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8. Surveyors.

5 & 6 Will. 4, c. 50.
veyor not acting
when chosen, or
providing a suffi-
cient deputy.
Powers, duties,
&c. of deputy.

Surveyor may be appointed with a salary.

Salary, how raised.

Dismissal of.

Surveyor, on veri

to name his

is not exempt as aforesaid from serving the said office, shall refuse or neglect to take upon himself the office of surveyor, or to provide a suffcient deputy, to be approved of as aforesaid, he shall forfeit, on conviction before any two justices, any sum not exceeding 201., unless he can shew to the said justices good and sufficient cause why he should not be called upon to serve the said office: Provided also, that every deputy so provided and approved of shall have the same powers and authorities, and be subject to the discharge of the same duty, and be liable to the same penalties as any surveyor appointed under the authority of this act.”

4. A SALARY MAY BE GIVEN.

By s. 9, "Instead of electing such surveyor as hereinbefore mentioned, it shall be lawful for the majority of the inhabitants so assembled as aforesaid in any parish for the election of surveyors as aforesaid to nominate and elect any one (see Morrell v. Martin, 8 Scott, 709, n. (185)) person of skill and experience to serve the said office of surveyor of such parish, and to fix such salary for the execution of such office as they sta think fit; which said appointment shall be in writing on paper withst stamp, and signed by the chairman of such meeting (a); and such; veyor, when so appointed, shall be invested with the same powers, subject to the same duties, forfeitures, and penalties, as any surveyor ap pointed under the authority of this act would have been; and such s lary shall be paid out of the money raised under the authority of this act, at such times and in such manner as shall have been agreed upon be tween the inhabitants so assembled as aforesaid and the person so nominated and elected as aforesaid: Provided nevertheless, that if such sur veyor shall cease to act, and be dismissed in the manner hereinafter described, [sect. 11, infra], such salary shall also in like manner cease and determine."

5. SURVEYOR TO NAME HIS SUCCESSOR.

By s. 10, "The surveyor or surveyors, at the time of passing his or fying his accounts, their accounts as herein mentioned, [see ss. 44, 45, post, 541, 542], shall deliver to the justices a statement in writing of the name and residence of the person appointed to succeed him or them as surveyor or surveyors

successor.

Power to justices in certain cases to appoint a sur

veyor.

Powers, &c., of surveyor.

6. APPOINTMENt of Surveyor BY JUSTICES.

By s. 11, "In case it shall appear on oath to the justices at a special sessions for the highways that the inhabitants of any parish have neg lected or refused to nominate and elect a surveyor or surveyors in manner and for the purposes aforesaid, 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 or their successor or successors, or that the surveyor is dead, or has ceased to possess the qualification, (ante, 535), or is or has become disqualified in any manner herein mentioned, or that he has neglected to act, or refused to carry into operation the duties imposed upon him by this act, it shall and may be lawful for such justices, and they are hereby authorized and required, by writing under their hands (6), at their next succeeding special sessions (post, 564) for the highways to dismiss such surveyor so neglecting to act or refusing to carry into operation the duties imposed upon him by this act, and to appoint any person whom they may think fit to be a surveyor for such parish till the annual meeting then next ensuing for the nomination of overseers or for the election of surveyors as aforesaid, and with or without such salary, as to the said justices shall seem fit and proper; and the said

(a) See form, post, No. 2.
(b) See R. v. Inhabitants of Pem-
bridge, 1 C. & M. 157. See form of

appointment, post, No. 3. It must be stamped, ante, 534.

surveyor, when so appointed, shall be invested with the same powers, and be subject to the same duties, forfeitures, and penalties, as any surveyor elected by the inhabitants of any parish as aforesaid would have been."

Sect. 12. "When a parish is situated in more than one county, division, or liberty, the surveyor so to be appointed as last aforesaid shall be appointed by the justices at a special sessions for the highways assembled in that county, division, or liberty in which the church of the said parish shall be situate."

It may perhaps be considered that the above two clauses are only directory to the magistrates to make the appointment at the time mentioned, there being no negative words to prevent them from exercising their office in that respect at any subsequent time, if it shall be necessary; common sense requiring, that if the appointment be not made at the first special sessions, it should be made afterwards. (R. v. Denbighshire, 4 East, 142. See R. v. Leicester (Justices), 9 D. & R. 772; 7 B. 4 C. 6, S. C.; R. v. Mayor of Norwich, 1 B. & Adol. 310; R. v. Sparrow, 2 Stra. 1123).

