may, without prejudice to any other mode of recovery, apply for the appointment of a receiver to two justices (a) who are hereby empowerd, after hearing the parties, to appoint in writing under their hands and seals some person to collect and receive the whole or a competent part of the rates liable to the payment of the principal or interest in respect of which the application is made, until such principal or interest, or both, as the case may be, together with the costs of the application and the costs of collection, are fully paid; And upon such appointment being made all such rates, or such competent part thereof as aforesaid, shall be paid (b) to the person appointed, and when so paid shall be so much money received by or to the use of the mortgagee or mortgagees of such rates, and shall be rateably apportioned between them: Provided always, that no such application shall be entertained unless the sum or sums due and owing to the applicant amount to one thousand pounds, or unless a joint application shall be made by two or more mortgagees or other persons to whom there may be due, after such lapse of time and demand as last aforesaid, monies collectively amounting to that sum (c). BYELAWS. local board CXV. And be it enacted, that all byelaws (d) made by Byelaws of the local board of health under and for the purposes of this not to be in Act shall be in writing under their seal (e), and the signa (a) See sect. 2, ante. (b) The practical effect of this would be the payment by the collectors of the rates which they collect to the receiver. (c) See the extension of the power of appointing a receiver, in the case where there shall be failure to elect or a lapse of the local board of health, in 21 & 22 Vict. c. 98, s. 10; in such case the receiver may make as well as receive and collect the rate. (d) The board not being incorporated have no general power to make byelaws independently of the provisions of the Act. Q. v. Mary Wood, 5 E. & B. 49. (e) As to this seal, see sect. 35, ante. Although all local boards are now incorporated, the distinction of non-corporate districts still re force till confirmed by ture of any five or more of their number, or (in the case of a corporate district) under the common seal; secretary of state. Notice of confirmation, &c. And the said local board may by any such byelaws impose upon offenders against the same such reasonable penalties as they shall think fit, not exceeding the sum of five pounds for each offence, and in the case of a continuing offence a further penalty not exceeding the sum of forty shillings for each day after written notice (f) of the offence from the said local board (g); And the said local board may alter or repeal any such byelaws by any subsequent byelaws, sealed and signed (h) or (in case of a corporate district) sealed, as last aforesaid: Provided always, that all such byelaws imposing any penalty shall be so framed as to allow of the recovery of any sum less than the full amount of the penalty: Provided also, that no such byelaws shall be repugnant to the laws of England or to the provisions of this Act, and the same shall not be of any force or effect unless and until the same be submitted to and confirmed by one of Her Majesty's principal secretaries of state, who is hereby empowered to allow or disallow the same, as he may think proper (i): Provided also, that no such byelaws shall be confirmed unless notice of intention to apply for confirmation of the mains, and therefore it will be safer to have the byelaws in such districts still signed by five members. It will be found that the making of byelaws is authorized by ss. 34, 37, 55, 62, 64, 66, and 81 of this Act, and by ss. 32, (3,) (4,) 34, and 50, (2,) of 21 & 22 Vict. c. 98, by the 25 & 26 Vict. c. 61, s. 25, and by several sections of the incorporated Acts. (f) See sect. 150, post, as to the service, and 21 & 22 Vict. c. 98, s. 61, as to the authentication of notice. As to proof of the byelaw, see s. 35, ante, and the 8 & 9 Vict. c. 113, s. 1, and the 14 & 15 Vict. c. 99, s. 14, may be referred to. (g) The recovery of the penalty for the breach of the byelaw is provided for in sect. 129, post. (h) See above. (i) The confirmation by the secretary of state, however, gives no validity to a byelaw not warranted by the provisions of the Act. Q. v. Mary Wood, 5 E. & B. 49. same shall have been given in one or more of the public newspapers usually circulated within the district to which such byelaws relate one month at least before the making of such application (k); And for one month at least before any such application a copy of the proposed byelaws shall be kept at the office of the local board of health, and be open during office hours thereat to the inspection of the ratepayers (1) of the district to which such byelaws relate, without fee or reward (m); And the clerk shall furnish every such ratepayer who shall apply for the same with a copy thereof or of any part thereof, on payment of sixpence for every one hundred words contained in such copy. be printed, CXVI. And be it enacted, that all byelaws made by the Byelaws be local board of health in pursuance of this Act shall be printed, &c. and hung up in the office of the said local board; And copies thereof shall be delivered to any ratepayer (n) of the district to which such byelaws relate, upon his application for the same. Powers transferred, &c. to be sur CXVII. And be it enacted, that the local board of health Local board within the limits of their district shall, exclusively of any veyors of other person whatsoever, execute the office of and be surveyor of highways, and have all such powers, authorities, duties, (k) These