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VEYOR.

13 Geo. 3, c. 58. If surveyor dies shall account.

his executors, &c.

hands, within the time, and according to the directions aforesaid, he shall DUTY OF SURforfeit double the value of the money, which shall be adjudged by the said jurtices to be in his hands; and in case any such surveyor shall die before such respective accounts and lists shall be made out, or such monies, books, assessments, tools, materials, and implements shall be so delivered and paid, the executors or administrators of such surveyor shall make out, pay, and deliver the same in like manner, and under the like penalty, as such surveyor is hereby required and made subject and liable to; and every surveyor Fees to justices shall pay to the justices' clerks for the appointment and charge the sum of clerks. one shilling, for the bond sixpence, and for the account so to be examined and taken, and for the oath so to be administered, the sum of one shilling and no more; and if any person or persons shall receive any greater sum or fee for the business aforesaid than hereinbefore mentioned, he shall forfeit the sum of ten pounds for every offence."

Sect. 12. "That the surveyors of the highways, to be appointed by virtue of this act, shall, at all such times and seasons as they shall judge proper, view all the common highways, trunks, tunnels, plats, hedges, ditches, banks, bridges, causeways, and pavements within the parish, township, or place for which they shall be appointed surveyors (a); and in case they shall observe any nuisances, encroachments, obstructions, or annoyances, made, committed, or permitted in, upon, or to the prejudice of them or any of them, contrary to the directions of this act, they shall, from time to time, as soon as conveniently may be, give or cause to be given to any person or persons doing, committing, or permitting the same, personal notice, or notice in writing (b), to be left at his, her, or their usual place or places of abode, specifying the particulars wherein such nuisances, defaults, obstructions, or annoyances consist; and if such nuisances, obstructions, or annoyances, shall not be removed, and the ditches, drains, gutters, and watercourses aforesaid, effectually made, scoured, cleansed, and opened, and such trunks, tunnels, plats, and bridges made and laid, and such hedges properly cut and pruned, within twenty days after such notice of the same respectively given as aforesaid, then the said surveyors shall be, and they are hereby fully authorized and empowered, forthwith to remove such nuisances, obstructions, or annoyances, and open, cleanse, and scour such ditches, gutters, and watercourses, and make or amend such trunks, tunnels, plats, or bridges, and cut and prune such hedges, for the benefit and improvement of the said highways, to the best of their skill and judgment, and according to the true intent and meaning of this act; and the person or persons so neglecting to make, or open, and cleanse such ditches, gutters, or watercourses, or to cut or prune such hedges, during the time aforesaid, after such notice given, shall forfeit for every foot in length which shall be so neglected, the sum of one penny; and the said surveyors shall be reimbursed what charges and expenses they shall be at in removing such nuisances, obstructions, or annoyances, and making or opening, cleansing and scouring, such ditches, gutters, and watercourses, and in making or amending such trunks, tunnels, plats, or bridges, and in cutting and pruning such hedges respectively, by the person or persons who ought to have done the same, over and above the said forfeiture; and in case such person or persons shall, upon demand, refuse or neglect to pay the said surveyor his charges and expenses occasioned thereby respectively, and also the said forfeiture of one penny per foot, then the said surveyor shall apply to any justice of the peace, and, upon making oath before him of notice being given to the defaulter in manner aforesaid, and of the said work being done by such surveyor, and of the expenses attending the same, the said surveyor shall be repaid by such person or persons all such his said charges (c) as shall be allowed to be reasonable by the said justice, or, in default of payment thereof on demand, the same shall be levied in such manner as the penalties and forfeitures hereby inflicted are directed to be levied."

Surveyor's duty

of the condition of the highways, &c.,

on taking a view

within the district, in respect of nui

sances, obstructions, &c.

If the offender does not remove such ter notice, the surveyor shall do it, shall pay the charges thereof.

nuisance, &c., af

and the offender

As to the surveyor's duty in general, in respect of nuisances to highways, General reference. (a) Form (41), post. (b) Form (47), post. (c) Form (46), post.

DUTY OF SUR-
VEYOR.

Penalty, and where no penalty is imposed.

Indictment against at common law.

Witnesses.