9. District surveyors, &c.

5 & 6 Will. 4, c. 50.

When parish is

situate in more

than one county.

A minute-book, kept by the magistrate's clerk, was offered in evi- Evidence of old dence, to shew who had been appointed by the magistrates to be survey- appointment. ors of the highways for the year 1812; it was held, that this evidence was not receivable without proof of a search for the original appointment, under the hands and seals of the magistrates. Whether the minutebook would have been receivable as secondary evidence, if the original appointments had been lost, is questionable. (R. v. Pembridge, 1 Car. & M.157).

7. PENALTY ON SURVEYOR, &c., FOR NEGLECT OF DUTY WHERE NO OTHER PARTICULAR PENALTY IMPOSED.

By s. 20, "If any surveyor or district surveyor or assistant surveyor shall neglect his duty in any thing required of him by this act, for which no particular penalty is imposed, he shall forfeit for every such offence any sum not exceeding 51." (See Morgan v. Leach, 10 M. & W. 558). A surveyor is liable, by subsequent sections of the act, to a penalty for not keeping account-books, and allowing inspection thereof, (sect. 40); for non-delivery of books to his successor in office, (sect. 42); for sharing in any contract, letting to hire any team, or disposing of materials without license from justices, (sect. 46); for neglecting to fill up pits made for getting materials, (sect. 55); for allowing any heap of stone, &c., to remain on highway at night, (sect. 56); for damaging mills, dams, &c., by digging materials, (sect. 57). (See Shelford, 27). And see post, as to levying upon surveyor's goods the portion of the highway-rate directed to be paid towards the repair of a turnpike-road, in case of his refusing or neglecting to pay the same.

Penalty on surveyor, &c., for

neglect of duty.

If the surveyor be guilty of any embezzlement or breach of duty, he Indictment may be indicted at common law. (R. v. Anderson, MS., post, "Officer," against. Vol. V.)

IX. Of District Surveyors, and Formation of Parishes

into Districts.

And herein of the mode of proceeding to form parishes into a district, -appointment of district surveyor-the record and duration of the union, -the powers and salary of the district surveyor,-the penalty on neglect of duty,—and of appointment of surveyors to make rate.

1. MODE OF PROCEEDING-APPOINTMENT OF DISTRICT SURVEYOR.

By 5 & 6 Will. IV. c. 50, s. 13, reciting, "And whereas it is expe- Parishes may didient that in many cases parishes should be formed into districts for the rect application to

[blocks in formation]

purpose of having one sufficient person to be the district surveyor, who should have the superintendence and management of the funds to be raised and levied under the provisions of this act in each parish forming part of such district;" it is enacted, "That it shall and may be lawful for the inhabitants of any parish in vestry assembled, if they shall think fit (a), to empower and direct one of the churchwardens of such parish, or the chairman of the said vestry, to make application (b) to the justices assembled at the quarter sessions for the county, or, where the pa rishes to be united shall be situated in the same division, at some special sessions for the division in which such parish shall be situate, for the purpose of being united with one or more parishes to form a district for the purposes aforesaid, and at the same time to nominate one fit and proper person to be returned to the said justices to be appointed as such district surveyor, together with the amount of the yearly salary which the said inhabitants in such vestry assembled shall agree to pay to suce district surveyor; which application, with the name of such last-metioned person, shall be forthwith made in writing, signed by the churchwardens of the said parish, or by the chairman of the said vestry aforesaid, and forwarded to the clerk of the peace in and for the s county, or to the clerk of the justices in and for the said division, us the case may be, who shall lay the same before the justices at the quarter sessions then next holden in and for the said county, or at the spec sessions as aforesaid."

Sect. 14. "On such application as aforesaid being made by two more parishes to the said justices, they are hereby authorized at the s quarter sessions, or at some special sessions as aforesaid, to take the sa into their consideration, and to unite such and so many of the pariss so applying as aforesaid, as they shall think fit, into a district or distric for the purposes of this act; and the said justices shall select and app out of the persons so nominated as aforesaid by the several parishes » united into one district one fit and competent person to be the survey for such district, composed as aforesaid, which appointment shall be writing."

