STATUTE DUTY. the owner of every such team or cart the forfeiture which every such person or persons would have incurred by virtue of the said act, in case no such team, cart, or labourer respectively had been sent." Inhabitants may which the statute duty shall not be called forth. By stat. 13 Geo. III, c. 78, s. 43, “in order to prevent as much as possifix certain times in ble any inconvenience to the persons liable to perform statute duty," it is enacted, "that it shall and may be lawful for the inhabitants of every parish, township, or place, at some vestry, or other public meeting or meetings, to be held pursuant to this act (a), to appoint three months in every year, within which no statute duty shall be performed; videlicet, one month in the spring, to be called the seed month; one month in the summer, for the hay harvest; and one other month in the summer, for the corn harvest: provided, that notice in writing (b) be given of the times so appointed to the surveyor of such parish, township, or place respectively, and also to the surveyor of every trunpike road lying within the same, within three days after every such meeting, and fourteen days at least before the beginning of each of such months." Statute duty may be compelled to be performed in kind. Labourer's wages. Militia men, &c. Poor persons. Clergymen. Non-occupiers. Indictment for non-repair. Power to transfer statute labour not pike roads to other highways. wanted on turn By the 34 Geo. III. c. 74, s. 6, justices may, with certain exceptions, order team duty to be performed in kind, and refuse a composition; and may order labourers to do statute duty, on payment of usual wages. See the provision, post, 26. By stat. 42 Geo. III. c. 90, s. 174, no serjeant, corporal, or drummer of the militia, nor any private man, from the time of his enrolment until his discharge, shall be compelled to serve as a peace or parish officer, or to perform any highway duty, commonly called statute work. As to poor persons, see the 34 Geo. III. c. 74, s. 5, post, 26. The inhabitants of a parish, into which a road is turned by turnpike trustees, are not bound to do statute work thereon. Wheller v. Cooper, 1 Bl. Rep. 603. But by 13 Geo. III. c. 84, s. 60, the surveyors of turnpike roads may, when necessary, enforce the powers given by the Highway Act. See as to statute labour on turnpike roads, 4 Geo. IV. c. 95, s. 80, post, Highways, Turnpike. Persons in holy orders are liable to statute duty, 3 Keb. 255, 476; 1 Vent. 273; and see R. v. Lacy, 5 B. & C. 702; 8 D. & R. 457, S. C.; post, 32. Notwithstanding the words of the statute requiring statute duty name only occupiers of land, yet, if the owner neither occupy nor let them, but suffer them to lie fresh, he shall be charged as much as if he had occupied them; for there is no reason that the public shall suffer for his negligence. Palm. 389; 2 Roll. 412. It is said, that he who keeps several draughts in a parish, is bound to send a team for each draught, whether he occupy any land in the parish or not; and, in like manner, he who occupies several plough lands, ought to send a team for each plough land, whether he keeps any draught or not. Raym. 186; 3 Keb. 567; Dalt. c. 26; Wellb. 133. It is no excuse for the inhabitants of a parish being indicted at common law for not repairing the highways, that they have done the full work required of them by statute. Dalt. c. 26. By the 3 Geo. IV. c. 126, s. 109, reciting-" whereas there may be turnpike roads in such a state and condition of repair that the statute duty required to be performed upon them may be dispensed with,"-it is enacted, "that, upon application by the surveyor, or by any two inhabitants of any place, in which such turnpike road lies, the justices, at any special sessions, upon full and clear evidence that the whole or any part of such statute duty may be conveniently dispensed with from such turnpike roads, without endangering the securities for the money advanced upon the credit of the tolls thereof, and that such statute duty is wanted for the repair of other highways within such parish, township, or place, may order the whole, or any part of such statute duty to be performed upon the highways, not being turnpike, under the direction of the surveyor thereof, during such time as to them shall seem reasonable." (a) As to such meetings, post, Sect. XI. (b) Form, Div. II. post. STATUTE DUTY. formance of sta- levying forfeit ures and arrears. By stat. 54 Geo. III. c. 109, s. 7, "all persons who shall refuse or neglect to perform any part of their statute duty in kind, on being regularly summoned by the surveyor for that purpose, shall forfeit and pay a sum equal to twice the amount of the composition for such statute duty as they shall have so neglected or refused to perform, according to the rates fixed by the justices under the provisions of this act; and the said persons shall also be liable to perform the said statute duty which they have so neglected or refused to perform, either in the same or in the following year; the pay- Application of forment of such forfeitures, and the arrears of such statute duty, to be enforced and applied to the benefit of the highway or turnpike road, as the case may be, to which the original neglected duty was due or owing, by the surveyor or surveyors for the time being, and under the same regulations, and in the same manner as other forfeitures may be levied, and statute duty may in other cases be enforced, by any of the provisions of any of the said hereinbefore recited acts." We have also seen, that the 13 Geo. III. c. 78, s. 37, ante, 18, and 34 Geo. III. c. 74, s. 2, ante, 17, impose penalties for neglect in performing statute duty. In Fawcet v. Fowler, 1 M. & R. 