ASSESSMENTS. 13 Geo. 3. c. 78. not exceeding Gd. in the pound. If the duty and the money before authorized to be raised shall not be tices may order an sufficient, the jus assessment: but such assessment, with the other, for buying materials, &c. not to exceed 94. in the pound in any one year. 54 Geo. 3, c. 109. Upon application of surveyor of the highways, justices may direct an additional assessment. will be required for the purposes aforesaid, the said justices, or any two or more of them, shall, and they are hereby empowered, by warrant (a) under their hands and seals, to cause an equal assessment to be made, for the purposes aforesaid, upon all occupiers (b) of lands, tenements, woods, tithes (c), and hereditaments, within such parish, township, or place, where such money shall be so expended or laid out; and the same shall be made and collected by such person or persons, and allowed in such manner, as the said justices, by their order at such sessions, shall direct and appoint in that behalf; and the money thereby raised shall be employed and accounted for, according to the direction of the said justices, for the purposes aforesaid; and the said assessment shall be levied in such manner as herein-after mentioned: provided nevertheless, that no such assessment to be made for those or any of those purposes, in any one year, shall exceed the rate of sixpence in the pound, of the yearly value of the lands, tenements, woods, tithes, and hereditaments, so to be assessed." Sect. 45. "If upon application of the surveyor of the highways for any parish, township, or place, to the justices of the peace for the limit wherein such parish, township, or place, lieth, at their general or quarter sessions of the peace, or at some special sessions for the highways, the said justices shall be fully satisfied, by proof upon oath, that the duty hereby directed to be performed, and the money hereby authorized to be collected and received, has been performed, applied, and expended, according to the directions of this act, or shall be fully satisfied that the common highways, bridges, causeways, streets, or pavements, belonging to such parish, township, or place, are so far out of order that they cannot be sufficiently amended and repaired, paved, cleansed, and supported, by the means herein-before prescribed, (notice being first given (d) of such intended application at the church or chapel of such parish, township, or place, on some Sunday preceding such quarter or special sessions; or if the place be extraparochial, notice in writing being first given of such intended application to some of the principal inhabitants residing in such extraparochial place, a week at least before such general or special sessions); that then, and in any of the said cases, an equal assessment upon all and every the occupier of lands, tenements, woods, tithes, and hereditaments, within any such parish, township, or place, shall or may be made and collected by such person and persons, and allowed in such manner as the said justices, by their order (e), at such general or special sessions, shall direct and appoint in that behalf; and the money thereby raised shall be employed and accounted for, according to the orders and directions of the said justices, for and towards the amending, repairing, paving, cleansing, and supporting such highways, causeways, streets, pavements, and bridges, from time to time, as need shall require.' Sect. 46, provides, "That the assessment herein last before authorized, and the assessment herein-before authorized, for buying materials, making satisfaction for damages, erecting guide-posts, and paying the surveyor's salary, shall not together, in any one year, exceed the rate of nine-pence in the pound of the yearly value of the lands, tenements, woods, tithes, and hereditaments so to be assessed.' And by stat. 54 Geo. III. c. 109, s. 1, after reciting "whereas by 13 Geo. III. c. 78, s. 45, the justices of the peace at their general quarter or special sessions for the highways are empowered to allow certain assessments to be made and collected for the maintenance and repair of the highways: and whereas it has been found by experience, that the assessments which are authorized by that act, are not sufficient for the purposes to which the same are therein directed to be applied;" it is enacted, "that if, upon the application of the surveyor of the highways of any parish, township, or place, to the justices of the peace at their general or quarter sessions, or at a special sessions for the highways, the said justices shall be fully satisfied that the common highways, bridges, causeways, streets, or pavements, belonging to such parish, township, or place, are so far out of order that they cannot be suffici ASSESSMENTS. Notice of such ap plication to be given. ently amended and supported by the means in the said herein-before recited act of the 13 Geo. III. prescribed, and by the assessments therein authorized to be made and collected, it shall and may be lawful for the said justices to authorize, order, and direct an additional assessment to be made on such parish, township, or place (over and above all the assessments by the said act authorized to be made and collected); which said additional assessment shall be levied and collected by the same means, and in the same manner and form as is directed for the levying and collecting the assessments made under the authority of the said herein-before recited act, and upon the same persons as are therein declared to be liable to be rated to the said assessments." Sect. 2, provides, "that notice (a) of such intended application shall be first proved before the said justices, upon the oath of the surveyor making such application, to have been given at the church or chapel, on two Sundays preceding such general or quarter sessions, or special sessions for the