2. RECORD AND DURATION OF UNION.

By s. 15, "The names of the said parishes so united, and the name the person so appointed as district surveyor, shall be reduced into w ing, signed by the chairman of the said quarter sessions, or by the ma jority of the magistrates present at such special sessions, and sha transmitted by him or them to the clerk of the peace, who shall lay same before the justices assembled at the quarter sessions in and for said county, or at some adjournment thereof, who are hereby author and required to cause the same to be inrolled with the records of court; and a copy thereof shall be sent by such clerk of the peac each of the churchwardens or the surveyor of each of the said pars so united; and such parishes so united shall continue to form a dist for the purposes of this act for the space of three years then next fol ing, and from thenceforward until the churchwarden of any one of said parishes so united, or the chairman of the vestry, shall, by direc and in pursuance of a resolution of the inhabitants in vestry assem give twelve months' notice to the churchwardens and surveyor of of the other parishes, and to the said district surveyor appointed by said justices, and to the clerk of the peace of the county in which said parishes are situate, of the intention of the said parish to cease form a part of the said district; in which case, from and after the ex ration of the said twelve months' notice, the union of the said paris into such district as aforesaid, and the appointment of the said dist

(a) This, it will be seen, does not render it compulsory on the parishes. (b) See form of application, post, No. 14.

surveyor shall cease and determine, so far as may concern or be binding 10. Surveyor's on the said parish so giving such notice as aforesaid.”

3. POWERS AND SALARY OF DISTRICT SURVEyor. By s. 16, "Such district surveyor, when so appointed, shall, for all the purposes of this act, except the making, assessing, and levying the rate in and by this act authorized to be made, assessed, and levied (see 88. 17, 27, &c.), have, as far as the same are applicable, the same powers, and be subject and liable to the same duties, penalties, and forfeitures, as any surveyor elected under the provisions of this act is invested with and liable to, and shall have the laying out and application of all the funds raised and levied under the authority of this act: Provided nevertheless, that such district surveyor shall not expend any monies levied in any one of the said united parishes except for the use and benefit of the parish in which it is so levied, unless with the consent of the inhabitants of such parish in vestry assembled, for the purpose of carrying on repairs or beneficial improvements under the provisions of this act, for the common benefit of the said united parishes; and such district surveyor shall annually receive from each of the parishes composing his district respectively such salary as shall have been agreed upon by the several parishes in manner aforesaid, which salary shall be paid to such district surveyor by the surveyor of the highways, out of the money raised in each of such parishes under the authority of this act; and in ease of non-payment thereof, the same shall be recoverable from the surveyors of the highways of such parishes, to and for his own use, in the same manner as any forfeiture is recoverable under this act (a).”

4. PENALTY ON DISTRICT SURVeyor for NegLECT OF DUTY, &c. See the 20th sect., ante, 537.

5. SURVEYORS TO BE APPOINTED TO MAKE RATE. By sect. 17. "In each of the parishes so united into a district as aforeaid a surveyor shall be elected as herein mentioned, in addition to the istrict surveyor so appointed as aforesaid: Provided nevertheless, that ach surveyor shall only be authorized and required to make, assess, and By the rate herein directed to be made, assessed, and levied, (see sect. 1, &c., post, 543), and from time to time pay over the money arising herefrom to such district surveyor."

L. Of the Surveyor's Accounts, Inspection of, and Enforc

ing Payment, &c., of.

accounts, &c.

5 & 6 Will. 4, c. 50.

District surveyor to have power, &c., cept in levying

of surveyor, ex

rate.

Salary of district surveyor how to be paid.

Penalty on district surveyor for neglect of duty.

When parishes are united, a surveyor to be appointed to make rate, &c.

to be kept.

By 5 & 6 Will. IV. c. 50, s. 39, "The surveyor in every parish shall Separate accounts ep separate and distinct accounts of the monies levied for the highway te; and such accounts shall specify the different sums, and the times hen and the persons to whom and by whom the same shall have been llected and paid."

