APPOINTMENT OF SURVEYOR. sons contained in the list. The justices are to give ten days' notice of holding special sessions to the constables, &c., and may appoint from the list such number of surveyors as they shall judge fit, if they shall, in the opinion of the jus tices, be qualified for the office; if not, other inhabitants or occupiers, &c., which appointment shall be noti at such meeting, to the justices of the peace, at their special sessions to be held for the highways within that limit, in the week next after the Michaelmas general quarter sessions of the peace in every year (a); and shall also, Notices to the per- within three days after making the said list, give personal notices to, or cause notices in writing (b) to be left at the places of abode of the several persons contained in such list, informing them of their being so named, to the intent that they may severally appear before the justices, at the said special sessions, to accept such office, if they shall be appointed thereto, or to shew cause, if they have any, against their being appointed: and the said justices are hereby authorized and required to hold such special sessions at such convenient place or places, within their respective limits, as they, in their discretion, shall judge proper; and to give notice (c) of the time and place where they intend to hold the same to the constables, headboroughs, or tithingmen, of every such parish, township, or place, at least ten days before the holding of the said session; and the said justices, then and there (d), from the said lists according to their discretion (e), and the largeness of the parish, township, or place respectively, by warrant (ƒ) under their hands and seals, shall appoint one, two, or more of such persons as aforesaid, if he or they shall, in the opinion of such justices, be qualified for the office of surveyor (g); if not, one, two, or more of the other substantial inhabitants or occupiers of lands, tenements, woods, tithes, or hereditaments, within such parish, township, or place, living within three miles thereof, and within the same county, fit and proper to serve the office of surveyor of the highways for such parish, township, or place, if any such can be found; which appointment shall by the constables, headboroughs, or tithingmen aforesaid, be notified to every person so appointed by the said justices, within three days after such appointment, by serving him with the said warrant, or by leaving the same, or a true copy thereof, at his house or usual place of abode; and every person so appointed, if he accepts the said office, shall be surveyor of the highways for the said parish, township, or place, for the year ensuing, and shall take upon him, and duly execute, the office aforesaid; and the said justices shall then and there give such of the said surveyors as shall personally appear before them, a charge for the better performance of their duty, according to the directions of this act: and if any of the said persons, so appointed, whose names were contained in such list, and who were served with the said notice, shall refuse or neglect to appear at the said special sessions, and accept the said office, if appointed thereto, in manner aforesaid, or shall not, within six days after being served with such warrant or appointment, signify his acceptance thereof, either in person or by writing, to one of the said justices, he shall forfeit the sum of 5l.; and in case any person so appointed by the said justices, whose name was not contained in such list, shall refuse or neglect to accept the said office, or shall not, within six days after being served with such appointment, shew to one of the justices signing such appointment sufficient cause why he should not serve such office, he shall forfeit the sum of 50s.: provided that no person who hath been appointed and served the office of surveyor for one year shall be liable to be appointed surveyor for the same parish, township, or place, within three years from the time of such first appointment and service, unless he shall consent thereto." The section then concludes, as post, 51, with provisions in case of default made in the appointment of a surveyor in this way. fied to the persons stables, &c., con and the surveyor shall hold his office for one year. Justices to give a formance of surveyor's duty. charge for the per Persons appointed from the list refusing to serve, shall forfeit 51.; and those not in the list, on refusal, shall forfeit 508. No person who hath served one year is to be again appointed for the same place within three years after, without his consent. The sessions. Meeting. The 54 Geo. III. c. 84, altered the time for holding the Michaelmas quarter sessions; it has therefore been enacted by the 55 Geo. III. c. 68, s. 6, ante, 48, that justices, at their special sessions, in the week