highways; or, in townships or places where there are no churches or chapels, to have been stuck up in writing in two or more conspicuous places within the said townships or places, for one week at least previous to such general or quarter sessions, or special sessions for the highways; or, in extraparochial places, to have been given in writing to some of the principal inhabitants residing in such extraparochial place, a week at least before such general or quarter sessions, or special sessions for the highways, in order that any person or persons liable to be rated to the assessment intended to be applied for, may attend at such general or quarter sessions, or special sessions, if they shall think fit; there to state to the said justices any objections which he, she, or they may have to the making and collecting of such assessment." Sect. 3, provides, "That the assessment herein authorized shall not exceed Limiting the the rate of 18. 9d. in the pound on the actual value at the time of making amount of assess such additional assessment." ment. Assessment for widening. By stat. 13 Geo. III. c. 78, s. 16, post, 39, an assessment not exceed ing sixpence in the pound, is authorized to be levied for the particular purpose of widening or diverting roads, when the surveyor shall not otherwise have money sufficient to effect such alteration. By stat. 34 Geo. III. c. 74, s. 55, ante, 26, justices are empowered to exempt Poor persons poor persons from the payment of all rates, assessments, or composition what soever. By stat. 13 Geo. III. c. 78, s. 67, "if any person shall refuse or neglect to pay the sum or sums assessed upon him, by any assessment to be made in pursuance of this act, within ten days after demand thereof made, the same shall and may be levied by the surveyor, or any other person or persons authorized by warrant (b) under the hand and seal of one justice of the peace, having jurisdiction therein, by distress and sale of the goods and chattels of the person so refusing or neglecting, rendering the overplus to the owner or owners thereof, the necessary charges of making such distress and sale being first deducted; and in default of such distress, it shall be lawful for any such justice to commit (c) the person so refusing or neglecting to the common gaol, there to remain until he shall have paid the sum so assessed, and the costs and charges occasioned by such neglect or refusal." By the 7 & 8 Geo. IV. c. 17, the provisions of the 57 Geo. III. c. 93, relative to the costs of distresses under 20%. are extended to distresses for highway rates. See ante, Distress, Vol. I. Construction of, and Decisions upon, the Acts]—It was decided in R. v. Stroud, 1 Stra. 315, on the now repealed enactments, that an order for imposing a rate towards the repairs of the highways, was void: 1st. Because it did not appear but that the statute labour was sufficient; and 2ndly, Because only the occupiers of land were charged, whereas others were equally liable. [As to who are occupiers of land, see ante, 20.] exempt. Who are occupiers With respect to who is an occupier of tithes, within the above enactments, it seems now settled (notwithstanding the doubt expressed in R. v. Buck- of tithes. inghamshire, 1 B. & C. 485; 2 D. & R. 689, S. C.), that what is substituted for tithes, is liable to the same burthens. (a) Form (14), post. (b) Form (20), post. (c) Form (84), post. ASSESSMENTS. Materials for repairs. 13 Geo. 3, c. 78. manner to be taken by surveyors. Therefore, in R. v. Lacy, 5 B. & C. 702; 8 D. & R. 457, S. C., it was held, that where a net rent is by an inclosure act given in lieu of tithes, such rent must be assessed in the highway rate; for, in such a case, the net value is not to be understood the value free from rates. And it is a general rule, that corn rents established in lieu of tithes or a modus, unless specially exempt by inclosure act, will be liable to the same burthens as the tithes or modus. Ř. v. Boldero, 6 D & R. 557; 4 B. & C. 467, S. C. R. v. But an exemption from all taxes is an exemption from poor rate. London Gas L. Co., 2 M. & R. 12; 8 B. & Č. 54, S. C. And where an act directing that a yearly sum shall be paid in lieu of tithes, provides for the payment thereof, "free and clear of all rates, taxes, and deductions whatsoever,' or "free from all taxes and deductions whatsoever," (omitting the word "rates"), in such a case the parson will not be rateable, in respect of such yearly sum, either to the relief of the poor, or to the repair of the highways. Chatfield v. Ruston, 3 B. & C. 863; 5 D. & R. 675, S. C.; Mitchell v. Fordham, 6 B. & C. 274; and see R. v. Toms, Dougl. 401. The lessee of tithes, who makes a prospective composition with the farmer, is the occupier; for where the owner of the tithe grants any of the tithes to another, that other is the occupier. Where the right continues to himself, he is the occupier. Chanter v. Glubb, 9 B. & C. 479. (4) Materials for Repairs. To facilitate the repair of roads, powers are given to procure materials: Thus By stat. 13 Geo. III. c. 78, s. 27, "for the better repairing, and keeping Where and in what in repair, the said highways, and providing of materials for that purpose," it is enacted, "that it shall and may be lawful to and for every surveyor, to be appointed as aforesaid, to take and carry away, or cause to be taken and carried away, so much of the rubbish or refuse stones, of any quarry or quarries, lying and being within the parish, township, or place, where he shall be surveyor (except such as shall have been got by the surveyor of any turnpike road), without the license of the owner or owners of such quarries, as they shall judge necessary for the amendment of the said highways, but not to dig or get stone in such quarry, without leave of the owner thereof; and also that it shall and may be lawful for every such surveyor, for the