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.

piced by the company be discharged or suspended from his offi or Se, abscond or absent himself, and if such collector or oth cficer, or the wife, widow, or any of the family or representativ of my such collector or other officer, refuse or neglect, after sev days' notice in writing for that purpose, to deliver up to the ca pany, or to any person appointed by them for that purpose, station. ¿welling-bouse, ofce or other building, with its appe tenances, or any bocks, papers or other matters belonging to f company in the possession or custody of any such collector or offic at 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 perš found therein, and to take possession thereof, and of any books, papers or other matters, and to deliver the same to the co pany, or any person appointed by them for that purpose."

RATES. 147

L Recovery of Poor and other rates.

II. Ecting 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. Eer 30 L. J. N. S.) M. C. 117; 3 Law T., N. S. 700] churchwardens sa overseers, or any of them, by warrant from any two justices, 14 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 pa 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 heres be rated or assessed in or by any rate or assessment for the r 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 manners a poor rate" (s. 1). By the same section, which recites that "1 provision is made for levying the costs and expenses incurred the overseers of the poor or the surveyors of highways in

c. 14.

147 Making of Rates.] The enactments as to making and pulbe rates and assessing owners instead of occupiers, are given in tit. " 148 Proceedings cannot be taken in the county courts for rates a action lies for them (Stevens v. Evans, 2 Burr. 1152; 1 Bla. Rep. 24 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

c. 14.

[32 & 33 Vict. c. 41, s. 17.]

12 & 13 Vict. but the rate is deemed to be made on the day when it is allowed by the justices, or if the justices sever in their allowance, then on the day of the last allowance, 32 & 33 Vict. c. 41, s. 17], to a justice (after the expiration of seven days after the demand (54 Geo. 3, c. 170, s. 12), who issues his summons to the party making default in payment to appear before two justices [ride the Forms; which may be served by the complainant, a constable or other person upon the defaulter personally, or by leaving the same with some person for him at his or her last place of abode a reasonable time before the day of appearance, and on nonappearance the justices may proceed ex parte on proof on oath of 25 & 26 Vict. the service (s. 5). 150 The 25 & 26 Vict. c. 82, in order "to proc. 82.

vide for the more economical recovery of poor rates and other local rates and taxes," enacts (by s. 1),-" where any number of local rates and taxes, whether of the same or of different kinds, are due from the same person, the rates and taxes so due may be included in the same information, complaint, summons, order, warrant or other document required by law to be laid before justices or to be issued by justices, and every such document as aforesaid shall, as respects each rate or tax comprised in it, be construed as a separate document, and its invalidity as respects any one rate or tax shall not affect its validity as respects any other rate or tax comprised in it:-no costs shall be allowed in respect of several informations, complaints, summonses, orders, warrants, or other such documents as aforesaid, in cases where, in the opinion of the justices or court having jurisdiction over the said costs, one information, complaint, summons, order, warrant, or other document as aforesaid might have sufficed, regard being had to the provisions of this act." [The justices acting under this enactment should insert in the same document only such claims as are enforceable by the same complainant.]

Hearing.] The proofs necessary at the hearing, which must take place before two justices, will be—the making of the rate, and the signing of the declaration at the foot, the allowance by two jus

sect. 11, which limits the time for making the complaint to six months (Vol. I. p. 135), apply to the recovery of rates as has been supposed, for in issuing a distress warrant the justices act as ministerial and not as judicial officers; and no order of payment is necessary, for the rate is the order, and consequently the case is not within the operation of the 11 & 12 Vict. c. 43 (Sweetman v. Guest, 37 L. J. (N. S.) M. C. 59; 18 Law T., N. S. 52). If these cases had been within the latter act, there would have been no necessity for the provisions in the act of the next session, 12 & 13 Vict. c. 14 (noticed p. 1584), as to costs, terms of imprisonment in default of distress, &c., as 11 & 12 Vict. c. 43, had already contained similar provisions.