Materials, &c. for repairing highways, may be laid

to be the property

of the surveyor of highways.

13 Geo. 3, c. 78.

ant surveyor.

Forfeitures for

see post, 59 to 65. As to his duty with respect to repairs, see ante, 12 to 17; to statute duty, ante, 17 to 20; to composition in lieu thereof, ante, 21 to 29; to getting materials, and being concerned in contracts, ante, 32; to widening, stopping up, &c. highways, and selling the old ones, ante, 37 to 47.

By stat. 13 Geo. III. c. 78, s. 50, "If any surveyor of the highways, after his acceptance of the said office, 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., nor less than 10s., at the discretion of the justice or justices having jurisdiction therein."

If the surveyor be guilty of any embezzlement or breach of duty, he may be indicted at common law. R. v. Anderson, MS.

Surveyors are made competent witnesses by virtue of the 68th sect. of the 13 Geo. III. c. 78, see post, 77.

As to actions brought against them, see post, 58, 83, 84.

The 7 Geo. IV. c. 64, s. 16, enacts, that, "In any indictment or information for any felony or misdemeanor committed on or with respect to any materials, tools, or implements, provided for making, altering, or repairing any highway within any parish, township, hamlet, or place, otherwise than by the trustees or commissioners of any turnpike road, it shall be sufficient to aver that any such things are the property of the surveyor or surveyors of the highways for the time being of such parish, township, hamlet, or place, and it shall not be necessary to specify the name or names of any such surveyor or surveyors."

Assistant Surveyor]-By 13 Geo. III. c. 78, s. 4, " The assistant, so to be Duty of the assist-nominated and appointed, shall, and is hereby required, to the best of his skill and judgment, to assist the said surveyor, whenever requested by him, in calling in and attending the performance of the statute duty; in collecting the compositions, fines, penalties, and forfeitures; in making and collecting the assessments; in making out and serving the notices authorized by this act; and in such other matters and things as shall be reasonably required of him by the surveyor, in the execution of his office as surveyor, pursuant to this act: And the said assistant shall justly and truly account with, and pay to, the said surveyor, or to his order, from time to time, according to the directions of this act, all the money which shall come to his hands as assistant, by the means aforesaid; and in default thereof, he shall forfeit neglect of his duty, double the value of the money by him so received, and not so paid and accounted for; and if the said assistant shall wilfully neglect or make default in the performance of any of the duty required from him by this act, he shall forfeit, for every such offence, any sum not exceding 57., nor less than 40s., at the discretion of the justice or justices of the limit within which Surveyors to send such assistant shall be appointed: And the said surveyor shall, and is hereby required to send orders, in writing, upon the said assistant, for the payment of all sums due to any person or persons, for work or materials, by amounting to 408. virtue of this act, which amount to 40s. or upwards; and the said surveyor or upwards, shall not be responsible for any sum or sums of money which shall be received by the said assistant, and shall not be actually paid to such surveyor, or to his order as aforesaid."

orders upon the assistant for payment of all sums

To collect the assessments within the year.

(3) His Accounts.

By stat. 13 Geo. III. c. 78, s. 48, "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, penalties, sums of money, and compositions, directed and allowed to be received 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 reccived and paid; 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;

To keep a book

and enter an account of monies

and of monies due;

"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;

SURVEYOR'S

ACCOUNTS.

13 Geo. 3, c. 78.

And the said surveyor shall also enter in the said book or books an and of impleaccount of all tools, materials, implements, and other things provided, or to ments; 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; (Vide 55 Geo. III. c. 68, s. 6, ante, 48); 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; (Vide 55 Geo. III. c. 68, s. 6, ante, 48); and then and there verify such account, or any part thereof, upon oath (a), if required; "And such justice may allow such account (b) 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 extraparochial, 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 produce the

book at a public meeting:

and verify his ac

counts upon oath before a justice;

which may be allowed by the justice, or postponed to the special sessions.

Books then to be delivered to a overseer, or princhurchwarden or cipal inhabitant, thereof to the suc ceeding surveyor; tools, c

and a duplicate

also all monies,

And it shall and may be lawful for the succeeding surveyor, and he is Succeeding surhereby authorized and required to recover, collect, and receive all such sums of veyor may collect 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;

arrears.

