.'.''..',■•.■•.■ LAND DRAINAGE gfiftaug Lv^yii^ LONDON BROS. & LA Wh UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY /ir^o. isLoUe^L- THE LAW OF LAND DRAINAGE & SEWERS. A TREATISE UPON THE LAW RELATING TO COMMISSIONS OF SEWERS, DRAINAGE BOARDS, AND OT HE B DRAINAGE AUTHORITIES, WITH NOTES; EOEM^ AMI AN APPENDIX OF STATUTES. BY (i. <;. KENNEDY, l: ] CORB1 I! "I' GKAXTHAM, AM' J. S. SAN DAKS, OF THE HIM. AMI I Hill IT, li A BBIS1 11:- V l'-I.A W. LONDON : W A T E R I i W 1 J R ( ) s & I . A Y T OX : 24 4 25, Rieoiun I. ant. E.C. 1884. /?vf LONDON : WATERLOW BROS. & LAYTON, 21, BIKCHIN LANE, E.C. -f TO THE RIGHT HONOURABLE LORD COLERIDGE, LORD CHIEF JUSTICE OF ENGLAND, T HIS BO K IS. BY His lordship's permission, MOST RESPECTFULLY DEDICATED B V THE AU.THORS. PEEFACE It had been the intention of the anthors to postpone the pub- lication of this Treatise until the passing of the Rivers Conservancy Bill, but as during the present Session of Par- liament the Government have taken no steps to forward that measure, it lias been deemed expedienl to offer the book to the profession without further delay. That the subject is well worthy of consideration is warranted by a perusal of the evidence taken before the Select Committee of the House of Lords in the year 1877, which reported upon the formation of Conservancy Boards, and which disclosed a considerable variety of opinion upon the working and the interpretation of the statutes relating to the law of arterial drainage. The authors, in acquiring the copyright of the work by Mr. Serjeant Woolrych, upon the "Law of Sewer.-." con- templated the preparation of a new edition of it, but were led to reject that idea on the ground that the excision of much extraneous and obsolete matter would be involved, and that the method of treatment adopted by that learned writer seemed capable of improvement. They would state that they have taken considerable pains to ascertain the practice prevailing in several drainage areas, but it has been extremely difficult to found upon these inquiries any complete code of procedure in consequence of the cumulative provisions of the various Acts of Parliament. These statutes are printed in extenso in the Appendix, and it is hoped that by thus publishing them, together with a selection of Forms, the practical value of the hook is assured. vi Preface. The authors would further mention thai much assistance has been gained from the opportunities given to them of inspecting original documents in the possession of the Land Commission and the Crown Office of the House of Lords, and from the infor- mation which lias been communicated by the officers of drainage authorities throughout the country. Care lias been taken to preserve as far as possible the archaic character which belongs to the subject, and with this object the learning of Callis and Heme, and the reports of the old decisions, have been largely resorted to. Wherever possible, the system has been adopted of giving double references to the eases cited. c. G. k. .1. s. s. '1. Dr. Johnson's Buildings, Temple. July, 1.884 TABLE OF CONTENTS CHAPTER I General View. CHAPTER II. Commissions of Sewers. PAGE ( >rigin of. ..--'-----31 Mode of appointment. ------- 33 (a) Before the Statute 23 Hen. VIII. c. 5. - 33 (6) Under the Statute 23 Hen. VIII. c. 5. - - 35 (c) Under the Land Drainage Act, 18(31, 24- & 25 Vic. c 133. -36 Qualification of Commissioners of Sewers. 