use aforesaid, in any waste land or common ground, river, or brook, within the parish, township, or place, for which he shall be surveyor, or within any other parish, township, or place, wherein gravel, sand, chalk, stone, or other materials, are respectively likely to be found, (in case sufficient cannot be conveniently had within the parish, township, or place, where the same are to be employed, and sufficient shall be left for the use of the roads in such other parish, township, or place), to search for, dig, get, and carry away the same, so that the said surveyor doth not thereby divert or interrupt the course of such river or brook, or prejudice or damage any building, highway, or ford, nor dig or get the same out of any river or brook within the distance of 100 feet above or below any bridge, nor within the like distance of any dam or wear; and likewise to gather stones lying upon any lands or grounds within the parish, township, or place, where such highway shall be, for such service and purpose, and to take and carry away so much of the said materials as by the discretion of the said surveyor shall be thought necessary to be employed in the amendment of the said highways, without making any satisfaction for the said materials; but satisfaction shall be made for all damages done to the lands or grounds of any person or persons, by carrying away the same, in the manner hereinafter directed for getting and carrying materials in inclosed lands or grounds; but no such stones shall be gathered without the consent of the occupier of such lands or grounds, or a license (a) from a justice of peace for that purpose, after having summoned such occupier to come before him, and heard his reasons, if he shall appear and give any, for refusing his consent." Power to gather stones, without making satisfaction; but satisfaction to be made for damages done by carrying them away. (a) Form (21), post. 1 MATERIALS. Sect. 28, provides, "That nothing in this act contained, relative to the gathering or getting of stones shall extend to any quantity of land (being Not to extend to private property) covered with stones thrown up by the sea, commonly called Beach." Sect. 29. "It shall be lawful for every such surveyor, for the use aforesaid, to search for, dig (b), and get sand, gravel, chalk, stone, or other materials, if sufficient cannot conveniently be had within such waste lands, common grounds, rivers, or brooks, in and through any of the several or inclosed lands or grounds of any person or persons whomsoever, within the parish, township, or place, where the same shall be wanted, or by licence (c) from two justices of the peace, at a special sessions, within any other parish, township, or place, adjoining or lying near to the highway for which such materials shall be required, if it shall appear to such justices that sufficient materials cannot be conveniently had in the parish, township, or place, where such highways lie, or in the waste lands, or common grounds, rivers, or brooks, of such adjacent parish, township, or place, and that a sufficient quantity of materials will be left for the use of the parish, township, or place, where the same shall be, (such lands or grounds not being a garden, yard, avenue to a house, lawn, park, paddock, or inclosed plantation), and to take and carry away so much of the said materials, as by the discretion of the said surveyor shall be thought necessary to be employed in the amendment by the sea, called stones thrown up Beach. If sufficient mate- found in waste them from several, In what manner be settled (e). ing the highways. of the said highways; the said surveyor making such satisfaction for the making satisfacdamage to be done to such lands or grounds by the getting and carrying tion to the owners. away the same as shall be agreed upon between him and the owner, occupier, or other person interested in such lands or ground respectively, in the presence, and with the approbation, of two or more substantial inhabitants of such parish, township, or place; and in case they cannot agree, then such satisfaction and recompense shall be settled and ascertained (e) by order of one or more justice or justices of the peace of the limit where such land or ground shall lie; and in such places, where, from the want of other materials, burnt clay may be substituted in the place thereof, it shall and may be lawful for the surveyor to dig clay in such places as he is hereby authorized to dig chalk or gravel, and to dry the same upon the lands adjoining, and to burn the same upon any waste lands or common grounds, and to carry such clay in such manner as other materials are allowed to be carried by this act, upon making such satisfaction for the damages within the several inclosed lands or grounds where such clay shall be placed or carried, as herein directed with regard to other materials: provided, that when the owner of any such inclosed lands shall have occasion for any such materials lying within the same, for the repair of any highway, or other roads or ways upon his estate, or which he shall be under obligation to repair, and shall give notice to such surveyor that he apprehends there will not be sufficient for those purposes, and also for the use of the public highways; then, and in every such case, the surveyor shall not be permitted to dig or take such materials without the consent of such owner, or an order of two justices of the peace, after having summoned and heard the said owner or occupier, or his steward or agent; which justices are hereby authorized to inquire into the nature and circumstances of the case, and to permit or restrain such power, in such manner, and under such directions, as to them shall seem just." Sect. 30. Relates to assessments and rates for the expenses incurred in procuring materials, &c., see the provisions, ante, 29, &c. Sect. 32. Provides, "That