provisions will enable any person to apply to the secretary of state with the view of preventing confirmation of a byelaw. (1) It is presumed that any person who is actually rated to the current rate would be a ratepayer within the meaning of this clause, and that the definition given in sect. 20 is not applicable. But whether persons occupying rateable property who are not actually rated would be within the clause is doubtful. (m) The neglect of this regulation, would not as it seems invalidate the byelaws. (n) See note on sect 115, ante. It will be observed that for copies of the proposed byelaws a payment is to be paid, but not so in regard to the byelaws when made. highway; but existing and liabilities (n) as any surveyor of highways in England is now or may hereafter be invested with or be liable to by virtue of his office by the laws in force for the time being, except in so far as such powers, duties, or authorities are or may be inconsistent with the provisions of this Act (0); And the inhabitants of any district shall not in respect of any property situate therein be liable to the payment of highway rate or other payment, not being a toll, in respect of making or repairing roads or highways within any parish, township, or place, or part of any parish, township, or place, situate beyond the limits of such district (p): Provided always, that the several persons who at the time when this Act is applied to any district are surveyors of highways within the same district may recover any highway rate made in respect of the said district, and then remaining unpaid, in the same manner as if this Act had not been passed; And the money so recovered shall be applied, in the first place, in reimbursing themselves any expenses incurred by them as such surveyors, and in discharging any debts legally owing by them on account of the highways within their jurisdiction; And the surplus (if any) thall be paid by them to the treasurer, and carried (q) to the district fund account mentioned in this Act : (n) As to the liability of a local board for accidents arising out of defects in the highways, see Gibson v. The Mayor of Preston, in note on sect. 68, ante. But (0) This section left the power of the local board to make highway rates or to provide for the repairs of the highways out of the general district rate uncertain, Some local boards levied highway rates. several cases were brought before the courts as noticed in note on sect. 87, ante, by which it was ultimately determined that such highway rates were not valid. The 17 & 18 Vict, c. 69 (dated 31st July, 1854) confirmed all highway rates made prior to that Act by any local board of health, and indemnified the persons acting under the authority of such board in the enforcing of them. But the whole question is set at rest for the future by the provisions now contained in 21 & 22 Vict. c. 98, s. 37, which does not, however, expressly repeal this section, though it makes additional provisions. (p) See however the provision in 21 & 22 Vict. c. 98, s. 37, No. (4), as to this. (q) By 21 & 22 Vict. c. 98, s. 37, No. (6), it is to be carried to another account. It will be seen that sect. 87, ante, provides for the application of monies carried to the district fund account. Provided also, that neither the allowance by justices, nor the signature by the local board of health, shall be necessary in the case of any rate made by the local board of health under this Act (r.) liabilities to sewers, &c., discharged. CXVIII. And be it enacted, that, notwithstanding the Existing application of this Act to any district, the liability (s) of any make person (t) whomsoever to defray or contribute towards not to be the expense of making, completing, altering, amending, or maintaining any sewer, or any walls or works for protecting the land against the force or encroachments of the sea, or of paving or flagging or putting in order any street or part thereof within the district, shall, if incurred previously to the time when this Act is so applied, continue, and the same may be enforced, as if this Act had not been passed, and the rates to be levied under this Act shall be made only for purposes to which such liability does not extend. made only [**CXIX. And be it enacted (u), that it shall not be lawful for the Mortgage of local board of health to borrow or take up at interest any sum or sums rates to be of money upon the credit of any rates authorized to be made or col- with aplected under this Act, without the previous consent of the general board proval of of health.**] general board. (r) The 21 & 22 Vict. c. 98, s. 37, No. (5), contains a similar proviso in regard to the highway rate to be made by the local board hereafter. The local board do not by this section obtain any power over turnpike roads. Swinburn v. Robinson, 32 L. T. 123. (8) This liability exists either ratione tenurae, or under the provision of some local Act of parliament. The first class contains the cases where lands are held upon condition that the holder shall keep some public work, such as sea walls or great sewers, in repair. The second class is of great variety, and depends necessarily upon the terms of the particular statute which usually, for a special benefit to the party, has imposed the obligation of repairing and sustaining some public work of the nature above adverted to. Very common instances will be found in awards under inclosure Acts, where the commissioner has imposed the obligation of keeping drains passing by, or through, or under the allotment, in repair upon the allottee. (t) This word includes corporations. See sect. 2. (u) Repealed by 21 & 22 Vict. c. 98, s. 57, for the future. |