38 Duration of the Commission. - - - 41 Officers of the Commission. ------ 42 Regulations as to meetings of Commissioners and Courts of Sewers. ... 49 CHAPTER III. Powers and Duties of Commissioners of Sewers. Works— (1) Existing. - - - - - - 53 (2) New. - 59 viii Contents. PAGE Generally, Removal of obstructions and cleansing of s< reams, &c. ------- 04 Navigation. - - - - - - 00 The EToreshore. - - (ii) Jurisdictions excepted from their control. - - 70 Borrowing powers; - -71 Purchase of Land.- ^ ,; CHAPTER IV. Survey and Jury Procedure. Survey. ------- •> - - 85 Inquiry and Presentment by Jury. - 87 Travei - se of Presentment. ------ 01 Procedure withoul Jury under the Land Drainage Act, 1861, 24 & 25 Vic. c. 133.- - - 94 Appeal to Quarter Sessions. - .... J)5 CHAPT E R V Rating. Rate bow made. - - - L01 Tax in gross. - - - - - - - -102 The purposes For which the rate is made. - 104 Special rate. --------- 106 The principle of rating. - - - li>7 The property on which the rate is levied.- - 11'* Persons Liable in respeci of such property - - 118 Objections to rate and mode of objecting.- - 1 :2:2 Enforcemenl of rate. - - - - - - 124 Cordents. ix PAGE Distress.- - - -126 Replevy.- ..-..--.- L31 Act inn for illegal distress. ._...- 132 Rateability of property of Commissioners of Sewers. - l-'>"> CHAPTER VI. Liability to Repair Origin. - - - 137 Prescription. --------- 138 Custom.- - - - - 139 Hatione tenurtc. ........ 139 Grant. - - 141 Covenant. ...-- - 142 Frontage. ----- ... 143 TJsus rei and ownership. ------- 14/ Exoneration. --------- 148 Commutation.- -------- 154 Enforcement. - ... - L55 CHAPTER VII. Dkcri es and Pr.NAi.i u s Laws. - - - -157 Ordinances. - ... - - l.>, Decrees.- - - - - - 158 rmprisonment. - - - - L58 Fines. - - ... . 159 A.mercements. - -------- li>-J Enforcement of penall ies. - - - 163 ( 'ontenti ( 'ertiorari. Mandamus. Injunction. Indictment. Actions. - Evidence. Pleadings. CHAPTER VIII. Lega i, Proc EBD [NGS PAGE L66 173 179 183 189 196 198 CHAPTER IX. Elective Drainage Districts. Constitution of District. - Mode of Constituting the District. - Drainage Boards. - Regulations as to. - Rules as to Election of Members of Drainage Boards Rules as to proceedings of Drainage Hoards. 201 202 205 206 208 210 CHAPTER X. Compensation. The Land Drainage Act, 1801, incorporating the Land Clauses Act, 1845. - Interpretation of terms. - Lauds purchased by agreement. Lands purchased otherwise than by agreement. Not ice tut reat. Sen ice of Effect 213 214 215 210 216 217 2 1 8 ( 'null ills. \ j PAGE Assessment of compensation. - .... 219 (a) By justices. - - - • - - - 219 (6) By arbitration. 222 (c) By jury. 227 Lands injuriously affected. ...... 231 Assessment of compensation. ------ 231 Lands taken. -----... 232 Lands injuriously affected. ..... 234 Common lands. ----.... 238 Costs. - - . 239 A PPEXDIC]> APPKXD1X A. (1.) -Tab] i "i Statutes. The subject matter arranged by sections in chronological order.] I 2. ) Stati ii.-. •l:\ Hen. VIII. e. 5. 3 & I Will. IV. c -2-2. I & 5 Vic. c. 45. 8 & 9 Vic. c. 18. 10 & 11 Vic. c. 16. L2 A 13 Vic. c. 50. 