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holders of the parish or district where such work may be situate, 8 & 9 Vict. complaining that any such work is out of repair, after not less than c. 20. ten days' notice to the company, may order the company to put such work into complete repair within a period to be limited for that purpose; and if the company fail to comply with such order, they are to forfeit £5 for every day they shall fail so to do;-and the justices by whom any such penalty is imposed may order the whole or any part thereof to be applied in such manner and by such persons as they think fit, in putting such work into repair. [Form of Order, No. 7, Oke's "Formulist," 6th edit. p. 933.]

Execution of Accommodation Works, Gates, &c., Drains, &c., for Owners and Occupiers.] By sect. 68, railway companies are required Sects. 68, 69. to maintain certain works, such as gates, bridges, fences, drains, and watering-places for the accommodation of the owners and occupiers of lands adjoining the railway. By sect. 69, if any difference arise respecting the kind or number of any such accommodation works, or the dimensions or sufficiency thereof, or respecting the maintaining thereof, the same is to be determined by two justices, who are also to appoint the time within which such works shall be commenced and executed by the company. [This does not extend to mines. Reg. v. Fisher, 32 L. J. (N. S.) M. C. 12; 7 Law T., N. S. 325.] By sect. 70, if for fourteen days next after the time appointed for the Sect. 70, 71. commencement of such works the company shall fail to commence them, or having commenced shall fail to proceed diligently to execute the same in a sufficient manner, the party aggrieved by such failure may himself execute the works or repairs; and the reasonable expenses thereof are to be repaid by the company to him;-and if there be any dispute about such expenses, the same is to be settled by two justices. See sect. 71, as to further accommodation works being made by owner, &c. at own cost, as authorized by two justices.

V. Disputed Cases of Compensation for Land taken or Damage done.

Temporary Occupation of Private Roads.] By 8 & 9 Vict. c. 20, Sect. 30. s. 30, subject to the provisions herein and in the special act contained, the company, at any time before the expiration of the period limited for the completion of the railway, may enter upon and use any existing private road, &c.;—but before the company shall enter upon or use any such existing road, they are to give three weeks' notice of their intention to the owners and occupiers of such road, and of the lands over which the same shall pass, and in such notice state the time during which, and the purposes for which, they intend to occupy such road, and pay to the owners and occupiers of such road, and of the lands through which the same shall pass, such sation for the use and occupation of such road, either in a gross sum of money or by half-yearly instalments, as shall be agreed upon

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8 & 9 Vict. c. 20.

Sects. 6, 16.

between such owners and occupiers respectively and the compa or in case they differ about the compensation, the same is to settled by two justices, in the same manner as any compensation, exceeding £50, is directed to be settled by the said Lands Clau Consolidation Act. 146

Lands Clauses Act incorporated with 8 & 9 Vict. c. 20.] "The La Clauses Consolidation Act, 1845," 8 & 9 Vict. c. 18, contains a vari of provisions as to settling cases of disputed compensation for la before justices, which see ante, pp. 1447, 1448, tit. "Lands Clas Act." By sect. 6 of this act, 8 & 9 Vict. c. 20 (and see also s. 1 in exercising the power given to the company by the special act construct the railway, and to take lands, the company shall be su ject to the provisions of the 8 & 9 Vict. c. 18, making compensati to owners and occupiers," and, except where otherwise provided this or the special act, the amount of such compensation shall ascertained and determined in the manner provided by the sa Lands Clauses Consolidation Act for determining questions of com pensation with regard to lands purchased or taken under the pros sions thereof." See Knock v. Metropolitan Rail. Co., 38 L. J. (N.S C. P. 78; 19 Law T., N. S. 239, as to what the compensation ma [31 Vict. c. 18, be for. (See also s. 44.) [By 31 Vict. c. 18 (which authorizes t s. 15.] board of trade to grant an extension of time to railway compani for the purchase of lands), s. 15, "justices . . . in estimating th compensation to be made by the company to the owners or occupier of or persons interested in lands, shall have regard to and mak compensation for the additional damage (if any) sustained by the owners, occupiers or persons by reason of any extension of tim under this act."]

Sect. 140.

