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upon oath, to both the magistrates present, that the road can be more effectually repaired by such composition. It seems, also, that where the composition is to be collected in several townships, it ought to appear on the face of the authority itself, that, in the judgment of the magistrates, a composition, in lieu of statute duty, is advisable in each particular township. Id. In a case, however, which arose upon a neglect to perform statute duty, for which a penalty had been levied upon the plaintiff, his counsel objected to the conviction, that there was no allegation therein, that statute duty in kind was necessary; to which Lord Tenterden, C. J., answered, "That must have been ascertained before the surveyor's requisition, and must therefore be presumed." Fawcett v. Fowlis, 7 B. & C. 396; 1 M. & R. 102, S. C.; ante, 21.

The stat. 13 Geo. III. c. 78, s. 42, provides "That in every parish, township or place, where any person shall keep a draught or plough, and no carriage, he shall pay to the surveyor the sum of 1s. for every horse or pair of oxen or neat cattle used in such draught or plough, for every day's statute duty, on the day such duty is required to be performed, or pay according to

anthority. At the same time, the opinion of the Court was then very strong, that wherever an act of parliament required justices to take certain steps on some matter being made to appear to them, that matter must be made to appear to them on oath.-After argument against, and in support of, the rule, Abbott, C. J., said, "I am of opinion that enough has not been done to legalize the demand of this specific sum of money from the plaintiff. It appears from the evidence, that there had been an adjudication of two magistrates that a composition should be paid in lieu of statute duty in kind, and also an adjudication by which the composition was fixed to be at the rate of 8s. 4d. for a cart, three horses, a driver, and a labourer. Before, however, it can be ascertained how much any individual ought to pay as a composition in lieu of statute duty, it must be ascertained in some manner, and by some competent authority, how many days' labour will be required to repair the road. Now that certainly has not been done here, in distinct terms, in this case. It appears upon the evidence, that the turnpike surveyor having first required, from the surveyor of the highways of the township, a list of the several persons liable to statute duty, made an assessment at the rate of sixpence in the pound upon the whole annual value returned. He seems to have taken it for granted that he was entitled to require from the several townships through which the road passed a composition for the whole statute duty which, by law, he was entitled to demand, whatever the state of the roads might be. Now, I am of opinion, that he had no such right. If there were no composition, the inhabitants of the several townships could only be called upon to do so many days' statute duty as would be absolutely necessary for the re

pair of the roads; and if a composition be called for instead of the statute duty, that composition ought to be an equivalent for that number of days' statute duty.I think, therefore, in this case, that before the demand was made upon the plaintiff, it ought to have been ascertained, by persons having competent authority for that purpose, that so many days' statute duty would be required to put the road in question into a complete state of repair, and that it ought to have been notified to the inhabitants of the parish or township, that the composition required of them, of sixpence in the pound upon the annual value of their lands, was calculated upon the principle that it would require so many days' statute duty to repair the road. That not having been done in this case, I think, that the justices had no authority whatever to issue the warrant, and consequently that this rule must be discharged." And, per Bayley, J.—“A magistrate is not to be answerable for granting a warrant, if, at the time of granting it, he has documents before him (which are the acts of other magistrates) from which it appears he was justified in granting the warrant. But if the want of jurisdiction is manifest from all the proceedings before him at the time, then he grants the warrant at his peril." He also said, "I think, that the magistrates ought, in the exercise of their discretion, on the face of the authority itself, to have shewn, that, in their opinion, in each particular township, a composition in lieu of statute duty was advisable.""I also strongly incline to think, though, upon that point, I do not mean to inti, mate any decided opinion, that it should be made to appear upon oath to both the magistrates present that a composition was advisable."

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COMPOSITION.

34 Geo. 3, c. 74.

ed compositions, and to be paid to the surveyor.

Justices to summon defaulters,

&c.

the rate aforesaid (a), for the lands, tenements, woods, tithes, and hereditaments, which he shall occupy in such parish, township, or place, at the option of the surveyor."