24 & 25 Vic. c. 133. APPENDIX B. Forms. Writ of dedimus potestatem granted on application to the Crown Office, House of Lords. Writ for taking declaration of Sewers. Declaration for Commissioners of Sewers. Oath by Commissioners of Sewers — (1.) Of office (23 Hen. VIII. c. 5). (2.) Of qualification (3 & t Will. IV. c. 22). Writ of attendance a1 Sewers. Notice convening a General Court of Sewers. Notice convening a Special Court. Assignment of Surveyor of Sewers Appendices. xiii A ] «| >< . i 1 1 1 liicnt of Bailiff of Sewers. Appointment of Collector of Sewers. Assignmeni of Expenditor of Sewers. Warrant for Collector to account. Bond of a Collector or other officer for tbo due execution of his office. The same of his sureties. Oath of Collector and Defrayer. Oath of Bailiff. Precept to Bailiff. Warrant to the Sheriff to summon a jury. Appointment by the Sheriff of Clerk of Sewers as his depnty. Form of holding Court of Sewers. ( >a ih of jury. Affirmation in lien of oath. Foreman of jury oath. Presentment by jury of annoyances and defects. Presentment by jury of liability by custom to repair. Presentment by jury of liability ratione tenuraz to repair. Notice to be given of liabilities. Traverse of a presentment. Orders of Court of Sewers. Order to repair wall or hank. Order to remove stakes and piles in a river. Order upon presentment of a liability by custom where owner is in default. The same in shorter form. Order to cleanse, scour and repair hanks of a stream. ( >rder to remove weirs on a river. Notice of Court to owner of land to pay costs of repair. &c. Notice of rate. Laws and ordinances of sewers. Bye-law of Court of Sewers. Entries of minutes of Court. Hate and assessment for repairs of sewers. xiv . I/-/" ridices. Order on particular person to pay a tax. Summons to show cause on rion-paymen1 of rate. Warranl to take distress for a tax and sell goods. Same in anol ber form. Decree and sale of lands bj Commissioners for payment of lots and charges. Reply by Enclosure Commissioners to application for leave to mortgage rates. Form of mortgage security under 3 & 4 Will. IV. c. 22, s. 42. Form of transfer of mortgage under 3 & 1 Will. 1 V . c. 22, s. 43. Form of mortgage security for money borrowed for general purposes under 4 & 5 Vic. c. 45, s. 5. Form of transfer of same under 4 & 5 Vie. c. 45, s. 6. Petition under Land Drainage Act, 1861, 24 & 25 Vie. c. 133, to Inclosure Commisioners for Commission of Sewers. Petition under Land Drainage Act, 18G1, 24 & 25 Vic. c. 133, to Inelosure Commissioners for Drainage District. Petition to Inelosure Commissioners for leave to apply the Lands Clauses Act, 1845, APPENDIX ('. 'I'm Somersetshire Drainage Act, 1*77. ( to Vice. XXXVI.) PART III. Existing Liabilities. Seel ions 59 65. APPENDIX 1). Report of House of Lords Committee on Conservancy Boards. List of Commissioners of Sewers and Drainage Boards formed •e 1861. -ification of Rivera shoeing length, area of catchment basin, and tributaries. CASES CITED Abbot of Glastonbury's Case, 189. Aberdare Railway Company, Glyn u.,231. Acton v. Blundell, 236. Adames, R. v., 121. Adams v. London and Blackwall Railway ( lompany, 231. Adamson, Wear Commissioners v., 148. Addison v. Mayor of Preston, 45. Aire and Calder Navigation Co., E. v., L35. Airedale Commissioners, Rhodes •.. 221. 