Power to appeal to Quarter Sessions against items of Expense and Expenditure, &c.

38. Where any waywarden of a highway parish of a district, or any ratepayer of such parish, feels aggrieved in respect of the matters following:

(1.) In respect of any order of the Highway Board for the repair of any highway in his parish on the ground that such highway is not legally repairable by the parish, (n) or in respect of any other order of the Board on the ground that the matter to which such order relates is one in regard to which the Board have no jurisdiction to make an order; (2.) In respect of any item of expense charged to the separate account of his parish on the ground that such item of expense has not in fact been incurred or has been incurred in respect of a matter upon

special or adjourned session shall for the aforesaid purpose have all the powers of amending or quashing any such rate so objected to of any parish or other district within their division, and likewise of awarding costs to be paid by or to any of the parties, and of recovering such costs which any court of quarter sessions of the peace has upon appeals from any such rate, except as is herein excepted. Provided always, that no order of the said justices shall be removed by certiorari or otherwise into His Majesty's courts of record at Westminster. Provided also, that nothing in this Act contained shall be construed to deprive any person or persons of the right to appeal against any rate to any court of general or quarter sessions. Provided also, that no order of the said justices in special session shall be of any force pending any appeal touching the same subject-matter to the court of general or quarter sessions of the peace having jurisdiction to try such appeal, or in opposition to the order of any such court upon such appeal."

(n) Under this provision, in cases where the Highway Board make an order for the repair of any highway, the liability of the parish to the repair of which is in dispute, the validity of the order may be questioned on appeal. It is the converse of the case where the parish is indicted for non-repair of a road, and disputes that the road is a highway repairable by the parish. Now if the Board improperly undertake the repair of a highway at the expense of the ratepayers, they will do so at the risk of an appeal. It is, however, difficult to see what "order" the Board could make in the case. Probably the word "order" may be read "direction." Apparently, if the district surveyor should repair the highway without any special order of the Board, an appeal would not lie; but notice the limitation in s. 39 (1) as to the time of appeal.

which the Board have no authority by law to make any expenditure whatever; (0)

(3.) In respect of any item of expenditure charged to the district fund on the ground that such item of expense has not in fact been incurred, or has been incurred in respect of a matter upon which the Board have no authority by law to make any expenditure whatever; (4.) In respect of the contribution required to be made by each parish to the district fund on the ground that such amount, when compared with the contribution of other parishes in the district, is not according to the proportion required by this Act; (p) he may, upon complying with the conditions hereinafter mentioned, (q) appeal to the court of general or quarter sessions (r) having jurisdiction in the district; but no appeal shall be had in respect of any exercise of the discretion of the Board in matters within their discretion; and no appeal shall be had except in respect of the matters and upon the grounds herein before mentioned. (8)

Conditions of Appeal to General or Quarter Sessions.

39. No appeal shall be entertained by any court of general or quarter sessions in pursuance of this Act unless the following conditions have been complied with: (1.) Notice of the intention of appeal must be served by the appellant on the clerk of the Highway Board in the case of an appeal against an order within two months after the order, (t) and in the case of an

(0) All expenses legally incurred by a Highway Board, save in certain exceptional cases, will after the 25th March, 1879, be charged to the district fund, and not to the separate accounts of the parishes; see 41 & 42 Vict. c. 77, s. 7. post, p. 187.

(p) As to such proportion, see s. 32, ante.

(q) See s. 39, post.

(r) Probably the next practicable sessions is intended.

It will be seen, therefore, that there will be no appeal against excessive expenditure in respect of a matter in which the Board has authority by law to make some expenditure.

(t) In general the ratepayers would know nothing of the making of the order; therefore the waywarden must look after the interests of his parish in this respect.

appeal in respect of any item of expense or contribution within one month after the statement of the account of the Board has been sent to each member of the Board as herein before mentioned: (u) (2.) The notice must state the matter appealed against, and the ground of the appeal:

On the receipt of the notice the Board may serve a counter notice on the appellant, requiring him to appear in person or by his agent (v) at the next meeting of the Board and support his appeal. On hearing the appellant the Board may rectify the matter complained of, (w) and if they do so to a reasonable extent, (x) and tender to the pellant a reasonable sum for the costs of his attendance, it shall not be lawful for the appellant to proceed with his appeal. In any other case the appellant may proceed with his appeal, and the reasonable costs of his attendance on the Board shall be deemed part of the costs of the appeal.

Power to refer Case to Arbitration.

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40. If at any time after notice of appeal has been given it appears to the court of general or quarter sessions, on the application of either party in the presence of or after notice has been given to the other party, (y) that the

(u) See s. 36, last subdivision but one, ante.

(v) The "agent" need not necessarily be a solicitor; but looking at the difficulty of the questions which would have to be dealt with, any other than a professional man could scarcely deal with them properly on behalf of his principal.

(w) If the appeal be against an order to repair the highway, the Board may rectify the matter by simply abandoning the order; but if it be a matter of account, the manner of rectifying it will be more difficult. It can scarcely happen that a public body such as a Highway Board would charge in their accounts expenses which had not in fact been incurred; but when they have incurred expenses without any authority in law, to "rectify the matter complained of" they must refund the money illegally expended; but how? by subscription amongst the members of the Board, or individually? The Act,

in fact, fails to provide any practical mode of dealing with such a

case.

(x) The Board will be the judge of what is "a reasonable extent" within the meaning of this provision.

(y) This reference will only arise when the Board have refused to rectify the matter complained of under s. 39.

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matter in question in such appeal consists wholly or in part of matters of mere account which cannot be satisfactorily tried by the court, it shall be lawful for such court to order that such matters, either wholly or in part, be referred to the arbitration of one or more persons, to be appointed by the parties, or, in case of disagreement, by the court; and the award made on such arbitration shall be enforceable by the same process as the order of the court of quarter sessions. (z)

Provisions of 17 & 18 Vict. c. 125, incorporated.

41. The provisions of "The Common Law Procedure Act, 1854," relating to compulsory references, (a) shall be deemed to extend to arbitrations directed by the court of quarter sessions; and the word "court" in the said Act shall be deemed to include the court of quarter sessions.

Proceedings on Appeal.

42. If upon the hearing of the appeal it appears to the court that the question in dispute involves an inquiry as to whether a road is or is not a highway repairable by the public, or an inquiry as to any other important matter of fact, the court may either themselves decide such question, or may impanel a jury of twelve disinterested men out of the persons returned to serve as jurymen at such quarter sessions, and submit to such jury such questions in relation

(z) By statute 12 & 13 Vict. c. 45, s. 18, “in all cases where any order shall be made by any court of general or quarter sessions of the peace, it shall be lawful for the Court of Queen's Bench, or for any judge of that court at chambers, either in term or vacation, upon the application of any person entitled to enforce such order, and upon the production of a copy of such order under the hand of the clerk of the peace or his deputy, and upon proof of refusal or neglect to obey such order, to order and direct such order of the court of general or quarter sessions to be removed into the said Court of Queen's Bench; and thereupon such order shall be of the same force and effect, and may be enforced in the same manner, as a rule made by the said Court of Queen's Bench; and all the reasonable costs and charges attendant upon such application and removal shall be recoverable in like manner as if the same were part of such order."

(a) See ss. 3-17 of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), in the Appendix, pp. 293–296.

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.