TRUSTEES INTERESTED, &c.

Notice to be given fourteen days be

fore the meeting.

to be elected and appointed under any act of Parliament for making, repairing, or maintaining any turnpike road, shall die, or by bankruptcy, insolvency, or otherwise, become disqualified to act, or, by writing under their hands, refuse to act in the execution of such act, it shall be lawful for 3 Geo. 4, c. 126. the surviving or remaining trustees or commissioners, from time to time, to elect and appoint one other fit person, qualified as aforesaid, to be a trustee or commissioner, in the room of every trustee or commissioner dying or becoming disqualified, or refusing to act as aforesaid; provided that notice of the time and place of meeting of the trustees or commissioners for every such election be given by the clerk or clerks to such trustees or commissioners, by affixing the same in writing upon all the toll gates or turnpikes erected upon the said road for which they shall act as trustees or commissioners, and by inserting such notice in one or more of the newspapers circulating in that part of the country where such road shall pass, fourteen days at least before every such meeting; and every person who shall be elected and appointed a trustee or commissioner pursuant to the directions of this act, shall and may act with the surviving and remaining trustees or commissioners in the execution of such act, to all intents and purposes, as if he had been therein named and appointed a trustee or commissioner."

(2) Trustees Disqualified, where interested, or being Victuallers or Lessees of Tolls, &c.

Trustees not to act where interested, or while keeping a victualling house,

&c.

Penalty for acting not being qualifi

ed, 501.

By stat. 3 Geo. IV. c. 126, s. 64, "No person appointed or to be appointed a trustee or commissioner in or by virtue of any act for repairing turnpike roads, shall be capable of acting as such in the execution of any such act, in any case where he shall be personally interested (except as hereinafter provided), nor during the time he shall keep a victualling house, or other house of public entertainment, or who shall sell wine, cider, beer, ale, spirituous or other strong liquors by retail, or who shall be a Or lessee of tolls. lessee or farmer of the tolls on any turnpike road, or of any part or parts thereof; and if any person, not being qualified as aforesaid, or being disqualified by any of the causes aforesaid, or not having taken and subscribed the oath herein-before mentioned, or being a quaker, not having made and subscribed the affirmation herein-before mentioned, shall nevertheless presume to act as a trustee or commissioner in the execution of any such act, every such person shall, for every such offence, forfeit and pay the sum of fifty pounds to any person or persons who shall sue for the same, to be recovered, with full costs of suit, in any of his Majesty's Courts of record at Westminster, by action of debt or on the case, or by bill, plaint, suit, or information, wherein no essoign, protection, wager of law, or more than one imparlance shall be allowed; and the person so sued or prosecuted shall prove that he is qualified, and not disqualified as aforesaid, or otherwise shall pay the said penalty, without any other proof or evidence on the part of the prosecutor, than that such person had acted as a trustee or commissioner in the execution of any act for repairing turnpike roads: provided nevertheless, that no act or proceeding touching the execution of any such act, which shall be done or performed by any such unqualified or disqualified person previously to his being convicted of the offence before mentioned, shall be thereby impeached or rendered nugatory; but all such proceedings shall be as valid and effectual as if such person had been duly qualified: provided always, that no mortgagee or assignee of any mortgage or other security, or any lender of money upon the credit of the tolls, or receiving interest thereout for the same, shall on that account only be deemed unqualified to act as a trustee or commissioner in the execution of any such act; and any trustees or commissioners appointed or to be appointed under any such act, who are or shall be in the commission of the peace, may act as such justices of the peace in the execution of any such act, notwithstanding their being such trustees or commissioners, except in such cases only wherein they shall be personally interested otherwise than as a trustee, commis

Person sued to prove his qualifi

cation.

Proceedings not to be impeached on lification.

account of disqua

Mortgagees on the tolls not disqualifi

ed on that account.

TRUSTEES

INTERESTED, &c.

Owners of estates, qualified as inter

&c. not to be dis

ested persons.

sioner, mortgagee, assignee, lender of money, or holder of any security on the credit of the tolls granted by any such act."