225. Allen, Box v., 179. „ Carter v., 172. .. R. v., 168. Allnm o. Dickenson, 120. Ambergate Railway Company, R. v., 178. Ambler. Coulton v., 56. Amherst. Fox v., 238. Amherst v. Somers, 96. Andrews, Waller v., 112. 1 L9. „ LofEt., 140. „ Chitty, 168. „ March, 1 72. Aii-clm v. Barnard, 134. Apsley, B. v., 92, 172. Archdeacon of Rochester's Case, 41. Armistead v. 1 >urham, 180. Arthur v. Commissioners of Yorkshire. 46, L69. Ash, Tone Conservators v., 194. Askew ''. Eayton, 171. \ i. Saunderson <•.. 43. Attorney-General <•. Ba ingstoke (Mayor ol i. 1 SI. Attorney-Gen. /•. Bradford. 71. v. ( Ihambers, 69. ., v. ( Jolney Batch, 186. v. Dakin, 118, 127. „ v. Donaldson, 117, 127. v. Forbes, 178. ,. v. Johnstone, 160. 181. ,. v. Lonsdale, 147. r. Richards, 160, 181. r. Terry, 185. v. Tomline, 33, 7' Mil. 145, 146. Austye v. Fawkener, 139. Avon Navigation Company. B. v. 135. Back house, R. v., 209. Bailey. - x parte, 218. Bailey v. De Crespigny, 2:12. Bailward, Doddington v., 99. Baker. Harris v., 192. .. R.v.,L.R. 2Q.B.621, 91, 93, 140, 141, 155, L59. .. R. v., 28 L. J. <). B. 377, 17<». .. v. Greenhill, 11'.'. 111. y.Marylebone Vestry,21 I. r. Metropolitan Railway < lompany, 2l!». Ball v. Partridge, L68. Halls r. Metropolitan Board ol Works, 240. Bank- & Arthur, R. /•.. 46. Barber v. Notts and ( rrantham Railway Company, _'H>. Bareham, *'<< r< . 241. Barker, R. v., 17 '.. Cases Cited. Barker, R. v. Norl b Staffordshire Railway * lompany, I Barnard, A aselm v., L34. Barnsley < lanal < lompany v. Twi- bell, L80. Basingstoke, A.ttorney-Gen. p., L81 . Bates, Blacketi v., 218. .. Eedley v., 66, 17'.'. 181. Batterbury, St. Pancras Vestry y., If. I. ' Beard, Wood p., 221. Beavan, Watson v., 99. Becketl v. Midland Railway ( lompany, 23 !. 235. Bedford, I Mike of, r. I >awson, 235. Bedford Level Corporation, R. v., L6, 176. Bedfordshire [nhabitanl s, If. v., ! II. Bedfordshire .1.1.. R. v., 97. Bee y. North Staffordshire Rail- w ay ( lompany, 238. Beighton, Bonnel] v., 96. Bell v. Postlethwaite, 99. Bell, Smith v., 63. Benjamin y. Storr, 183. Berwick (Mayor), Oswald p., 13. Best, Dyer v., 1 1, Betts, R. v., is:;. L84, 185. Bidder y. North Staffordshire Railway Company, 225, 232. Bighin v. Wylie, 92. Bird y. Greai Eastern Railway ( lompany, •-!:'><'>. Bird, Jones y., 191, 198. Birket v. < Irozier, 87. Birley y.( Ihorlton-upon-Medloek, 71,96, 169. Birmingham Overseers v. Shaw. 96. Birmingham, &c, Railway pany, Burkinshaw v., 221 Birmingham, &c, Railw pany, R. y., is:;. Birmingham, &c, Railw pany, Stamps v., "21 1». Biscoe ''. 1 1 real Eastern ( lompany, L89. Blackawton, R. y., 96. Blackburn (Mayor), y. Pi 164. ( lom- . 231. ( lorn- ( lom- lilway Blackburn (Mavor), Gates y.,223. Blacketi v. Bates, 218. Blundell, A-cton v., 236. Bogg v. I 'earse, 45. Bond, R. i'., 97. Bonnell v. B ighton, 96. Bostock v. North Staffordshire Railway ( lompany, 21 5. Bough, Miles y. 212. Bow y. Smith, L10 Bower y. Peate, 193. Box r. Allen, 179. Boyer, Eetley y., 103, 150, L62, L73, 189. Im)\ le, ETenton v., 1 32. Boys, I Mirranl v., 96. Bradford, Attorney- General v., 71. Bradford Canal Company, R, v. 71. is:,. Ferrand v., 235. Bradlangh v. ( llarke, I I. Bradley y. London and North Western Railway ( !o., 22 I. Bradshaw's A rbil ral ion, 224, 226, 229. Bradshaw's Case, 1 :!2. Bramlen v. Metropolitan Hoard of Works, 189. Brand v. I [ammersmith Railway ( lompany, 