after Michaelmas, may do the same acts as they might have theretofore done at the session directed to be holden in the week after the said Michaelmas general quarter sessions of the peace. See ante, 48. A full parochial meeting for the lists is, it seems, sufficient, without there (a) See this altered, ante, 48. (b) Form (40), post. (c) Form (40), post. (d) R. v. J. of Denbighshire, post, 51. (e) R. v. Baldwin, 7 T.R. 169, post, 51. (f) Form (41), post. (g) See R. v. Justices of St. Alban's, 3 B. & C. 698, post, 51. being present all those persons, such as constables, headboroughs, &c., as are named in the act. See R. v. Pettiward, 4 Burr. 2452. If the magistrates, upon proper lists returned to them, omit to appoint a surveyor of the highways, at their first special sessions as directed by this act, they are bound to make such appointment at a subsequent special sessions. For, per Ld. Ellenborough, C. J., this part of the act is only directory to the magistrates to make the appointment at the time mentioned: but there are no negative words to prevent them from exercising their office in that respect at any subsequent time, if it shall be necessary. And common sense requires that if the appointment be not made at the first special sessions, it should be made afterwards. R. v. Justices of Denbighshire, 4 East, 142. APPOINTMENT OF SURVEYOR. Magistrates omitting to appoint a surveyor. surveyors from list In R. v. Baldwin and others, 7 T. R. 169, a rule was moved for, to shew Magistrates not cause why a mandamus should not issue to the defendants and the other bound to appoint justices of Surrey, commanding them to appoint one or more persons named returned. in the list of 21 persons returned to them as directed by stat. 13 Geo. III. c. 78, to be surveyors of the highways of the parish of Battersea. In fact, the defendants had appointed two of the persons named in the list, but they had also appointed a third surveyor not in the list. Ld. Kenyon, C. J.—By the first section in the act of Parliament, if the list of persons returned to the justices does not contain the names of persons whom the justices think qualified, they may appoint any other persons of the parish who are properly qualified. If indeed the magistrates act corruptly, they may be punished for an abuse of their discretionary power; but no corruption is even suggested in this case. The lists are directed by the act only for the purpose of assisting the magistrates, who in many instances might not perhaps know a sufficient number of persons fit for the office. Rule discharged. The surveyors may be appointed for a less district than the whole Surveyors for a parish. Id. district. The appointment of surveyor cannot be removed into the Court of King's Certiorari. Bench, because the certiorari is taken away; but an appeal lies against it, and every parishioner is a person grieved by the appointment. See the appeal clause, ante, 43. R. v. Justices of St. Alban's, 3 B. & C. 698; 5 D. & R. 538, S. C. Nor is this without reason, for, if an occupier of lands within a township claims exemption from doing statute duty on any roads, except those within the township, he must object to the appointment of a surveyor for the whole parish. This seems his only remedy. Fawcet v. Foulis, 7 B. & C. 394; 1 M. & R. 102, S. C. The appointment must be stamped, for every appointment in writing to Stamp. any office or employment, where the salary shall not amount to 50l.,_requires a stamp of 21., where more, &c., see post, Stamps, Vol. V. R. v. Few, 8 B. & C. 655. This was the case of an assistant overseer. be appointed, at a sessions, and a sa ment. Default in making Lists, or Refusal to serve]-Sect. 1, of the 13 Geo. III. If no such list be c. 78, continues to enact thus: "But if no such (ante, 49) list shall be made made, or the person appointed reand returned, or if the said justices shall make such appointment as afore- fuses to serve, ansaid, and the person or persons so appointed shall refuse to serve the said other person may office, the said justices, or any two of them, shall and may, and are hereby subsequent special required, at the said special sessions, or at some subsequent special sessions, lary fixed, not exto be held within one month after, to nominate and appoint some other ceeding one-eighth person or persons to be surveyor of such parish, township, or place, whom part of Gd. assessthey shall judge proper to execute that office, and shall and may fix such salary to be paid to such surveyor, to be appointed as herein last before mentioned, out of the said forfeitures, and all other forfeitures, fines, penalties, assessments, and compositions, to be paid, levied, and raised, under the authority of this act, within such parish, township, or place respectively, as such justices shall think fit, not exceeding one-eighth part of what shall have been raised by an assessment of 6d. in the pound, for the use of the highways within such parish, township, or place, where any such assessment shall have been raised, and observing the same restriction, as near as they can, from the best information they shall be able to get of the probable APPOINTMENT OF SURVEYOR. Justices may re quire the constables, &c., to return ing, of the sum which the assessment of 6d. per pound will raise. 