By stat. 34 Geo. III. c. 74, s. 4, " which said several sums shall be conSums to be deem-sidered as compositions, and shall be paid to the surveyor of the parish, township, or place, in which they are charged, for the use of the highways therein, at the time such compositions are to be paid under the authority of the said act, or within ten days after; or in default of such payments, the said surveyor shall make application to a justice of the peace acting for the limit or district wherein such default shall be made, and the justice to whom such application shall be made, shall summon the party so making default to appear at some special or other petty sessions to be holden for such limit or district, and at which two justices at the least shall be present, to shew cause why he has refused or neglected to pay such composition money; and in default of appearance, or if on appearance he shall not make it appear to the satisfaction of the said justices that he is poor and indigent, and as such is an object deserving relief, such money shall be levied by distress and sale of the goods and chattels of the person or persons refusing or neglecting to pay the same, in such manner as the forfeitures for the neglect in performing the statute duty are hereby authorized to be levied and raised: Provided charged from pay always, that when on application as above-mentioned, the justices shall think proper to discharge any poor and indigent person from payment of the rate or composition money, such person shall, at any time be discharged from any expenses which may arise in consequence of such summons and appearance.' A particular remedy being pointed out by this section for the recovery of the composition, the surveyor cannot maintain an action of debt for it. Underhill v. Ellicombe, MacL. & Y. 450.

Poor persons dis

ment of expenses.

Justices may ex

rates.

Mr. Wellbeloved observes, p. 146, n., that the remedy contained in this clause appears to be applicable only to enforce the payment of compositions, which are levied upon the occupiers of land, who shall not keep a team, draft, or plough, and does not embrace the case of a composition in lieu of actual statute labour.

Sect. 5. "And whereas it may frequently happen that persons wholly gainempt poor persons ing their livelihood by the wages of daily labour, and occupying rateable tenefrom payment of ments within a parish, township, or place, by reason of age, sickness, a numerous family, or misfortune, may be in poor and indigent circumstances, and it may be expedient in certain cases to discharge such poor and indigent persons from all rates, assessments, or composition whatsoever, imposed by authority of the above recited act; "it is further enacted, "that, on the application of any poor and indigent person, to be discharged from the payment of the rate or composition, made to any two justices of the peace at any special or petty sessions, held for the limits wherein such poor and indigent person shall reside, the said justices (having first given notice (b) to the surveyor of the highways to appear on the part of the parish, township, or place, in which such poor person shall reside), shall inquire and examine into the situation and circumstances of the person making such application; and if it shall appear to the satisfaction of such justices that such person is really poor and indigent, and a deserving object of such relief, the said justices may and they are hereby empowered to exempt such poor and indigent person from the payment of all rates, assessments, or composition whatsoever imposed by the said recited act."

Justices may direct team duty to be performed in kind.

Sect. 6. "Provided, that if it shall appear to the justices, at their special sessions, to be held in the week next after Michaelmas quarter sessions, or at any other special or petty sessions (c), held within the limits of any parish, township, or place, at which two or more justices shall be present, that, from the directions herein-before given for the performing and compounding the statute duty, there will be difficulty in procuring the necessary carriage, or a sufficient number of labourers, for the repair of the highways, in any particular parish, township, or place, within their respective limits, without

(a) This rate is now regulated by the 54 Geo. III. c. 109, s. 5, post, 27.

(b) Form (18), post.

(c) As to such sessions, post, 48.

paying high and extravagant prices for the same, it shall and may be lawful for such justices to order (a) and direct the team duty, or so much thereof as they shall think fit, to be performed in kind within every such parish, township, or place, except in respect of such teams as belong to persons who do not occupy lands, tenements, woods, tithes, or hereditaments, of the annual value of 301. within the same; and also to order all such persons as shall gain their living by the wages of daily labour, or such part of them as they shall think fit, to perform six days' labour upon such highways in kind, either by themselves or other sufficient labourers, in case so many days' duty shall be required, upon being paid for such labour the usual and customary wages given to labourers in such parish, township, or place; provided, that if part of such teams, or labourers only are required, it shall be directed by the said order of the justices, in some given proportion, as one half, third, or fourth part thereof; and the surveyor shall, in that case, at a public vestry for such parish, township, or place, put the names of all the persons liable by this act to send such teams, into one hat or box, and the names of all the persons liable to perform such labour into another hat or box, and some inhabitant then present shall draw out such number from each, as shall be equal to the proportion so ordered by the said justices, and the persons so drawn shall perform such duty in kind for that year; and that if any such order shall be made or continued in the subsequent year, the same method shall be observed, but the names drawn in the preceding year shall not be put into such hat or box; and in every succeeding year, such method and regulation shall be observed by such surveyor, as to render the duty so required to be performed in kind, as equal amongst the several persons liable thereto as may be; which order of the said justices, so far as the same shall be extended, shall supersede the said power or liberty of compounding, and shall be binding and effectual to all intents and purposes whatsoever, and shall continue in force until it shall be discharged or varied by the justices at some subsequent special sessions for the highways within such limit, to be held in the week next after Michaelmas quarter sessions; any thing herein contained to the contrary thereof in anywise notwithstanding."