235. Brandon y. London ( Iha1 bam and Dover Railway Company, 225. y. Brandon, 232. Bray /-.South Eastern Railway ( lompany, "2 II . Breedon y. M urphy, 1 95. Bremidge, Evans, v., 43. Brewster y. ECitchell, L12, 119. Briggs, Rawlins v., 120. Brine y. Great Western Railway ( lompany, 1 89. Bristol v. Wait, 96. Bristol Dock Company, R. v., 174, 175, 177, 178, 179. Bristol, &c, Railway Company; I looper v., 2:10. Bristol, ivc. Railway Company, Finlay, v., 216. Bristol, &c, Railway Company, Crossman v., 50, 56, 81, 82,157, L60, 182, 187, 194. < foses ( Hted. Broadbenl v. Emperial Gas ( !om- pany, 189. Bromley Inhabitants, v. East- marsh, 172. Broughton Local Board, R.r. 167. Brown, R. v„ 230. „ v. Haniond, 129. Brownloww. Metropolitan Board of Works. 71. Bruce v. Willis, 135. Brungy v. Lee, 92, 110, 133. 134. Broster's Case, 160, 171. Buccleugh (Duke'of), v. Metropo- litan Board of Works, 226,235. Bucknell, R. v. Ml. Budd v. Marshall, 121. Bnrkinshaw v. Birmingham Rail- way Company, 220, 231. Burgess v. Eve," I: I. Burridge, Payne v., 119. Burslem Local Board. R, v., 1 7. I Irossman v. Bristol and South Wales Railway ( lompamj . 50, 56, 81, 82, 157, L60, 182, L87, l!-l, Croydon ( ras ( lompany v. I Dick- inson, 43. Crozier, Birkel v., 87. < 'uliiii. New ton v., L15. Gustodes I/ibertat v. Inhabitants of Outwell, 92, 103, 134 D\ki\, Attorney- General v., L18, L27. Dare Valley Railway Company, in re, 226. Dan \ allev Railway Company, v. Rhys, ^23. Darley v. Reg., 45. Darlington Local Hoard, Taylor v., 190. Davies v. North Staffordshire Railway Company, 225. Dawson i7. Paver, 181. ,, Duke of Bedford v., 235. De Crespigny, Bailey v., 232. Denton, i/n re, 99. ,, v. Strung. 226. Derbyshire, J. J., R., v., 97. Derbyshire, J.J., R., v., 96. Devonshire (Earl of) r. Gibbons, I II. Dickinson. Allmn v., 120. ( 'rovdon (las Company v., 43. Dimes v. Petley, I 8 I I Hmock's < 'ase, 60. Dix, Warren v., 94, L33, L34. I )i\on v. Metropolitan Board of Works, L91. I loddingl mi v. Bailward, 99. Dodgson, Jacombe v., 222. Donaldson, Ai fcorney-( renera] v., 117.. L27. Donne. Grocers Company v., L92, 199. Dore v. Gray, 34, 108. Dowling v. Pontypool Railway Company. 216. Drew v. New B i\ er * lompany, L91. Dublin, &c, Railway Company Little v., 235. 1 >udley, in re, Corporation of, 183. Dunbarr's ' !ase, 169, 1 72. Dungey v. Mayor of London, 231. I lunraven I Lord), Malins v., 229. Durham. Armistead r., 1«'>. Durrant v. Boys. 96. Dyer v. Best, 44. Earith, Palmer v., 112, 119. Eastern Counties Railway Com- pany, Faviell v., 224. East London Railway Company, Souch y., 236. Eastmarsh, Bromley (Inhabs.of), v., 172. Eccleshill Local Board, re 234. Edmondson, R. v., 222. Edwards, i parte, 219. ,, v. Edwards, 99, Frank v., 43. Elmii . Richardson, v., 21 5, 21 7. Ely, (Isle of), Case, 32,34, 59, 60, 61, 108, 143, 145, L46. Emerson v. Sail marsh, 1' i3. Esses Commissioners of Sewers, R. v., 105, 1 13, 111, Ids. 153, 176, 177. Essex J. J., R. v., 96. Eton College, ex parti . 214. Evans v. Bremidge, 43. and Lancashire & York Lailway ( lompany v. 214, 223. Eve, Burgess v., 43. L\ asham, re, I Ral epayers of),210. Farm er, Eorne o., 1 18. Farr r. Crispe, L26. Faviell v. Eastern Counties Rail- Avay Company. 22 !. Fawcel t v. Foulis, 96. Fawcett, Whitley v., 109, 117. 