Mode of ascertaining Damages.] By sect. 140, "In all cases wher any damages, costs or expenses are by this or the special act, any act incorporated therewith, directed to be paid, and the metho of ascertaining the amount or enforcing the payment thereof is no provided for, such amount, in case of dispute, shall be ascertained and determined by two justices [see 31 Vict. c. 18, s. 15, supra); and if the amount so ascertained be not paid by the company other party liable to pay the same within seven days after demand the amount may be recovered by distress of the goods of the copany or other party liable as aforesaid." By sect. 141, if sufficient goods of the company cannot be found whereon to levy any such damages, costs and expenses payable by the company, the sam may, if the amount thereof do not exceed £20, be recovered by distress of the goods of the treasurer of the company;-but no such distress shall issue against the goods of such treasurer unless seven days' previous notice in writing, stating the amount so due, and

146 Vide tit. "Lands Clauses Act," ante, p. 1446.

demanding payment thereof, have been given to such treasurer, or 8 & 9 Vict. left at his residence;-and if such treasurer pay any money under c. 20. such distress as aforesaid, he may retain the amount so paid by him, and all costs and expenses occasioned thereby, out of any money belonging to the company coming in his custody or control, or he may sue the company for the same.

Method of Proceeding in Questions of Damage, Compensation, &c.]

By sect. 142, "Where in this or the special act any question of Sect. 142. compensation, expenses, charges or damages, or other matter, is referred to the determination of any one justice or more, it shall be lawful for any justice, upon the application of either party, to summon the other party to appear before one justice, or before two justices, as the case may require, at a time and place to be named in such summons; and upon the appearance of such parties, or in the absence of any of them, upon proof of due service of the summons, it shall be lawful for such one justice, or such two justices, as the case may be, to hear and determine such question, and for that purpose to examine such parties or any of them, and their witnesses on oath;--and the cost of every such inquiry shall be in the discretion of such justices, and they shall determine the amount thereof."

A justice may also, by sect. 134, receive a declaration from an Sect. 134. arbitrator or umpire appointed under the act, who is required to make such declaration before he enters into the consideration of the matters referred to him. [Form, No. 9, p. 934, Oke's "Formulist," 6th edit.]

VI. Payment of Special Constables for Railways.

An order for payment to the special constables appointed under 1 & 2 Vict. 1 & 2 Will. 4, c. 41 (ante, p. 1352), may be made by two or more c. 80. justices on treasurer of company, &c., oath being made by three or more credible witnesses, within one calendar month from appointment, that such appointment was occasioned by the behaviour, &c. of the persons employed upon the railway. Order to be sent to secretary of state, and, if allowed by him, to be binding;-may be levied by distress on goods of company by warrant of two justices. Secretary of state may disallow order altogether or in part, in which case the expenses are to be paid out of county rate, &c. (1 & 2 Vict. c. 80, ss. 1, 2, 3). [Form of Order, No. 10, Oke's "Formulist," 6th edit. pp. 934, 935.]

VII. Complaints against Officers of Railway Companies.

Officers not accounting.] See the provisions of the Companies Clauses Act, 8 & 9 Vict. c. 16, ante, p. 1350, which apply here.

Recovery of Possession of Toll Houses from Collectors.] By 8 & 9 8 & 9 Vict. Vict. c. 20, s. 106, "If any collector of tolls or other officer em- c. 20.

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picyed by the company be discharged or suspended from his offi orbe, abeered or absent himself, and if such collector or oth cficer, or the wife, widow, or any of the family or representativ of any such collector or other officer, refuse or neglect, after sev days notice in writing for that purpose, to deliver up to the com pany, or to any person appointed by them for that purpose, station, dwelling-house, office or other building, with its appu tenances, or any bocks, papers or other matters belonging to company in the possession or custody of any such collector or offe an the occurrence of any such event as aforesaid, then, upon app cation being made by the company to any justice, it shall be lawf for such justice to order any constable, with proper assistance enter upon such station or other building, and to remove any pers frand therein, and to take possession thereof, and of any s books, papers or other matters, and to deliver the same to the com pany, or any person appointed by them for that purpose."

RATES. 147

L Recovery of Poor and other rates.