"And in case such surveyor shall neglect to provide such book or books, Surveyor neglector to enter such respective accounts and lists therein, or to deliver the said ing his duty.

book or books, and such duplicate thereof, and such assessments, tools, ma-
terials, implements, and other things, in manner aforesaid, he shall, for every

such offence, forfeit any sum not exceeding 5l., nor less than 40s. (c). And Penalty.
in case he shall make default in the paying or accounting for the money so
remaining in his hands, within the time, and according to the directions
aforesaid, he shall forfeit double the value of the money which shall be ad-
judged by the said justices to be in his hands;

And in case any such surveyor shall die before such respective ac- Surveyor dying. counts and lists shall be made out, or such monies, books, assessments, tools, materials, and implements shall be so delivered and paid, the execu

(a) Form (44), post.

(b) Form (45), post.

(c) Form (48), post.

SURVEYOR'S
ACCOUNTS.

13 Geo. 3, c. 78.
Clerks' fee.

Decisions as to accounts.

tors or administrators of such surveyor shall make out, pay, and deliver the same, in like manner, and under the like penalty, as such surveyor is hereby required and made subject and liable to;

"And every surveyor shall pay to the justices' clerks for the appointment and charge the sum of 1s., for the bond 6d., and for the account so to be examined and taken, and for the oath so to be administered, the sum of 1s. and no more; and if any person or persons shall receive any greater sum or fee for the business aforesaid than hereinbefore mentioned, he shall forfeit the sum of 101. for every offence."

Decisions as to Accounts]-If a surveyor be guilty of any embezzlement or breach of duty, he may be indicted. Rer v. Anderson, MS.

The 13 Geo. III. c. 78, s. 48, requires, that the accounts of the surveyors of highways should be laid before one justice, and if he refuse to allow them, they are to be taken before the justices at petty sessions, where such parts as were objected to by the one justice are to be examined, and to be allowed or disallowed, as the justices think fit; and it was held that the justices, even at petty sessions, have no original jurisdiction over the accounts; and, an order having been made by them for the allowance of a surveyor's account, which had not been previously laid before one justice, the Court granted a certiorari to remove it, and quashed the order. R. v. Justices of Somersetshire, 5 B. & C. 816; 6 D. & R. 469, S. C.

Where the justices at petty sessions made an order, allowing the accounts of a surveyor, which accounts had not previously been verified before a single magistrate, pursuant to this section, it was held that they had no jurisdiction, that the whole proceeding was coram non judice, and that the order must be quashed. R. v. Justices of Somersetshire, 8 D. & R. 733.

Where surveyors exhibited their accounts before one magistrate, but did not take the assessments with them, for which reason the magistrates did not proceed to investigate the accounts, but referred the whole of them to the justices at petty sessions, by whom they were allowed; it was held that such allowance was invalid. R. v. Justices of W. R. Yorkshire, 6 B. & C. 152.

The accounts must, according to the statute, in the first place be produced at a vestry meeting; they must then be carried before such justice as the meeting shall appoint, and afterwards an appeal against the items objected to by that justice may be heard at the petty sessions, whose jurisdiction shall be final.

Though it is the duty of the surveyor to account for money which comes to the hands of the assistant, yet, by the latter end of sect. 4, of the 13 Geo. III. c. 78, ante, 56, "the said surveyor shall not be responsible, &c."

He is not personally liable for repairs done by a farmer employed by order of the commissioners of turnpike roads. The farmer must look to the commissioners or treasurer. 1 Sir W. Bl. 670.

No appeal lies against the accounts; nor can any order be removed by certiorari, unless made by a person having no jurisdiction, as an order made by the special sessions before an allowance by a single justice. See R. v. Somerset, and R. v. Yorkshire, supra. See also tit. Certiorari, Vol. I.

It has been held, upon an appeal against an order for the allowance of overseers' accounts, that a magistrate, being a rated inhabitant of the parish, cannot vote either on the determination as to the appeal, or on a question as to granting a case for the Court of King's Bench. R. v. Gudbridge, 5 B. & C. 459; 8 D. & R. 217, S. C.