133. l:ll. Cases Cited. Fawkener, Austye v., L39. Fellows, Whitehouse r., 1 1 »-!-. Fen Commissioners, K. v., 169. Fenton r. Boyle, 132. Ferrers v. Staffordshire & Uttox. Railway Company, 240. Ferrand v. Bradford Corporation, 235. Ferrar v. City of London Com- missioners of Sewers, 80, 190, 231. Finlay v. Bristol & Exeter Rail- way ( 'ompany, 21t>. Fitzwilliam's Case, 118. Fletcher, Skillet t v., 43. v. Wilkins, 132. Flowei', ex parte, 241. Fobbing (Commissioners of), R., v., 90, 93, 95, 149, 176, 197. Forbes, Attorney- General v. 178. „ v. Lee Conservancy Board, 67, 120, 192. Forman v. Mayor of Canterbury, 192. Forsyth, Palmer v., 171. Fotherby v. Metropolitan Kail- way Company, 228. Foulis, Fawcett v., 96. FowTaker v. Jackson, 229. Fox, in re, 45. Fox v. Amherst, 238. Foxall, Phillips v., 43. Francis v. Cockrell, 193. Frank v. Edwards, 43. Franklin, Guardians of St. Leonard's v., 44, 164. Frewen v. Local Board of Hast- ings, 204. Fulham Union, West London Railway Company v., 99. Gainsborough Union, R. w. 121. Galway v. Great Southern Rail- way Company, 236. Gamble, R. v., 162, 174. Gardner v. Charing Cross, 21.">. R. v., 229. George v. Chambers, 132. Gertham, Witenell v., 194. Gibbs, Mersey Docks v., 1 13, 190. L92. .. Pvbus /•.. -i:;. Gibbons, Marl of Devonshire v., 144. Gibson v. Hammersmith Rail- way Company, 232. Glamorganshire [inhabitants, R. v., 167. Glastonbury (Abl >ot of), Case, 189. Glossop v. Heston Local Board, 174. Glover v. North Staffordshire Railway Company, 235. Glyn v. Aberdare Railway Com- pany, 231. Gooday, Jones v., 195. Goodchild, R. v., 113, 114. Gomm v. London and South Western Railway Co., 239. Gould v. Staffordshire Water- works Company, 240. Goose, R., v., 167. Graham, Mailing Union v., 4'->. Grand Junction Canal Company v. Shugar, 71. Grantham, Sapcots v., 55. Gray, Dore v., 34, 57, 108. Gray, Pullen v., 193. Great Eastern Railway Com- pany, Bird v. 236. Great Eastern Railway Com- pany, Biscoe, v., 189. Great Eastern Railway Com- pany, Harper v., 228. Great Northern Railway Com- pany, Hopkins v., 236. (heat Northern Railway Com- pany, Pearson v., 240. Great Northern Railway Com- pany, R. v. 183, 221. Great Southern Railway Com- pany, Galway v., 236. Great Western Railway Com- pany, Brine v., 189. Great Western Railway Com- pany, Capel v., 240. Great Western Railway Com- pany v. May, 239. Great Western Railway Com- pany v. Swindon. &c, Railway ( lompany, 214. Greenhill, Baker v., 119. 1 11. ( rreenwich Hoard of Work Miiudslay, 33, 55, 82. 6 2 XX ( 'ilSt'S < 'llfil . i rregorj 's ( !ase, 5' '. ( Ii-.ii\ Llle i?. ' lollege of I 'hysicians, 168. ( rrierson v. < Iheshire Lines, 2] 7. Griffiths' Case, 148. ( l-riffiths v. Longdon and Elders- field Drainage Board, L07, 109, L19, 207. 1 1 n icers I Jompany r. I )onne, L92, L99 ( froenvell v. Burwell, 1 59, 160. ( rrosvenor, It. v., L84. Grote v. I Ihester and Holyhead Railway < lompany, L93. ( l-roves, Rose v., 184. Guesl v. Poole and Bournemoutli Railway Company, 215, 216. ( hirst . Sweet man v., 222. II i.ckne"s Level v. Tower Ham- Lei s' < 'ommissioners, 134. I [aigh's Estate, n , 225. I [ailstone, Wbrmwell v., 195. Halifax Union v. Wheelright, I:'.. Mali v. Mason, 65, 93, 157. .. v. Smith, L92. ,. r. Taylor, 45. Hall Dare, II. v., 121. I la mill on,&c, Railway Company, Potter v., 235. I [ammersmith Bridge < lompany /•. Overseers Hammersmith, 108. 