no stone, gravel, or materials to be dug for the use of any other parish, township, or place, than that wherein the same are found, shall be removed or carried from the place where they shall be so dug, at any other time than between the first day of April and the first day of November, or in the time of hard frost in the winter season." Sect. 33. "If any person shall dig or cause to be dug materials for the (a) Form (22), post. (b) As to what he may do, sce pest, 35. (c) Form (23), post. (d) See constructions on this act, post, 35. (e) Sce construction, post, 35. Assessments and expenses. Materials for use of another parish at certain times. to be removed only Penalty for da MATERIALS. maging mills, &c., in getting mate rials. Surveyor may con Surveyor having a share in a contract, highways, contrary to the directions of this act, whereby any bridge, mill, building, dam, highway, ford, mines, or tin works, may be damaged or endangered, every offender therein shall forfeit for every such offence any sum not exceeding 57. nor less than 20s. at the discretion of the court or justices before whom complaint thereof shall be made." Sect. 49. "In every parish, township, or place, where a sufficient quantity tract for materials. of stone, gravel, chalk, or other materials cannot be provided and carried by the labourers and teams, required by this act to perform statute duty, within such parish, township, or place, the said surveyor shall, and is hereby required to contract for the getting and carrying thereof (in presence of the said assistant, if any such shall be appointed), at a meeting to be held for that purpose; of which ten days' notice in writing shall be given, by fixing the same upon the door of the church or chapel of such parish, township, or place, or if there be no church or chapel, at the most public place there; which notice shall specify the work to be done, and the time and place for letting thereof; and if any surveyor shall have any part, share, or interest, directly or indirectly, in any such contract, or in any other contract or bargain for work or materials to be made, done, or provided, upon, for, or on account of any of the highways, roads, bridges, or other works whatsoever, under his care or management, or shall, upon his own account, directly or indirectly, let to hire any team, or sell or dispose of any timber, stone, or other materials, to be used or employed in making or repairing such roads, bridges, or other works, as aforesaid, (unless a licence, in writing, for the sale of any such materials, or to let to hire any such team, be first obtained from some justice of the peace within that limit), he shall forfeit, for every such offence, the sum of 107., and be for ever after incapable of being employed as a surveyor with a salary under the authority of this act." or letting to hire any team, or selling of timber, stones, &c., with a out licence from justice, to forfeit 10., and be inca pable of being sur veyor with a salary. If the surveyor shall make pits or materials, he shall cause them to be holes in getting filled up, or fenced off. And in like mander all those pits, Sect. 31. "If any surveyor, or person employed by him, shall, by reason of the searching for, digging, or getting any gravel, sand, stones, chalk, clay, or other materials for repairing any highways, make, or cause to be made, any pit or hole in such lands, rivers, or brooks as aforesaid, wherein such materials shall be found, such surveyor, person, or persons, shall forthwith cause the same to be sufficiently fenced off, and such fence supported and repaired, during such time as the said pit or hole shall continue open; and, within three days after such pit or hole shall be opened or made, where no gravel, stones, or materials, shall be found, cause the same to be forthwith filled up, levelled, and covered with the turf or clod which was dug out of the same; and where any such materials shall be found, within fourteen days after having dug up sufficient materials in such pit or hole, cause the same to be filled up, sloped down, or fenced off, and so continued; and every surveyor shall, within twenty days after he shall be ap&c. already made; pointed to that office, cause all the said pits and holes which shall then be open, and not likely to be further useful, to be filled up or sloped down, in manner aforesaid; and if they are likely to be further useful, he shall secure the same by posts and rails, or other fences, to prevent accidents to persons or cattle; and in case such surveyor, person or persons, shall neglect to fill up, slope down, or fence off, such pit or hole, in manner and within the time aforesaid, he or they shall forfeit the sum of 10s. for every such default; and in case such surveyor, person or persons, shall neglect to fence off such pit or hole, or to slope down the same, as herein-before directed, for the space of six days after he or they shall have received notice for either of those purposes from any justice of the peace, or from the owner or occupier of such several ground, river, or brook, or any person having right of common within such common or waste lands, as aforesaid, and such neglect and notice shall be proved upon oath before one or more of the said justices of the peace, such surveyor, person or persons, shall forfeit and pay any sum not exceeding 101. nor less than 40s., for every such neglect; to be determined and adjudged by such justice or justices, and to be laid out, and applied in the fencing off, filling up, or sloping down, such pit or hole, and toward the repair of the roads in the parish, township, or place, where the offence shall be committed, in such manner as the said justice or justices shall direct and appoint; which forfeiture, in case the same be not forthwith or forfeit 10s. for every neglect; and after notice given. for every neglect |