102; 7 B. & C. 394, S. C., it was considered that a conviction for not attending to do duty with proper tools was good, where the party did not attend at all. It was doubted whether a conviction for attending, but without tools, would be good, as it was urged, that the surveyor was bound to supply the tools. The conviction need not recite, that the work had been deemed necessary, &c. If it was not necessary, it seems it may be ground of appeal. Id. Though the notice by the surveyor is in the alternative, to do duty or compound for it, the conviction may be for not doing duty. Id. It is sufficient to state that the defendant is an occupier of lands, without shewing that he keeps a team, &c. Id. (2) Composition instead of Statute Duty. As observed by Mr. Wellbeloved, p. 137, to require a specific performance of the statute duty, might in many instances be injurious to the party liable, without being of proportionate advantage to the public, the legislature has therefore made several regulations, whereby the duty may be compounded for in money. A power, however, is given to the justices to require absolutely the performance of labour in kind, or a composition in money in lieu thereof, wherever either shall appear to be most beneficial to the repair of the highways. feitures. Composition inst stead of statute By stat. 13 Geo. III. c. 78, s. 38, persons liable to perform statute duty Power to commay, if they think fit, compound for the same for such sums as the justices pound. shall think fit, not exceeding the several amounts therein specified; but the amount and mode of ascertaining this composition is altered, and further regulated by the stat. 44 Geo. III. c. 52; and 54 Geo. III. c. 109. s. 2. By stat. 44 Geo. III. c. 52, s. 2, “ any person or persons liable to 44 Geo. 3, c. 32, perform statute duty, by sending one or more team or teams, draught or draughts, plough or ploughs, with men, horses, or oxen, in manner in the said recited act of the thirty-fourth year of his present Majesty's reign mentioned, shall and may compound for the same, if he, she, or they shall think fit, by paying to the surveyor of the highways, at the time and in the manner in the said act of the 13th year of his present Majesty's reign, (see 13 G. III. c. 78, s. 41, post, p. 28), mentioned such sum or sums of money as the justices of the peace for the limits wherein the parish, township, or place for which the said duty is liable to be performed is situate, or the major part of them at their special session to be held in the first week after Michaelmas quarter sessions, (see post, 48), in every year, shall adjudge and declare to be reasonable, not exceeding 12s. nor less than 3s. for each team, draught, or plough, for each day; and in default of their adjudging and declaring the same, the sum of 6s. for and in lieu of every day's duty, 22 COMPOSITION. 54 Geo. 3, c. 109. of ascertaining composition. Highways in General. And for each cart with two horses or for each team, draught, or plough. beasts of draught not exceeding 8s., nor less than 3s.; and in default of their adjudging and declaring the same, the sum of 48. And for each cart with one horse or beast of draught, not exceeding 6s. nor less than 2s.; and in "whereas by stat. 34 default of their adjudging and declaring the same the sum of 3s.' By stat. 54 Geo. III. c. 109, s. 4, after reciting Amount and mode Geo. III. c. 74, it is enacted, that it shall be at the option of the surveyor, either to require the statute duty in kind, or a composition in money in lieta thereof, at certain rates which are therein fixed: And whereas by stat. 44 Geo. III. c. 52, s. 2, the rates for such statute duty have been increased, so far as respects teams, draughts, ploughs, and carts, with one or two horses: And whereas the actual wages of labour, and the actual rate of hiring teams, carts, horses, or oxen, vary at different times and in different parts of England;" it is therefore enacted, "that in all cases in which it shall be made to appear to two or more justices of the peace acting within the district, by the surveyors of the highways, or of any turnpike road (a), that the maintenance and repair thereof can be more effectually carried on by a composition in money than by a performance of the statute duty in kind, he or they shall be at liberty to require such composition in money, upon receiving an authority (b) under the hands and seals of the said justices for that purpose, in lieu of either the whole or of any certain part of the statute duty, from the several persons who are bound by law to perform such statute duty; and the justices of the district at their special sessions for the highways (c) held in the week next after Michaelmas, yearly, shall fix such rates as they shall adjudge reasonable, as a composition in lieu of the teams, carts, horses, oxen, or labour, which such persons are bound in the proportions now fixed by law to provide or perform; which rates the said justices are hereby autho-rized and required annually to make known at such special sessions, due regard being had to the actual wages of labour, and to the actual rate of hiring teams, draughts, ploughs, carts, horses, or oxen, in the parish, place, or district in which such composition is required; and such composition shall be paid in the same manner, and within the same period, and subject to the same regulations and provisions, as are now by law established for enforcing the payment of compositions in lieu of statute duty: provided always, that in case where the whole composition in money shall not be required in lieu of the whole of the duty in kind, such composition shall be demanded in fair and equal proportions from each and every person liable to pay