150 In case incorporated companies are the defaulters the summonses are to be served in the same manner as the demand of payment of the rates may be made, for which see Note 152, post, p. 1585.

c. 14.

tices,-the publication of the rate [on the next Sunday after the 12 & 13 Vict. allowance, 17 Geo. 2, c. 3, s. 1],-151 the rating of the defendant,the demand by the overseer or other person authorized,—152 and the nonpayment [for seven days after such demand and previous to issuing the summons (54 Geo. 3, c. 170, s. 12)],—and under the 59 Geo. 3, c. 12, s. 19, or 13 & 14 Vict. c. 99, as respects highway rates, and 32 & 33 Vict. c. 41, as regards poor rates made after 29th September, 1869, where the owner is rated as such for small tenements, not being the occupier, there must, in the case of a highway rate, be the additional proof of the order or resolution of the meeting declaring that the owners shall be rated instead of the occupiers thereof,-153 but this proof is not necessary as to a poor rate made

151 Evidence of making and Publication of Poor Rate.] See 32 & 33 Vict. c. 41, s. 17, p. 1584, as to date of allowance of rate. By sect. 18 of the same act, the production of the book purporting to contain a poor rate, with the allowance of the rate by the justices, shall, if the rate is made in the form prescribed by law, be prima facie evidence of the due making and publication of such rate."

152 Modes of demanding Rates.] A demand of rate need not be personal on the person assessed (Reg. v. Justices of Gloucestershire, 24 J. P. 39), a demand notice left at his house being sufficient (Yewdall v. Craven, 11 Law T., N. S. 368). "The Poor Law Amendment Act, 1868," 31 & 32 31 & 32 Vict. Vict. c. 122, has the following enactments thereon:-Sect. 39, "when a c. 122, ss. 39, poor rate shall be made and assessed upon any land or premises, and the 40. Occupier thereof is not living on such land or premises nor in the parish for which the rate shall be made, or the owner, if assessed for such rate in the place of the occupier, is not living in such parish, a demand of the rate in writing delivered to the person having the custody of the land or premises, or if no such person can be found, then affixed upon some conspicuous part of the land or premises, shall be deemed a sufficient demand to justify proceedings for the nonpayment of such rate;-and where the residence or place of abode of the person assessed is not known to the overseers, and cannot be ascertained upon inquiry at the said land or premises, the summons for the nonpayment of the rate may be served in like manner." Sect. 40, "when a poor rate is assessed upon any corporation aggregate, joint stock or other company, or any conservators or other public trustees, a demand for payment, either made by letter sent through the post addressed to the clerk or secretary or other principal officer of the corporation, company, conservators, or trustees at the office of such corporation, company, conservators, or trustees, or made personally upon such clerk, secretary, or officer at such office, shall be deemed a sufficient demand,—and a summons for the nonpayment of such rate may be served in like manner."

153 Proceedings against Owners of Small Tenements.] Where owners are 13 & 14 Vict. assessed under the statute 13 & 14 Vict. c. 99, the highway rate may be c. 99. levied on the goods of the owners in the same way as the occupiers when assessed; and the goods of the occupiers are liable to be distrained as if such rate was assessed on such occupier (s. 5). It is optional, therefore, with the complainant who he will have summoned. If the owner is assessed to the poor rate under 59 Geo. 3, c. 12, s. 19, the rate is enforced against him in like manner as against an occupier. The 13 & 14 Vict.

c. 99, was repealed by "The Representation of the People Act, 1867," 30 & 31 Vict. 30 & 31 Vict. c. 102, s. 7, so far as it relates to the poor rate in parlia- c. 102, s. 7. mentary boroughs (and see Stamper v. Churchwardens, &c., of Sunderland,

37 L. J. (N. S.) M. C. 137); and by 32 & 33 Vict. c. 41, s. 6, the 13 & 14 32 & 33 Vict. Vict. c. 99, "and so much of any local statute as relates to the rating of c. 41, ss. 6,

11, 12.