40s. penalty on the amount of such an assessment, where none hath been already made; and the said justices shall and may, if they think fit, require (a) the constables, headboroughs, tithingmen, and surveyor, of every such parish, township, and place, or any of them, to return to them at such time and place as they an account in writ- shall appoint, an account, in writing (b), of the sum which such assessment of 6d. in the pound hath raised, or will, in his or their opinion, raise within such parish, township, or place: and if the constables, headboroughs, tithingmen, churchwardens, surveyors of the highway, and such householders as aforesaid, of any parish, township, or place, shall neglect or refuse to make such list as aforesaid; or if the constable, headborough, or tithingman of any parish, township, or place, shall not return the said list of names, when made, and such duplicate thereof as aforesaid, and give such notice or notices, and serve such warrant or warrants, as in this act is directed; or if the said constable, headborough, tithingman, and surveyor, or any of them, shall neglect to return such account of the amount of such assessment, as aforesaid, when so required as aforesaid; every constable, headborough, tithingman, churchwarden, or surveyor, so neglecting or refusing, in any of the said cases, shall, for every such default respectively forfeit the sum of 40s." constables, &c., not making or returning such lists, or not giving the notices required. Justices of cities or boroughs not to allow salaries to Justices of Cities, &c.]—By 13 Geo. III. c. 78, s. 53, "Justices of the peace of all cities, corporations, boroughs, and other places, are hereby required to put in execution every part of this act within their respective jurisdictions." Sect. 54, provides, "That nothing in this act contained shall authorize or empower, or be deemed, construed, or taken to authorize and empower, any surveyors, except justice or justices of the peace, for any city, town corporate, or borough, to fix or allow any salary to or for any surveyor to be appointed by any such justice or justices, other than and except such salary as shall be settled and agreed upon by two parts out of three of the persons assembled in the parish, township, or place, within such city, town corporate, or borough, for which such surveyor shall be appointed, pursuant to the directions of this act." such as shall be agreed upon at the meeting of the householders. Where the justices, upon such refusal, shall appoint another person, they are to appoint one substantial inhabitant for his assistant; who, on refusal to shall forfeit 50s., and the justices may appoint an Assistant Surveyor-Sect. 2. "In all cases where the said justices, upon neglect or refusal of the person so nominated surveyor as aforesaid to accept the said office, shall appoint any other person for such surveyor, with a salary as aforesaid, the said justices shall and are hereby required to appoint one substantial inhabitant of such parish, township, or place, for assistant (c) to such surveyor, in the several matters, and for the several purposes hereafter mentioned, until the next annual appointment of surveyors, according to the directions of this act; and if the person so appointed assistant shall, accept that office, upon notice of such appointment, refuse to accept that office, he shall forfeit the sum of 50s.; and, in that case, it shall and may be lawful for such justices to appoint any other substantial inhabitant of such parish, township, or place, for assistant to such surveyor, in manner and for the time aforesaid; and if such second appointed assistant shall decline or refuse to accept the said office, he shall, in like manner, forfeit the sum of 50s.; and the said justices shall and may appoint any other person, inhabiting in such parish, township, or place, assistant to such surveyor, who shall be entitled to the said forfeitures herein last before mentioned; and also to some further allowance by way of salary, (to be paid as the surveyor's salary is hereby directed to be paid), if the said justices shall think any such salary necessary, and shall order the same, which they are hereby authorized to do: provided that no person so appointed assistant for one year shall be liable to be appointed assistant for the same parish, township, or place, within three years next following such first appointment, without