1 la mmersmil li Railway I lom- pany, Brand v., 235. Hammersmith Railway Com- pany . ( I ibson v., 232. I lainmoii v. Roll, 162. I Inmond, Brow n /•.. 1 29. Hampston, Stafford /•.. L08. Haiinay. I!. /•.. 22<». I [anson, R. v., 96. I [arding y. Metropolitan Railway < lompany, 21 5. I [arding, Mayor v., 17. I [arper, ex parte, 224. /•. ( rreal Eastern Rail- way < lompany, 224. Harris v. Baker, L92. I [arrison r. Timmins, 195. v. Si i«l< 1 1. \ . In.',. I Imii mil /■. Ryde ( 'ommissioners, L91. Hastings Local Board '■• Prewen, 204. Hawkins v. Newiiiiui. 4k I law lev '•. North Staffordshire Railway Company, 224. I la \ lies r. I la vims, 215. I [ayton, .Yskew v., 271. Hay ward r. .Metropolitan Rail- way Company, 227. 22*. 240. Head,!!, y.,109. Healev. v. Thames Valley Kail- wax ( 'uiiijianv, 232. Hedley v. Bates, 66, 179. 181. Henly v. Mayor of Lyme. :!:!. 1:59. 142, 143, 145, 185, 198. Heme Bay Commissioners, Webb v., 73. Hertford (Mayor of) R. v., 181. Heston Local Board, (llossop, 1 74. Hetley v. Hover. 103. 159. 162. 173, 189. Hide, R. v., 57, 172, 188. I [iggins, m re, 239. Higgs, St. Katharines Dock Company v., 102, 108. Hobart, Earl of Ripon v., 181. Hobbs v. Midland Railway Com- pany, 2:!'.'. Holdsworth v. Wilson, 240. Holland, Yeaw v., 57. Holland v. Lea, 43. Holm. Ma \ < ir of Ren it n r.. (59. Holnirs Common, Mayor of Lin- coln v., 1 15. Hooper v. Bristol Railway Com- pany, 230. Hopkins r. ( i real \ort lirrn Rail- way ( 'ompany, 236. I Ionic v, Parmer, 118. Horrocks V. Metropolitan Rail- way ( 'ompany. 230. Howell v. Metropolitan Railway Company, 21 7. Huddersfield Corporation v. Jacomb, 216. Hudson v. Tabor, 32, 33, 34, 108. L43, 144. 146. 1 17. 148, L98. Hull (Level of) Case, L05. I I nil and Selby Railway Com- pany, R. r.. 171. ( 'ases ( 'ited. Hull Docks Co.. Rogers ''.."217. Tubb v., 232. Hungerford Market Company, R. •»., 219. Hurrell v. Wink, 1:52. Ilutehins v. Chambers, 96. Isi.i: of Ely Case, 32, 34, 59, 6<>. 61, 108.143,145, 146. Isle of Wi^ht Railway Company, Liiid v., 223. Imperial Gas Company, Broad- bent v., 189. Jackson v. Fowraker, 229. Jacomb, Huddersfield Corpora- tion, v., 216. .Jacomb i\ Dodgson, 222. Jones v. Bird, 191, 198. Jones v. Gooday, 195. Johnson, Syson, v., 1-17. Johnson, New River Co.. v., 236. Johnstone, Att.-Gen. v., 160, 181. Keighley's Case, 101, 108, I II. 148, 153. Kelk, R. v., 175. Kemp v. South Eastern Railway Company, 219. Kendall v. King, 45, 194. Peter v., 116. Kerrison v. Sparrow, 66, 68, 86, 180. Kerrison, R. v., 178. King's Estate, re, 221. King & Heart, Commissioners of Lincoln v., 172. King, Kendall v., 45, 194. Kitchell, Brewster v., 112, 119. Knapp v. London, Chatham and Dover Railway Company. 220. Knight, Poplar Board v., 32. Knock v. Metropolitan Railway Company. 235. Lancashire and Yorkshire Hail- way Company v. Evans. 214, 215. Lancashire and Yorkshire Rail- way Company, R. v., 228. Lancaster Canal Company, Thick- nesse v., 218. Lancing, New Shoreham Com- missioners v., 135. I iapworl h. Thompson v., 1 1'.'. Lashbrooke's Case. 126. Leader v. Mason. 96. Leconfield v. Lonsdale. 64. Lee v. Vessej . L26. „ Brungy v., 92, 110, 133, 134. .. Holland v., 43. .. Ward v., 193. Lee Conservancy Board. Forbes v., 67. 