The inhabitants of a parish are admissible witnesses in an action by the surveyor against his predecessor for penalties for not accounting, and for the balance of monies in his hands. Hendebourck v. Langston, M. & M. C. N. P. 402. See the 54 Geo. III. c. 170, s. 9, post, 70.

XIII. Injuries and Annoyances to and upon Highways.

And herein:-1. Of the Breadth of Wheels and Number of Horses; 2. Trees, Hedges, &c.; 3. Ditches, Drains, &c.; 4. Alehouses near Bridges;

5. Encroachments on Highways; 6. Laying Stones, Rubbish, &c.; 7. Leaving Carts, &c.; 8. Misbehaviour of Drivers, &c.; and 9. Nuisances and Injuries to Highways, at Common Law. Astothe Remedies in General, see post.

(1) Breadth of Wheels, and Number of Horses. By stat. 13 Geo. III. c. 78, s. 55, after reciting that whereas the highways, not being turnpike roads, are much prejudiced by the narrowness of the wheels of the several carriages travelling thereon, and by the excessive burdens loaded in such carriages,' it is enacted "That no waggon, having the sole or bottom of the fellies of the wheels of the breadth of nine inches, shall go or be drawn with more than eight horses; and that no cart having the sole or bottom of the fellies of the wheels thereof of the breadth of nine inches, shall go or be drawn with more than five horses; And that no waggon, having the sole or bottom of the fellies of the wheels of the breadth of six inches, and rolling on each side a surface of nine inches, shall go or be drawn with more than seven horses; And that no such waggon, rolling a surface of six inches only, shall go or be drawn with more than six horses; and that no cart, having the sole or bottom of the fellies of the wheels of the breadth of six inches, shall go or be drawn with more than four horses; And that no waggon, having the sole or bottom of the fellies of the wheels of less breadth than six inches, shall go or be drawn with more than five horses; and that no cart, having the sole or bottom of the fellies of the wheels of less breadth than six inches, shall go or be drawn with more than three horses, upon such highways, under the pains, penalties, and forfeitures hereinafter mentioned; that is to say, that the owner of such waggon or cart respectively shall forfeit the sum of 5., and the driver (not being the owner) the sum of 10s., for every horse or beast which shall be so drawing above the number hereby so respectively limited as aforesaid, to the sole use and benefit of the informer. But carriages moving upon wheels or rollers of the breadth of sixteen inches on each side thereof, with flat surfaces, are hereby allowed to be drawn with any number of horses or other cattle." Sect. 56. "Provided, that no prosecution shall be commenced before a justice of peace, by way of information, for any forfeiture incurred by the owner or driver of any carriage, having a greater number of horses therein than are allowed by this act, unless such information be laid within three days after the offence committed; and that no action shall be commenced for any such offence, unless the same be commenced within one calendar month after the offence committed; and that neither such information or action shall be laid or commenced, unless notice shall be given by the informer to the driver of every such carriage, on the day upon which the offence shall be committed, of an intention to complain of such offence; and if it shall appear to the justice, before whom such complaint shall be made, that the offender live so remote as to make it inconvenient to summon him to appear before such justice, the justice may dismiss the complaint, and leave the informer to his remedy by action at law."

Sect. 57. "Provided always, that it shall and may be lawful for the justices of the peace, at their respective general quarter sessions of the peace, to be held in the week after Michaelmas, to license, in such manner, and for such time, as they shall think fit, an increase of the number of horses to be drawn in carriages up any steep hill, or on any road not turnpike, within their respective jurisdictions, over and above the number hereinbefore limited, if, upon inquiry into the state and condition of such roads, they shall find any additional number of horses necessary; and, from time to time, at any Michaelmas quarter sessions, to revoke, alter, or vary the same, as they shall think fit."

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Sect. 58. "And provided, that if it shall appear, upon the oaths of credi- Exception as to ble witnesses, to the satisfaction of any justice or justices of the peace, or of snow and ice; any court of justice authorized to enforce the execution of this act, that any waggon, cart, or carriage, could not, by reason of deep snow or ice, be drawn by the number of horses or beasts of draught hereby respectively allowed; then, and in every such case, it shall and may be lawful for such justice

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