his consent." other, who, on refusal, shall also forfeit 50s., they may then ap point a third perentitled to the said forfeitures, and to son, who shall be a further allow ance, by way of salary, if the justices think necessary. Bond to be given by the surveyor appointed with a salary, to account for the money which shall come to his hands. Bond]-Sect. 3. "The surveyor of every parish, township, and place, who shall not reside therein, but shall be appointed with such salary as aforesaid, shall, if required by the churchwarden, overseer of the poor, or any principal inhabitant of the parish, township, or place, for which he shall be so appointed (a) Form (16), post. (b) Form (17), post. (c) Form (43), post. OF SURVEYOR. surveyor, at the time of his appointment, or within fourteen days after, give APPOINTMENT a bond (a) (b) upon paper, without stamp thereupon, to some proper person within such parish, township, or place, to be nominated by the said justices, 13 Goo. 3, c. 78. with sufficient surety, to account for the money which shall come to his hands as surveyor, according to the directions of this act." Surveyor with Salary may be chosen at first]—Sect. 5. "If two parts out of three of those so to be assembled in any such parish, township, or place, for the nomination of surveyors, as aforesaid, shall agree in the choice of any particular person of skill and experience, to serve the said office of surveyor for such parish, township, or place, and in the settling of a certain salary for his trouble therein, and shall return the name of such person, together with the list (c) herein before directed, to the justices of the peace, at their said sessions, to be held in the week next after the Michaelmas quarter sessions; that then, and in every such case, it shall and may be lawful for the said justices, if they shall think proper, to appoint such person to be surveyor for such parish, township, or place, and allow him the salary mentioned in such agreement, which shall be raised and paid in the same manner as the salary hereinbefore mentioned is directed to be raised and paid." Death or Removal of Surveyor]-Sect. 5, continues, "And in case any surveyor to be appointed under the authority of this act shall die, or become incapable of executing that office, before such next special sessions for appointing surveyors, the said justices, or any two of them, shall and may, at some special sessions, nominate and appoint such person or persons as they shall think proper, to execute the said office, until such next special sessions for appointing surveyors, as aforesaid; and, if such deceased surveyor had a salary, they may allow the same salary to his successor, in proportion to the time he shall serve the said office; and if the said justices of the peace, at their said special sessions, or at any time afterwards, pursuant to the powers of this act, shall appoint more than one person for surveyor of any parish, township, or place, all and every person or persons so appointed shall be comprehended under the word surveyor in every part of this act." Abstract of Act]-Sect. 70. "And in order to have the contents of this act more generally communicated and known," it is enacted, "that the justices of the peace within their respective limits shall, at every special sessions to be holden in the week next after the Michaelmas general quarter sessions of the peace (d), procure and deliver, or cause to be procured and delivered, a printed abstract of the most material parts of this act to every surveyor to be then appointed by them respectively, as the charge hereby directed to be given.” Clerk's Fees]-Sect. 48, 70. And the surveyor shall pay to the justices clerks for the appointment and charge the sum of one shilling. Exception as to Bristol]-By s. 85, it is provided, that nothing in this act contained touching the appointment of surveyors shall be deemed to extend to the city of Bristol. (2) His Duty in General. To detail the whole duty of the surveyor and his assistant, would be to state over again the various provisions in the acts of Parliament relating to highways. We must therefore content ourselves with noticing in this place only the principal enactments affecting such duty. Surveyor-Several duties of the surveyor are particularly pointed out in (a) For which the justice's clerk is to have sixpence, and no more. 13 Geo. III. c. 78, s. 48. VOL. III. F (b) Form (42), post. If two parts out of three of those assembled in any pa rish, &c., agree to skill to serve as surveyor, and in settling his salary. choose a person of Justices may ap point him, and al low the said salary. If surveyor dies, or becomes incapable of executing the office, the justices may appoint him the salary. another, and allow If more surveyors than one appointhended under the word surveyor. ed, all are compre Abstract of act to be delivered to sur veyors. Fee for appointment and charge. Exception as to DUTY OF SUR VEYOR. 