By the 7 & 8 Geo. IV. c. 24, s. 1, reciting the titles of 3 Geo. IV. c. 126, and 4 Geo. IV. c. 95; and that such acts require to be further explained and amended; and that, By the said first-recited act it is among other things provided and enacted, that no person appointed as trustee in or by virtue of any act for repairing turnpike roads, shall be capable of acting as such in the execution of any such act in any case where he shall be personally interested; and doubts have arisen with regard to such person's liability;' it is enacted, "That no trustee of any turnpike road shall be deemed or taken to be personally interested, by reason of his having acted as a trustee in ordering the making, altering, or diverting any turnpike road over or contiguous to any lands, tenements, or hereditaments in his possession or occupancy, or by reason of his having received any sum or sums of money out of the tolls of any such road as or by way of purchase-money, damages, rent, recompence, or satisfaction agreed upon or awarded to such trustee for any lands, tenements, or hereditaments, or any timber or wood, or materials purchased or taken for the purpose of making, diverting, or altering, or for the use of the road for which he shall act as a trustee, or for a repository for materials to be used thereon, or for the damage done to any inclosed or private lands or grounds of any such trustee, in taking materials therefrom, or in carrying or conveying them over the same."

Trustees not to

fit or be concerned

in contracts (a),

(3) Trustees not to hold Places of Profit or be concerned in certain Contracts.

By the 3 Geo. IV. c. 126, s. 65, “No trustee or commissioner of any turnhold places of pro- pike road shall, from and after this act shall be in force, enjoy any office or place of profit (a) under any act of Parliament in execution of which he shall have been appointed, or shall act as trustee or commissioner, or have any share or interest in, or be in any manner directly or indirectly concerned in, any contract or bargain for making or repairing, or in any way relating to the road for which he shall act, or for building or repairing any toll house, toll gate, or weighing engine thereon, or for supplying any materials for the use thereof; nor shall any such trustee or commissioner let out for hire (b) any waggon, wain, cart, or other carriage, or any horse, cattle, or team, for the use of any turnpike road for which he shall act as a trustee or commissioner (b); nor by himself, or by any other person for or on out of the tolls to his account, directly or indirectly, receive any sum or sums of money to his use or benefit out of the tolls collected on the road for which he shall act, during the time he shall be acting as a trustee or commissioner of such road; and if any person, after having been appointed or elected a trustee or commissioner of any turnpike road, shall, without having first duly resigned such office at some meeting of the trustees of the road for which he shall have been elected or appointed, hold any such office or place, or be

or receive money

his use.

(a) A trustee, who accepted the office of treasurer, but allowed another person to receive the tolls, and never made any profit of it himself, is liable to the penalty, if the office yielded a profit. De Lane v. Hillcoat, 9 B. & C. 310. In this case the actual receiver proved that he did make a profit; but it was observed by the Court, that if the average balance was such as to induce a banker to allow interest on it, it must be considered as an office of profit.

(b) Where A. had contracted with the

trustees of a turnpike road to make certain improvements on the road, and he agreed to perform the same for a specific sum; one of the trustees afterwards agreed with A. to let him his horses and cart at the rate of 5s. per day; and he did so let them, and they were used on that part of the road which was agreed to be improved by A.; it was held, that the trustee was liable to the penalty imposed by the above section. Towsey v. White, 5 B. & C. 123; 7 D. & R. 810, S. C. See now the 4 Geo. IV. c. 95, post, 127.

TRUSTEES,

HOLDING OFFICES, &c.

concerned in any such contract or bargain, or shall sell any such tools or implements, or let out for hire any waggon, wain, cart, or carriage, horse, cattle, or team, or receive any money out of the tolls as aforesaid, every trustee or commissioner so offending shall, for every such offence, forfeit 3 Geo. 4, c. 126. and pay the sum of one hundred pounds to any person or persons who Penalty for, 1007. shall sue for the same, and shall, from and after the conviction of any such offence, be incapable of acting as a trustee or commissioner of any turn

Prohibition not applicable to pur

chase-money.

pike road; and all acts, orders, matters, and things made or done as a trus- Contracts void. tee or commissioner by the party so convicted, shall from thenceforth be null and void, to all intents and purposes, and all and every such contract and bargain shall be, and the same is hereby declared to be void, and shall not be enforced against or carried into effect by the other trustees or commissioners entering into the same: provided always, that all acts, orders, Acts previous to matters, and things, made or done by such trustee or commissioner previ- conviction valid. ously to his being convicted of any such offence, shall be good, valid, and effectual; and further provided, that nothing in this enactment contained shall extend, or be deemed or construed to extend, to any trustee or commissioner who shall receive any sum or sums of money paid out of the tolls of any turnpike road, as or by way of purchase-money, damages, rent, recompense, or satisfaction agreed upon or awarded to such trustee or commissioner, for any lands, grounds, tenements, or hereditaments, purchased or taken for the purpose of diverting or altering, or for the use of the turnpike road for which he shall act as a trustee or commissioner, or for a repository for materials to be used thereon, or for the damage done to any inclosed or private grounds of any such trustee or commissioner, in taking materials therefrom, or in carrying or conveying them over the same, or to prevent any such trustee or commissioner from selling or disposing of, for the use of the turnpike road, any materials, or any timber grown or growing on the land or grounds of such trustee or commissioner."