Sect. 40. "The said surveyor, district surveyor, or assistant surveyor, the case may be, shall and he is hereby required from time to time keep a book, in which shall be entered a just and true and particular

(a) As to the mode of recovering alties, &c., see ss. 101, 103, post,

XXII. pp. 608, 609. (6) A. and B., being co-surveyors the highways of a parish, it was greed between them that A. should lever up the rate-book to B., and at B. should pay A. out of the naies he should collect under the rate, the sum of 157., which A. had sfranced beyond the amount collected

by the previous rate. The book was
accordingly delivered to B., who col-
lected more than 157., but expended
the whole in the repair of the roads,
and did not pay A. the 157.:-- Held,
that A. might maintain an action to
recover it. (Luddard or Liddard v.
Holmes, 2 C. M. & R. 586; 1 Tyr.
& G. 9, S. C.) This case was decided
before the passing of the 5 & 6 Will.
IV. c. 50.

Surveyor to keep of monies received, &c. (b);

books and account

10. Surveyor's accounts, &c.

5 & 6 Will. 4, c. 50.

to be open to inspection of rated inhabitants (a).

The property in books, materials, &c., to be vested in surveyor for time being.

Surveyor, on quitting office, to deliver books, &c., to succeeding surveyor.

Penalty for neglect.

Decisions under

account of all money which shall have come to his hands as surveyor, district surveyor, or assistant surveyor of the parish for the purposes of this act, and to whom, and on what occasion, and for what work, and in what place, and on what day he shall have paid or applied the same, and also an account of all tools, materials, implements, and other thing provided by him for the repair of the said highways; and such bo shall at all reasonable times be open to the inspection of every inha tant rated to the highway rate of the parish, or of any of the parish united into a district, without fee or reward, and every such inhabita may take copies or extracts from the said book, or any part there without paying for the same; and in case the said surveyor, disr surveyor, or assistant surveyor shall neglect to provide such book, er enter therein every sum received or paid by him within one week afte the same shall have been received or paid, or shall refuse to permit shall not permit any such inhabitant as aforesaid at any reasonable t to inspect the same, or take copies or extracts as aforesaid, such veyor, district surveyor, or assistant surveyor shall forfeit and pay.” sum not exceeding 51. for each default, to be levied and app manner herein provided." (See post, 608).

Sect. 41. "All the said books, papers, writings, and accounts, materials, tools, and implements which shall be provided in purs of this act for repairing or preserving the highways, and also the ings of the said highways, shall be vested in the surveyor for the t being; or in case a district surveyor shall be appointed, then all books, papers, writings, and accounts, and all materials, tools, in ments, and scrapings, shall be invested in the district surveyor." this further noticed, post, Sect. XIX, p. 604).

See post, 604, as to the custody of the books.

Sect. 42. "The said surveyor, district surveyor, or assistant sur shall, within fourteen days after leaving his office, deliver such e and accounts verified as herein directed, together with all such s money as shall be due from him, and likewise all tools, materials plements, and other things as aforesaid, to his successor in office, (* tain the same in his hands, and account for them in his next a he shall be continued surveyor or district surveyor of such parish succeeding year; and in case such surveyor or district surve « neglect to deliver within such time as aforesaid, the said books up writings, and accounts, and such tools, materials, implements, things, in manner aforesaid, he shall for every such offence for sum not exceeding 57.; and in case he shall make default in the or accounting for the money so due from him within the time a.. cording to the directions aforesaid, he shall forfeit double the met due (b)."

Under the statute 13 Geo. III. c. 78, s. 48, it was held that a s the 13 Geo.3, c. 78. of highways could not maintain an action against the late surve the balance remaining in his hands until his accounts had been ** and allowed or disallowed in the manner pointed out by the 48thof that act, which provided that the surveyor, before he wen! office, should do certain things as to his accounts; and whenever th accounts should be settled in manner therein appointed, the sur should forthwith deliver a duplicate of the account, with all suc of money as should remain in his hands, to the succeeding s (Heudebourck v. Langton, 10 B. & C. 546; 3 C. & P. 566, S. C.) Under this enactment it was also held, that churchwardens an seers have not such a property in the account-books of a late s of the highways as to enable them to maintain trover for them; their remedy was under this enactment. (Addison v. Round,7 285).

(a) This provision, as to inspecting, was not in the repealed act of 13 Geo. III. c. 78.

(b) See form of conviction. No. 30.

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