be subject to be tried or prosecuted, either individually or with others, by any person whomsoever; and the bodies or goods or lands of the members shall not be liable to execution of any legal process by reason of any contract or other instrument so entered into, tried, or executed by them, or by reason of any other lawful act done by them in execution of any of the powers of the Board; and the members of the Board may apply any moneys in their hands for the purpose of indemnifying themselves against any losses, costs,

guardians, as the case may be, as all justices acting for the county and residing within the district are ex-officio members of the Board. As to the quorum of members, see proceedings of Highway Boards in the first sch. to 27 & 28 Vict. c. 101, post.

(1) This is a similar provision to that contained in the 5 & 6 Vict. c. 57, s. 13, with respect to guardians of poor law unions.

or damages they may incur in execution of the powers granted to them: (m)

10. The following regulations shall be observed with respect to the election of waywardens in highway districts: (0)

In every parish forming part of a highway district there shall be elected every year for the year next ensuing a waywarden, or such number of waywardens as may be determined by order of the justices: (p)

Such waywarden or waywardens shall be elected in every parish forming part of a highway district at the meeting and time and in the manner, and subject to the same qualification and the same power of appointment in the justices in the event of no election taking place, or in the event of a vacancy, at, in, and subject to which a person or persons to serve the office of surveyor would have been chosen or appointed if this Act had not passed: (q)

(m) This saves members of the Highway Board from personal responsibility, not only in respect of contracts and other instruments executed by them, but also in respect of all other lawful acts done by them in the execution of their powers.

(n) This clause, which directed that the rules in the schedule to the Act as to proceedings, &c., should be observed, is repealed by the Statute Law Revision Act, 1875, 38 & 39 Vict. c. 66, the schedule having been itself repealed by 27 & 28 Vict. c. 101, s. 27, so far as related to proceedings of Highway Boards, and another schedule enacted, which will be found at p. 176, post.

(0) No waywardens will be elected in a highway district of which the rural sanitary authority have become the Highway Board; see 41 & 42 Vict. c. 77, s. 4, post, p. 184.

(p) The order of justices here referred to is the order forming the highway district. (See s. 6, subsection 4, ante.)

(q) 1. As to the Meeting and Time of Appointment.-By 5 & 6 Wm. IV. c. 50, s. 6, the inhabitants of every parish maintaining its own highways, at their first meeting in vestry for the nomination of overseers of the poor, or, if there is no such meeting, at their usual place of public meeting, on or within fourteen days after the 25th March, in every year, are to elect one or more persons to serve the office of sur

The justices shall in their provisional order make provision for the election of a waywarden or waywardens in

veyor of the parish for the year then next ensuing. It is to be observed that no vestry meeting is required by law to be held for the nomination of overseers, who, by 54 Geo. III. c. 91, are to be appointed by the justices on the 25th day of March, or within fourteen days next after that day, in each year. The ordinary way of appointing overseers is by precept from the justices to the high constable to require the overseers to make out a list of persons in the parish liable to serve, from which the overseers are chosen by the justices.-Reg. v. Hoole, 2 L. T. (N. S.) 472, S. C. Nom. Reg. v. Lancashire JJ. 29 L. J. M. C. 214, shows that the justices may appoint overseers without the nomination of the vestry.

A doubt which had arisen with respect to the above-mentioned section (5 & 6 Wm. IV. c. 50, s. 6), as to whether a surveyor of highways could be appointed for a parish not maintaining any highway, is removed by 41 & 42 Vict. c. 77, s. 25, post, p. 211.

2. As to the Qualification.-By s. 7 of the 5 & 6 Wm. IV. c. 50, any person living within the parish, or any adjoining parish, and having an estate in houses, lands, tenements, or hereditaments, lying within such parish, in his own right or in right of his wife, of the value of £10 by the year, or a personal estate of the value of £100 (such person not living within the parish being willing to serve the office), or being an occupier or tenant of houses, lands, tenements, or hereditaments (whether resident within the parish or within any adjoining parish) of the yearly value of £20, is eligible to be elected a surveyor of the highways; but no person who is exempted by law from serving the office of overseer is compellable to serve the office of surveyor. By s. 42, sub-section 2, post, s. 9 of 5 & 6 Wm. IV. c. 50, as to the appointment of a paid surveyor, shall not apply to any parish within a highway district.

3. As to Justices' Power of Appointment.—By 5 & 6 Wm. IV. c. 50, s. 11, in case it shall appear on oath to the justices at a special sessions for the highways (or petty sessions, see 27 & 28 Vict. c. 101, s. 46, p. 165), that the inhabitants of any parish have neglected or refused to nominate and elect a surveyor or surveyors, or that the outgoing surveyor, except he had been directed by the inhabitants so to do, has delivered no statement of the name and residence of his successor (the provision as to the statement of the outgoing surveyor shall not apply to any parish within any district formed under the 25 & 26 Vict. c. 61; see s. 42, subsection 3, post), or that he is dead, or has ceased to possess the qualification or has become disqualified, or that he has neglected to act, or refused to carry into operation the duties imposed upon him, the justices are, by writing under their hands, at their next succeeding special sessions for the highways, to dismiss the surveyor, and to appoint any person whom they may think fit to be a surveyor of the parish till the next annual meeting. By s. 42, subsection 8, post, however, s. 45 of the 5 & 6 Wm. IV. c. 50, relating to the holding of special sessions for the highways, shall not apply to the Highway Board of any district formed under the 25 & 26 Vict. c. 61. Further with regard to special sessions, see 27 & 28 Vict. c. 101, s. 46, post. By 27 & 28 Vict. c. 101,