By 4 Geo. IV. c. 95, s. 37, reciting that, In and by the said recited act [3 Geo. IV. c. 126], it is amongst other things provided, that no trustee or commissioner shall have any share or interest in, or be in any manner directly or indirectly concerned in any contract or bargain for making or repairing, or in any way relating to the road for which he shall act, or for building or repairing any toll house or toll gate, or weighing engine thereon, or for supplying any materials for the use thereof, nor shall let out for hire any waggon, wain, cart, or other carriage, or any horse, cattle, or team (a), for the use of any turnpike road for which he shall act as trustee or commissioner, nor by himself, or by any other person for or on his account, directly or indirectly, receive any sum or sums of money to his use or benefit, out of the tolls collected on the road for which he shall act, during the time he shall be acting as a trustee or commissioner of such road (a); and in and by the said recited act any trustee or commissioner offending in any of the cases aforesaid is thereby made liable to pay the penalty of one hundred pounds,' it is enacted, "That no person or persons, being a trustee or commissioner, or trustees or commissioners of any turnpike road, shall be liable to and forfeit the said penalty of one hundred pounds, or any other penalty or forfeiture, for or by reason of his or their being only a proprietor or proprietors, or holder or holders of any share or shares, in any canal or railway company which shall contract with the trustees or commissioners of the road for which such person or persons shall act as a trustee or commissioner, or trustees or commissioners for the carriage or conveyance of any materials for the repair of such road."

Trustees having shares in canal which shall contract for conveyfor roads, not liable to penalty on contract.

companies, &c.

ance of materials

account of such

By the same act, sect. 78, trustees may enter into certain contracts for Contracts for aamending roads. See post, 163.

By 3 Geo. IV. c. 126, s. 84, trustees may purchase lands, &c. for making

or improving the roads. See post, 147.

mending roads.

By sect. 100 of the same act, the trustees are empowered to purchase Contracts for land for the purpose of digging materials therein. See post, 161.

(a) See Tousey v. White, 5 B. & C. 123; 7 D. & R. 810, S. C.; ante, 126, n. (b).

materials.

TRUSTEES.

The property of toll-houses, &c. vested in trustees.

(4) Property bested in Trustees.

The trustees have no interest in the soil of the road. Davison v. Gill, 1 East, 69; R. v. Mersey Navigation, 9 B. & C. 95; Id. 114; ante, 8; and, by the express provisions of the 7 & 8 Geo. IV. c. 24, s. 18, infræ, mines are declared to belong to the original owner of the soil.

Some property, however, does vest in them, thus, by 3 Geo. IV. c. 126, s. 60, it is enacted, "That the right, interest, and property, of and in all the toll gates and toll houses, weighing machines, and other erections and buildings, lamps, bars, toll boards, direction boards, mile stones, posts, rails, fences, and other things which shall have been, or shall be erected and provided in pursuance of any act of Parliament for making turnpike roads, with the several conveniences and appurtenances thereunto respectively belonging, and the materials of which the same shall consist, and all materials, tools, and implements which shall be provided for repairing the said Scrapings of roads. roads, and the scrapings of the said roads, shall be vested in the trustees or commissioners acting in pursuance of such act for the time being, and they are hereby authorized and empowered to apply and dispose of the same as they shall think fit, and to bring, or cause to be brought, any action or actions, and to prefer and prosecute, or order and direct the preferring and prosecuting of any informations or indictments, against any person or persons who shall dig up, break, or pull down, steal, take, or carry away, spoil, destroy, injure, or damage any of the toll gates, or toll houses, weighing machines, or other erections or buildings, lamps, bars, toll boards, direction boards, milestones, posts, rails, fences, and other things, or any of the conveniences and appurtenances thereto belonging, or any of the tools, implements, or materials aforesaid, or shall interrupt them, the said trustees or commissioners, or any of their officers, in the possession thereof, in all which proceedings it shall be sufficient to state generally such articles to be the property of the clerk for the time being to the said trustees or commissioners.'

Actions may be brought in the name of the clerk (a).

Sale of toll-houses, &c.

Tolls.

Minerals under

road to belong to original proprietors of land.

Rights of pastur

age.

The 57th, 58th, and 59th, sections of the 4 Geo. IV. c. 95, relate to the sale and disposal of unnecessary toll houses and property vested in trustees, &c. See the sections, post, 170, 174.