the same, unless any of the said persons shall prefer to pay a composition for the whole of their statute duty, according to the rates fixed in the manner herein directed." Two magistrates authorized the surveyor of a turnpike road which ran through twenty-nine townships, to collect for the repair of the road a comHe afterwards made an assessposition in lieu of the statute duty. The surveyor was not examined upon oath as to the necessity of the composition. ment of sixpence in the pound upon the annual value of the lands of a particular township through which the turnpike road passed. The sum to be collected under the assessment was the utmost which the surveyor of the turnpike roads could in any case demand from the inhabitants of the township, and much exceeded what was required to put that part of the road lying in the township into complete repair. The turnpike surveyor having returned the assessment to the surveyor of the highways of the township, directed him to collect the sums therein mentioned. Upon a refusal to pay the sum assessed by an inhabitant of the township, two magistrates granted It was held, that the warrant was a warrant of distress to levy the same. bad, the magistrates having no jurisdiction whatever; upon the ground that, in order to legalize the demand under the assessment, it ought to have been previously ascertained how many days' statute duty would be required to put the road into complete repair, the composition being demandable only (a) Form (8), post. (b) Form (9), post. (c) See post, 48, as to such sessions, in respect of that number of days' statute duty. & others, 5 B. & A. 425 (a). (a) Stanley, Bart. v. Fielden, Esq. Congreve, Esq., and Topham, 5 B. & A. 425. Trespass for seizing and taking the plaintiff's oxen, and detaining them for two days, until the plaintiff paid 317. 5s. to regain them. Plea, 1st, not guilty; 2dly, justification under a warrant of distress, to levy the sum of 291. 5s. due from the plaintiff, which had been assessed upon and demanded of him, as a composition in lieu of the statute duty that he was liable to perform, as occupier of lands in the township of Hooton. Replication, that the defendants committed the trespasses of their own wrong. At the trial at the Spring assizes for the county of Chester, 1821, it appeared that the cattle, for the detention of which this action was brought, were seized by the defendant, Topham, under a warrant of distress, granted by Fielden and Congreve, who were magistrates acting for the hundred of Wirral, in the county of Chester. The warrant was to levy a sum of money for the proportion of statute duty due from the plaintiff, as owner of lands in the township of Hooton. It was given in evidence on the part of the plaintiff, and was as follows: "Whereas, by an assessment made upon the occupiers of lands, &c. within the township of Hooton, in the district and hundred of Wirral, in the county of Chester, for the purpose of raising a composition in money, in lieu of the statute duty in kind, for the maintenance and repair of such part of the road and highway leading from the city of Chester to the Woodside Ferry, in the township of Birkenhead, in the county of Chester, as is situate within the township of Hooton, pursuant to an order or authority of two justices acting for the said district and hundred for that purpose, according to the directions of the statute in that behalf: Sir T. Stanley, Bart., was charged the sum of 291. 5s., as his share and proportion of the said assessment, in respect of the lands, &c. which he occupied within the township of Hooton; and whereas it appearing to R. Congreve and J. Fielden, Esqrs., being justices of the peace for the county of Chester, acting for the district and hundred of Wirral, upon the application of J. Johnson, one of the surveyors of the highways of the township of Hooton, that the said sum of 291. 58. had been duly demanded from the plaintiff, and that he had refused to pay it for the space of ten days after such demand made: they, the said R. Congreve and J. Fielden, did summon Stanley, Bart. v. Fiølden COMPOSITION. the said Sir T. Stanley personally to appear before them and other justices, to be assembled at a special sessions to be holden for the said district, and at a place and time therein mentioned, to shew cause why he refused to pay the said sum; and whereas, at a special sessions, now holden for the hundred of Wirral, at the place therein mentioned, before them, the said Sir T. Stanley had not appeared, pursuant to the summons, they the said J. Fielden and R. Congreve, adjudged him liable to pay the said sum, and therefore they commanded all constables, &c., to levy the same by distress, &c., together with the expenses of the distress." It was objected by the counsel for the defendants, on the plaintiff's case being closed, that there ought to be a nonsuit, inasmuch as the warrant must be considered prima facie evidence of all the facts therein stated, and if so, then it appeared, that, by an assessment pursuant to an order of two justices, according to the directions of the statute, the plaintiff was charged with the sum therein mentioned, and refused to pay it, and that this must be taken to be an adjudication, binding and valid, until regularly quashed. The learned judges refused to nonsuit the plaintiff, but reserved the point, and the cause proceeded. On the part of the defendants the following facts were proved. Crackenthorpe, the surveyor of the turnpike road, between the 29th September and 8th October, 1819, applied to the clerk of the magistrates for an authority, in writing, to empower him to call for a composition in money, in lieu of the statute duty. On the 8th October, a special sessions