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8. Surreyors. 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 suffi5 & 6 Will. 4,
cient deputy, to be approved of as aforesaid, he shall forfeit, on conviction veyor not acting when chosen, or before any two justices, any sum not exceeding 201., unless he can shew providing a suffi
to the said justices good and sufficient cause why he should not be called cient deputy.
upon to serve the said office : Provided also, that every deputy so proPowers, duties, &c. of deputy. vided 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."
Surveyor may be appointed with a salary.
4. A SALARY MAY BE GIVEN. By s. 9, “ Instead of electing such surveyor as hereinbefore meotioned, 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 dominate 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 shel think fit; which said appointment shall be in writing on paper without 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 aspointed 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 Domnated 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."
Salary, how raised.
5. SURVEYOR TO NAME HIS SUCCESSOR. Surveyor, on veri. By s. 10, “The surveyor or surveyors, at the time of passing his or fying his accounts, their accounts as herein mentioned, I see ss. 44, 45, post, 541, 542], suam to name his successor.
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.
Power to justices in certain cases to appoint a 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 been lected or refused to nominate and elect a surveyor or surveyors in manner and for the purposes aforesaid, or that the outgoing surveyor, except ne 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, 53); 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 high ways to dismiss such surveyor so neglecting to act or refusing 10 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 suca 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
Powers, &c., of
(a) See form, post, No. 2.
(6) See R. v. Inhabitants of Pembridge, i C. & M. 157. See form of
appointment, post, No. 3. It must be stamped, ante, 534.
than one county.
surveyor, when so appointed, shall be invested with the same powers, 9. District and be subject to the same duties, forfeitures, and penalties, as any sur- surveyors, fc. veyor elected by the inhabitants of any parish as aforesaid would have been."
* 5 & 6 Will. 4, c. 50. Sect. 12. “When a parish is situated in more than one county, divi- When parish is
situate in more sion, 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. & C. 6, S. C.; R. v. Mayor of Norwich, 1 B. & Adol.310 ; R. v. Sparrow, 2 Stra. 1123).
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- appointm 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.&
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 Penalty on surshall neglect his duty in any thing required of him by this act, for which meansect of duty. 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. 67). (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.
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,"
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 neElect 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 di.
at in many cases parishes should be formed into districts for the rect application to
9. District purpose of having one sufficient person to be the district surveyor, who surv?yors, &c. should have the superintendence and management of the funds to be
raised and levied under the provisions of this act in each parish forming 5 & 6 Will. 4, c.50.
part of such district;" it is enacted, " That it shall and may be lawful be made to justices for the inhabitants of any parish in vestry assembled, if they shall think forming them into fit (a), to empower and direct one of the churchwardens of such parish, districts.
or the chairman of the said vestry, to make application (6) 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 fst 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 sued district surveyor; which application, with the name of such last-miationed person, shall be forth with made in writing, signed by the chuthwardens of the said parish, or by the chairman of the said vetry aforesaid, and forwarded to the clerk of the peace in and for the said county, or to the clerk of the justices in and for the said division, the case may be, who shall lay the same before the justices at the quar ter sessions then next holden in and for the said county, or at the special
sessions as aforesaid.” Justices at sessions Sect. 14. “On such application as aforesaid being made by two ar parishes into dis
more parishes to the said justices, they are hereby authorized at the said tricts, and select quarter sessions, or at some special sessions as aforesaid, to take the same and appoint a dis- into their consideration, and to unite such and so many of the parishes
so applying as aforesaid, as they shall think fit, into a district or districta for the purposes of this act; and the said justices shall select and appoint out of the persons so nominated as aforesaid by the several parishes united into one district one fit and competent person to be the surveye for such district, composed as aforesaid, which appointment shall be in writing.”
2. RECORD AND DURATION OF UNION. Names of parishes By s. 15, “ The names of the said parishes so united, and the name of andoof district sur- the person so appointed as district surveyor, shall be reduced into wzilcorded, and a copying, signed by the chairman of the said quarter sessions, or by the Tk thereof sent to each church
jority of the
magistrates present at such special sessions, and shall be warden, &c. transmitted by him or them to the clerk of the peace, who shall lay the
same before the justices assembled at the quarter sessions in and for the said county, or at some adjournment thereof, who are hereby authorized and required to cause the same to be inrolled with the records of the court; and a copy thereof shall be sent by such clerk of the peace
each of the church wardens or the surveyor of each of the said parishe Parishes when so united; and such parishes so united shall continue to form a distri district for three for the purposes of this act for the space of three years then next follor years, and until ing, and from thenceforward until the church warden of any one of te iwelve months after any one
said parishes so united, or the chairman of the vestry, shall, by directis parish shall give and in pursuance of a resolution of the inhabitants in vestry assembled notice of intention give twelve months' notice to the church wardens and surveyor of
of the other parishes, and to the said district surveyor appointed by the district.
said justices, and to the clerk of the peace of the county in which to 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 exp ration of the said twelve months' notice, the union of the said parish into such district as aforesaid, and the appointment of the said distric
united to form a
one of said
(a) This, it will be seen, does not render it compulsory on the parishes.
(6) See form of application, post, No. 14.