every

By stat. 54 Geo. III. c. 109, s. 5, “all persons who are liable under any of the provisions of 13 Geo. III. c. 78; 34 Geo. III. c. 74; and 44 Geo. III. c. 52, to contribute to the repair of the highways, by a payment of money in lieu of statute duty, shall contribute thereto in lieu of every day's statute duty, for 20s. of the actual annual value at the time of making the said assessment of the lands, tenements, woods, tithes, and hereditaments, which such persons shall respectively occupy in the parish, township, or place where they reside, or in any other parish, township, or place, a sum equal to one-fiftieth part of the sum fixed by the justices, at the time and in the manner by this act directed, as the composition for one day's labour of a cart, wain, or carriage, furnished with three horses and two able men, omitting any fractional part of the said sum which does not amount to one farthing; and all persons occupying more than 50l. per annum in the parish, township, or place wherein they reside, or in any other parish, township, or place, and less than 100%. per annum, shall contribute to the repairs of the highways in lieu of every day's statute duty, for every 20s. of the actual annual value at the time of making the said assessment of the lands, tenements, woods, tithes, and hereditaments, which such persons shall respectively occupy over and beyond the said sum of 50l. per annum, and under 100l., a sum equal to one-fiftieth part of the sum fixed by the said justices, at the time and in the manner by this act directed, as the composition for one day's labour of a cart, wain, or carriage, furnished with three horses and two able men, omitting any fractional part of the said sum which does not amount to one farthing; and so on progressively for every 20s. of the actual annual value of the lands, tenements, woods, tithes, and hereditaments which they shall respectively occupy over and beyond every additional 50l. per annum; and the said sum or sums shall be paid in the same manner and within the same period, and

(a) Form (6), post.

COMPOSITION.

Exceptions.

Labourers may ordered to do statute duty, on payment of the usual wages.

Person to perform drawn by lot.

duty in kind to be

54 Geo. 3, c. 109. Rate of composi tion for persons occupying land,

&c. under 501.; above 50l. and

under 100%; and so on progressively.

COMPOSITION.

54 Geo. 3, c. 109. Persons keeping carriages, though not occupying to

liable to composition.

subject to the same regulations and provisions, as are now by law established, for enforcing the payment of composition in lieu of statute duty."

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By sect. 6, every person who shall keep a coach, post chaise, chair, or other wheel carriage, and not keep a team, draught, or plough, nor occupy 50l. per annum in the parish, township, or place where he rethe amount of 50%, sides, shall pay to the surveyor or surveyors, in respect of every day's statute duty, for every horse which he or she shall use in drawing such carriage, such a sum as the justices shall, at the time and in the manner by this act directed, fix as the composition for one day's work of a horse; or shall, at the option of the surveyor or surveyors, pay in lieu of every day's statute duty, for every 20s. of the actual annual value of the lands, tenements, woods, tithes, and hereditaments, which he or she shall respectively occupy, a sum equal to one-fiftieth part of the sum fixed by the justices, at the time and in the manner by this act directed, as the composition for one day's labour of a cart, wain, or carriage, furnished with three horses and two able men, omitting any fractional part of the said sum which does not amount to one farthing; and the said sum or sums 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."

12 Geo. 3, c. 78. Justices may miti

gate the composition, where a perteam partly from

son maintains his

lands in another parish.

Surveyors to give

and place for compounding.

a

By stat. 13 Geo. III. c. 78, s. 40, "if any person or persons, who shall keep team, draught, or plough, and shall not occupy lands, tenements, woods, tithes, or hereditaments, to the value of 30l. per annum, in the parish, township, or place, where he shall reside, but shall in part maintain his horses and beasts of draught used in such team upon or from lands which he shall occupy in one or more adjacent parish or parishes, it shall and may be lawful for the said justices, at some special sessions, to mitigate and reduce the duty or composition so required to be performed or paid by such person or persons, in such manner, and to such sum, as they shall think just and reasonable." Sect. 41. "Provided, that the said surveyor of every parish, township, or notice of the time place, shall on some Sunday in November in every year, cause ten days' notice (a) at the least to be given in the church or chapel of such parish, township, or place; and if there be no church or chapel, or no service performed therein, then at the most public place there, and repeat the like notice in such church, chapel, or place, on the next succeeding Sunday, of the time and place when and where the persons permitted under the authority of this act, and inclined to compound for the said duty, in manner aforesaid, may signify to such surveyor their intention to compound; and all and every person or persons signifying the same, who shall then, or within the space of one calendar month afterwards, pay to such surveyor the composition authorized and allowed by this act, shall be discharged from the performance of such duty; which composition money shall be employed by the surveyor for the use of the highways; and that no composition shall be permitted, unless the same shall be paid at the day or within the time aforesaid; but in cases where the occupation of any lands, tenements, woods, tithes, or hereditaments, shall be changed, or any new occupant or inhabitant shall come to reside in such parish, township, or place, after the time appointed for such composition, then the person or persons occupying such lands, tenements, woods, tithes, or hereditaments, or so residing in such parish, township, or place, shall be allowed to compound in manner aforesaid; provided he, she, or they, shall pay the said composition money to the said surveyor within fourteen days after he, she, or they, shall enter upon such lands, tenements, or hereditaments, or shall come to reside in such parish, township, or place; and every tenant or occupier of any lands, tenements, woods, tithes, or hereditaments, who intends to quit the possession thereof within six calendar months from the time fixed for making such composition, shall and may compound for half the duty hereby required, and the succeeding tenant or occupier shall and may, in that case, compound or perform the duty in kind for the other half thereof; and if the surveyor shall receive from any person