By the 9 Geo. IV. c. 77, s. 16, the tolls to be collected on any turnpike road are to be vested in the trustees. See post, 165.

By the 7 & 8 Geo. IV. c. 24, s. 18, it is enacted, "That all mines of iron, tin, lead, copper, coal, and other minerals whatsoever, which shall be discovered or found in or under any land to be used for any turnpike road, shall be, and they are hereby reserved to the person, body politic, corporate, or collegiate, who would have been seised of, or entitled to the same, in case the act for making such road had not been passed, with liberty for him or his agents or servants to dig for, mine, and work the same in such manner as is usual for carrying on works of that kind in the county, district, or place where such mines shall be found, in as full and ample a manner as if the said land had not been taken and appropriated for the purposes aforesaid, so that in the working thereof no damage shall be done to such road, or any part thereof.”

This provision is only in affirmance of the common law; the freehold of the road (subject to the right of way), and the mines under it, are vested in the owner of the soil, who may maintain actions against trespassers, &c. 1 Roll. Ab. 392; 1 Price, 143; Lofft, 358; Lade v. Shepherd, 2 Stra. 1004; Goodtitle v. Alker, 1 Burr. 133; 6 East, 154; ante, 8.

See the 4 Geo. IV. c. 95, s. 75, where provision is made for the preservation of the rights of pasturage along the sides of turnpike roads, post,

197.

(a) As to this provision, see further, 3 Geo. IV. c. 126, s. 74, post, 137, 138, and cases there collected.

(5) Trustees' Powers in General.

TRUSTEES,

POWERS OF.

To state all the powers of the trustees would be to repeat nearly all Trustees' general the provisions of the turnpike acts, which will be found dispersed throughout powers. this title. The reader must be satisfied with a reference thereto.

Trustees, as we have seen (ante, 122), are appointed under local statutes which have but a temporary existence, and an order, therefore, made by them would, unless otherwise enacted by statute, cease to be effective at the expiration of the term of the act; but a permanent effect is given to their acts, by 9 Geo. IV. c. 77, s. 11, which enacts, "That all conveyances, bonds, covenants, agreements, contracts, and securities made or entered into by any person or persons, to or with the trustees for carrying any local turnpike act into execution, or by any other person or persons, on behalf of the said trustees, according to the provisions of any such act, shall remain in full force and effect, notwithstanding the expiration or repeal of such act, and shall be and continue available in all courts, and before all judges and justices having jurisdiction, as the case may require, until the same are fully satisfied and performed, on account and for the benefit of the trust to be created by any subsequent act for maintaining the same turnpike road or any part thereof."

By 9 Geo. IV. c. 77, s. 12, a power is given to the trustees for cancelling the acts of former commissioners. See post, 173.

Bonds, contracts, &c. to remain in standing the repeal of any act.

full force notwith

(6) Meetings of Trustees.

By stat. 3 Geo. IV. c. 126, s. 69, “All trustees and commissioners of every turnpike road or roads shall, and they are hereby required to hold a general meeting of the trust for which they shall respectively act, on a day to be by them, or any three or more of them, appointed, in the months of April, September, or October; of which meeting twenty-one days' notice shall be given, by inserting the same in some newspaper or newspapers usually circulating in the county or counties in which the road or roads, in respect whereof such meeting shall be held, lie or are situated, which said meeting shall be called or known as The General Annual Meeting of the Trustees or Commissioners; and at such meeting the trustees or commnissioners assembled, shall elect a chairman for the purposes thereof, and shall also audit their accounts, and report the state of the road or roads under their care and superintendance."

By stat. 4 Geo. IV. c. 95, s. 42, after reciting that By the said recited act [3 Geo. IV. c. 126] all trustees and commissioners of every turnpike road or roads are required to hold a general meeting of the trust for which they shall respectively act, on a day to be by them, or any three or more of them, appointed in the months of April, September, and October;' it is enacted, "That where, in and by any act of Parliament, a general annual meeting of the trustees acting in execution of such act, shall be appointed to be held at any other time of the year than in the said months of April, September, or October; and the said trustees shall have held such meetings under the authority of such act, it shall and may be lawful for such trustees to continue to hold the said general annual meetings at the time mentioned and directed in the act, under and by virtue of which they shall be appointed, instead of in the said months of April, September, or October; any thing in the said recited act contained to the contrary notwithstanding.'

By 3 Geo. IV. c. 126, s. 70, "Where a sufficient number of the trustees or commissioners of any turnpike road shall not meet on the day appointed by any such act or acts respectively for their first meeting, or shall not meet on the day appointed by adjournment for their meeting, or for want of a proper adjournment, by which means, or by some or one of them,