13 Geo. 3, c. 78. the 48th sect. of the 13 Geo. III. c. 78, which enacts "That the surveyor of the highways for every parish, township, or place, shall carefully and diligently collect, or cause to be collected, the several assessments, forfeitures, penalSurveyor's duty in ties, sums of money and compositions, directed and allowed to be received general. and taken within the same, by virtue of this act, within the year for which he is appointed surveyor, and shall keep one or more book or books, in which he shall fairly enter a just, true, and fair account of all such money as shall have come to his hands, or to the hands of the said assistant, in respect of such parish, township, or place, by virtue and for the purposes of this act, and to whom and on what occasion he shall have paid or applied the same; and shall also enter in such book or books, a list or lists of all such sums of money as shall then remain due and owing from any person or persons, in respect of the payments, compositions, assessments, penalties or forfeitures to be collected, received, or taken, for and in respect of the said highways, by virtue of this act; and the said surveyor shall also enter in the said book or books, an account of all tools, materials, implements, and other things provided, or to be provided, by order of the inhabitants, at a vestry or other public meeting, for the repair of the said highways, at the public expense of such parish, township, or place; and shall produce such books and the assessments made within that year, for the purposes of this act, unto the inhabitants of the parish, township, or place, to which they belong, at a vestry or other public meeting, to be held for that purpose, within fifteen days before the said special sessions, so to be held in the week next after Michaelmas quarter sessions, as aforesaid, to the intent that the said accounts, assessments, and lists may be inspected by the inhabitants of such parish, township or place respectively; and every such surveyor shall, after the said books and assessments shall have been produced at such meeting, take the same to such justice of the peace for the limit wherein such parish, township, or place doth lie, and on such day and at such hour as shall be agreed upon at such meeting, some day after the said meeting of the inhabitants, and before such last-mentioned special sessions, and then and there verify such account, or any part thereof, upon oath, if required; and such justice may allow such account if he finds it just, or postpone it until such special sessions, if he finds cause for so doing, in which case it may be settled and allowed at such special sessions after the parts objected to by such justice shall have been explained and verified by proper evidence, to the satisfaction of the justices at such special sessions; and in case any articles contained in such accounts shall not be explained and proved to the satisfaction of such justices, they may disallow the same; and whenever the said accounts shall be so settled and allowed, or disallowed as aforesaid, all such books and assessments shall be transmitted to the churchwarden or overseer of the poor for such parish, township, or place respectively, or, if the place be extra-parochial, then to some principal inhabitant thereof, to be kept for the use of such parish, township, or place; and the said surveyor shall forthwith deliver a duplicate of such book and account, together with all sums of money as shall remain in his hands, and likewise all tools, materials, implements and other things as aforesaid, to the succeeding surveyor for such parish, township, or place, in case any new surveyor shall be appointed, or retain the same in his hands, and account for them in his next account, if he shall be continued surveyor for such parish, township, or place, in the succeeding year; and it shall and may be lawful for the succeeding surveyor, and he is hereby authorized and required to recover, collect, and receive all such sums of money which shall be due and owing as aforesaid, by all such ways and means, as fully and effectually, to all intents and purposes, as the preceding surveyor could, might, or ought to have recovered, collected, or received the same; and in case such surveyor shall Surveyor liable to neglect to provide such book or books, or to enter such respective accounts and lists therein, or to deliver the said book or books, and such duplicate thereof, and such assessments, tools, materials, implements and other things in manner aforesaid, he shall, for every such offence, forfeit any sum not exceeding five pounds, nor less than forty shillings; and in case he shall make default in the paying or accounting for the money so remaining in his forfeitures. |