were held, at which Congreve, one of the defendants, and William Wilson Currie, acting justices for the district of Wirral, attended, and C., the turnpike surveyor, was present, but was not examined upon oath or otherwise; and then Congreve and Currie signed the following authority in writing: "It having been made appear to us, two of his majesty's justices of the peace acting within and for the district and hundred of Wirral, in the county of Chester, by Harvey Crackenthorpe, the surveyor of the turnpike roads from the city of Chester to the Woodside Ferry, in the township of Birkenhead, in the county of Chester, and from the said city to the Assembly House in Park-gate, in the township of Great Neston, in the said county, and from Great Neston to Woodside Ferry, and from the road leading COMPOSITION. It seems, that, in order to justify two magistrates in granting an authority to collect a composition in lieu of statute duty, it should be made to appear from the city of Chester to Park-gate aforesaid, to the road leading from the same city to the said Woodside Ferry, that the maintenance and repair of the said roads can be more effectually carried on by a composition in money than by a performance of the statute duty in kind; we do hereby authorize the said Harvey Crackenthorpe to require such composition, in money, in lieu of the whole statute duty, from the several persons who are bound by law to perform such statute duty;" and they fixed the rates of composition, for a cart and three horses, one driver, and one labourer, by the day, at 8s. 4d. On the 12th October, 1819, Johnson, the surveyor of the highways of the township of Hooton, received from Crackenthorpe, the surveyor of the turnpike road, a demand in writing of a list of the several persons liable to statute duty in that township, and an account of the yearly value of the lands, &c. which they respectively occupied. On the 27th October, Johnson returned the list required to Crackenthorpe, and in that return the plaintiff was mentioned as the owner and occupier of lands and tithes of the yearly value of 1,170%. The turnpike surveyor then made an assessment upon the whole annual value, of 6d. in the pound, the plaintiff's proportion of which was 291. 5s. This assessment was made on the assumption that three days' statute duty was required to repair the roads in the township. The whole line of road, for the repair of which the composition was required, was forty miles in extent, and passed through twenty-nine townships. At the time the demand was made upon the plaintiff, that part of the turnpike road which passed through the township of Hooton, and which was only fifty-nine yards in length, was in perfect repair, and in March, 1820, the turnpike surveyor offered to return 261. of the sum levied, and stated at the time, that in the course of that year only 31. had been expended in repairing the road in that township. Mr. Currie, the magistrate, who, as well as the defendant Congreve, By stat. 54 Geo. III. c. 109, s. 5, post, 27, the rate of composition, in lieu of statute duty, for every 20s. annual value, is to be a fiftieth part of the sum fixed by the justices as the composition for one day's labour of a cart and three horses and two able men. In this case that sum was 8s. Ad., of which twopence was the fiftieth part; and the whole statute duty being six days for had signed the authority to collect the composition, proved, that he had frequently conversed with Crackenthorpe on the necessity of having a composition before the authority was signed, and that he had desired the clerk to the magistrates to come prepared with an authority, that he had expressed his approval of the measure, that he had frequently conversed with Congreve, and that they were agreed upon the expediency of the measure; the subject was within their own knowledge, and they therefore signed the authority. Upon these facts, the Chief Justice stated to the jury, that upon the evidence it had not been made to appear by the surveyors of the roads to the justices, that a composition in lieu of statute duty was necessary; that the surveyor ought at all events to have been examined in the presence of both the magistrates; whereas in fact one only had examined him, and communicated the information to the other; and as the result of the inquiry was to affect the property of many persons, it was fit that (if not on oath) it should at least be of a satisfactory nature. The jury found a verdict for the plaintiff. A rule nisi for a nonsuit or a new trial having been obtained in last Easter term, first, upon the ground taken at the trial, that the warrant contained primâ facie evidence of the jurisdiction of the magistrates, and, therefore, that there ought to have been a nonsuit; secondly, that there was evidence given on the part of the defendant, to shew that it had been made sufficiently to appear to the justices by the surveyor, that a composition was necessary instead of statute duty; and, thirdly, that at all events the defendant Fielden was entitled to a verdict, inasmuch as he had not signed the authority to the surveyor to collect the composition, but merely the warrant, and that he was justified in so doing, by the documents referred to in the warrant. At the time of granting the rule, the Lord C. J. Abbott said, that it was important that justices should know the mode in which they are to exercise their every 50%. annual value, one shilling in the pound would be the sum required. But by the local turnpike act, the trustees of the turnpike road were entitled to require only three days' statute duty from the several townships through which the road ran, the composition for which would, of course, be sixpence in the pound. |