How the composition money shall

be paid and employed.

(a) Form (5), post.

or persons a composition for more duty than shall be required from the other inhabitants and occupiers within the same parish, township, or place, for the same year, he shall repay such extraordinary composition money to such person or persons, so as to bring the duty to an equality amongst all such inhabitants and occupiers."

Sect. 42. "Provided, that in every parish, township, or place, where any person shall keep a draught or plough, and no carriage, he shall pay to the surveyor the sum of 1s. for every horse, or pair of oxen or neat cattle, used in such draught or plough, for every day's statute duty, on the day such duty is required to be performed, or pay according to the rate aforesaid for the lands, tenements, woods, tithes, and hereditaments, which he shall occupy in such parish, township, or place, at the option of the surveyor." Sect. 44. "And whereas by several acts of Parliament concerning turnpike roads, a certain part of the duty called statute duty is or may be directed to be performed on such roads, and it may happen, in some places, that the several persons liable thereto may have compounded for the same;" it is enacted, "that in all such cases, the surveyor of the highways of the parish, township, or place, where such composition shall have been made, shall pay to the treasurer or surveyor of such turnpike roads a certain part of the composition money so received, to be proportioned according to the number of days' duty which such person or persons was or were liable to perform on such turnpike road; which money shall be laid out and expended on such part of the said turnpike road as lies within the parish, township, or place, from which it was received, and not elsewhere; and if such surveyor of the highways shall refuse or neglect to pay to the treasurer or surveyor of such turnpike road such part of the said composition money so received by him, within twenty days after he shall have received the same, upon demand made by such treasurer or surveyor, the same shall and may be levied upon the goods and chattels of such surveyor, in such manner as penalties and forfeitures are by this act authorized to be levied."

(3) Assessments in Aid of Repairs, &c.

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of repairs.

If sufficient materials cannot be procured without purchase, or other ex- Assessmenss in aid penses are to be incurred, an assessment must be made. This is regulated by 13 Geo. III. c. 78, s. 30. And if such assessment, together with the statute duty, is insufficient, authority is given by the same statute, s. 45, to justices to remedy the defect.

The two assessments are limited to 9d. in the pound, but this is independent of the assessment to be made by s. 16, for a special purpose, post, 31. The powers have been extended by 54 Geo. III. c. 109, s. 1, whereby, if the means prescribed by the first statute are insufficient, power is given, after certain notices, to increase the assessment to 1s. 9d.—ss. 1, 2, 3. We will notice these provisions in full, and the constructions which have been put on them.

By statute 13 Geo. III. c. 78, s. 30, after reciting "whereas, in some parishes, townships, or places, there may not be sufficient materials for the repair of the highways within the same, nor within the waste lands, common grounds, rivers, or brooks, of any other parish, township, or place, lying within a convenient distance from such highway, by reason whereof the surveyor of such highway may be forced to buy such materials, and to make recompense and satisfaction to the owner or occupier of inclosed lands, for damage which may be done by getting and carrying thereof: and whereas no provision is made for raising a fund to reimburse the expenses thereof, and also such expenses as the said surveyors may incur, by erecting guideposts, or other posts or stones, and by making or repairing such trunks, tunnels, plats, bridges, or arches, as aforesaid, and by rendering satisfaction for damages done to lands by the making of new ditches or drains, nor for the salary to be paid by such parish, township, or place, to such survey or as aforesaid;" it is enacted, "that upon application by such surveyor to the justices of the peace, at their special sessions, and oath made of the sum or sums of money which he hath bona fide laid out and expended, or which

13 Geo. 3, c. 78. Expenses incurred rials, making satis

for buying mate

faction for damages, &c.

on application to justices, at a speraised by an as

cial sessions, may

sessment,

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