II. Esting new Premises and apportioning Rates on Removal.

I. Recovery of Poor and other Rates.

By the stat. 43 Eliz. c. 2, s. 4, the present [or any succeeding subsequent. 17 Geo. 2, c. 38, s. 11, Overseers of East Dean v. Ever 30 L. J. N. S.) M. C. 117; 3 Law T., N. S. 700] churchwardens s overseers, or any of them, by warrant from any two justices may levy rates and all arrearages on persons refusing to contr according as they should be assessed, by distress and sale of offenders' goods; and, in default, two justices might commit the to gaol, "there to remain without bail or mainprize until ment;" but now, by 12 & 13 Vict. c. 14, the mode of proceeding 12 & 13 Vict. pointed out for the recovery of "any sum or sums to which person or persons is or are now [11th May, 1849] or may heresi be rated or assessed in or by any rate or assessment for the re of the poor or for the highways in England or Wales, or in or any other rate or assessment which by law now or hereafter is shall be directed to be enforced or recovered in the same manner a poor rate" (s. 1). By the same section, which recites that provision is made for levying the costs and expenses incurred the overseers of the poor or the surveyors of highways

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147 Making of Rates.] The enactments as to making and pub rates and assessing owners instead of occupiers, are given in tit. 148 Proceedings cannot be taken in the county courts for rates action lies for them (Stevens v. Evans, 2 Burr. 1152; 1 Bla. Rep Underhill v. Ellicombe, M Clel. & Y. 456).

recovery of the same respectively," the justices may order a 12 & 13 Vict. reasonable sum for the costs and expenses incurred in obtaining c. 14. the distress warrant to be levied with the rate [which could not formerly have been done, Clarke v. Woods, 17 L. J. (N. S.) M. C. 189; and these costs can be adjudged in cases where the proceeding for the rate is under a local act, Reg. v. Justices of New Sarum, 20 Law T. 207]. The justices in these proceedings act as ministerial and not as judicial officers (Sweetman v. Guest, 37 L. J. (N. S.) M. C. 59; 18 Law T., N. S. 52), and have no authority to adjudicate upon the rateability of the defendant, his liability to pay, or to inquire into the validity of the rate; for they could not set it right, though they should hold it to be bad (those questions being grounds for an appeal to the quarter sessions), and their jurisdiction is confined to an inquiry into the reasons why the rate has not been paid. See Reg. v. Justices of Kingston-upon-Thames and Phillips, 27 L. J. (N. S.) M. C. 199; Reg. v. Justices of Gloucestershire, 29 L. J. (N. S.) M. C. 117; 1 Law T., N. S. 294; Luton Board of Health v. Davis, 29 L. J. (N. S.) M. C. 173; 2 Law T., N. S. 172; Ex parte May, 31 L. J. (N. S.) M. C. 161. There are two exceptions to this rule:-1, where the party assessed has no assessable property in the parish; and 2, where certain forms and ceremonies in the making of the rate have not been complied with, such as the non-allowance by justices and nonpublication. The first exception includes the question of occupancy or non-occupancy of the premises rated by the person summoned, and if he is shown to be in the visible occupation of them, the justices are bound to issue their distress warrant, their duty in this respect being merely ministerial, and they cannot go into the question of whether or not the occupation be beneficial, which is matter of appeal to the quarter sessions (Reg. v. Justices of Warwickshire, 29 L. J. (N. S.) Q. B. 138; 2 Law T., N. S. 233; S. C. Reg. v. Bradshaw, 29 L. J. (N. S.) M. C. 176, confirming Overseers of Birmingham v. Shaw, 18 L. J. (N. S.) M. C. 89). See 11 & 12 Vict. c. 44, s. 4, Vol. I. p. 47, indemnifying justices granting a distress warrant for poor rate where the rate is defective. But if the rate be objected to on grounds which may render it invalid, or the parochiality of the party is in dispute, the justices should decline to interfere unless compelled.

Procedure.] One of the overseers or surveyors [or an assistant overseer appointed by the poor law commissioners, or vestry, or justices, or a collector of highway rates appointed under 5 & 6 Will. 4, c. 50, s. 36] in office at the time of commencing the proceedings, makes a complaint [of which there is no limited time, 149

149 11 & 12 Vict. c. 43, not applicable.] None of the provisions of Jervis's Act, 11 & 12 Vict. c. 43, Vol. I. pp. 127, 128, especially that of

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