190, 192. Leggo v. Young, 99. Leicester Waterworks Company, Martin v., 240. Leigh, R. v., 148, 153, 197. Lewis, R. v., 169. Lichfield (Mayor of) v. Simpson. 48. Lincoln (Mayor of) v. Holmes Common, 115. Lincolnshire, R. v., 97. Lincolnshire Commissioners of Sewers, R. v., 172. Lincolnshire Commissioners of Sewers, R. and Day v., 169. Lincolnshire Commissioners of Sewei's, R. and Heart v., 172. Lind v. Isle of Wight Railway Company, 223. Lindsey JJ., R. v., 167. Lindsey (Inhabitants of), R. v., 178. Little v. Dublin, &c. Railway Company, 235. Liverpool (Mayor of). Steele v., 218. Llaneilian Overseers, Mersey Docks v., 135. Loft, Taylor v., 42, 88, 90, 150. London and Blackwall Railway Co., Adams v., 231. Corrigall v., 229. Pinchin v., 214. Walker v., 229. London and Brighton Railway Company, Stoneham v., 238. London, Chatham and Dover Railway Company: Brandon r 225 v., aatj. „ Knapp v., 220. .Martin v., 217. London (Mayor of),] )ungeyu.,231. XX 11 Gases Cited. London I Mayor of), K. v., 231. ,, Tyson v., 221. London and N"ori li Western Rail- way ( !ompany : Bradley v., 224. „ ( >wen v., 241. R. v., 230. London and St. [Catherine's Docks, Nitro-phosphate Com- pany /•., 1 7t>. London and South Western Rail- way ( 'ompany v. Gomm, 239. Longdon and Eldersfield Drain- age Board, Griffiths v., 1 07, 109, 11'.). Lonsdale, A.tt.-Gen. v., 147. ,, Leconfield v., 6 I. Lower Milton, R. v., L35. Lowestoft Railway Co., in re, 239. Lyme (Mayor of), Eenly v., 33, 139, L42, 143, 145,185,198. Lynn ( .Mayor <>)') r. Turner, 140. Lynn, &c, Railway Company Tawney v., 216. Maitla.M), Tucker, v., 134. Malins y. Lord Dunraven, 229. Mailing Union /•. Graham, 43. Manchester, R. v., 97, 183. Manchester Corporation, Scott v. 192. Manchester, &c, Railway Com- pa ay and Leeds Railway ( 'om- pany, 1!. v., 171,220,221,230. Marshall, Budd,v., 120. „ r. Pitman, 96. Marl in v. Leicester Waterworks ( 'ompany, 240. ,, /'. London, ( Mini ham and Dover Railway Company, 217. Mnrvlebone Vestry, Baker v., 214. Mason, Hall v., 65, 93, 157. Leader c, 06. „ v. Stokes Bay, &c, Rail- way Company, 215, 217. Massam, Commins v., 49, 87. 92, 141, 142, 148. Master v. Scroggs, 108. 134. Masters, R. v., 17. ' ; bl '• "!. 93, 1 17. Maudslay, Greenwich Board of Works, v., 33, 55, 82. May, Great Western Railway Company v., 239. Mayer r. Harding, 47. Mayo County, in re, 166. McCarthy, Metropolitan Hoard of Works v., 234, 235. Medley 17. l'ril chard, 99. Mellish, ex parte, 44. Mersey Docks v. Gibbs, 113, 190, 192. „ v. Overseers Llan- eilian, 135. Mersey Navigation Company, R. v., 135. Met. Board of Works : Balls v., 240. „ Bramlen v., 189. „ Brownlow v., 71. „ Cooper v. 232. Dixon v., 191. ,, Duke of Bucclcugh v., 226, 235. v. McCarthy. 234, 235. „ v. Metropolitan Rail- way Company. 182. ,, v. Overseers of West- ham, 135 R. v., 135, 235. Tel lord 17., 204. r. ViLiixlia.il R rid ye, 108. Met. Rail. Co., Baker v., 219. Fotherby v., 228. Earding v., 215. ., Hayward v., 227. 22S, 240. „ Horrocks v., 230. Howell v., 217. Knock v., 235. Met. Board of Works v., 182. Morgan v., 219, 22s. Newbold v., 224. „ Rawlins, v., 217. R. v., 225, 230. ., Rickets v., 184, 232. 234, 236. Senior v., 236. ,, Somers v., 220. '•. Turnham, 2 I". ( loses ( 'ited. x x 1 1 1 Met. Rail. Co. v. Woodhouse, 219. Middle Level Commissioners, Collins v., L94. Middlesex, J. J., R. v., 98, 99. Midland By. Co., Beckett v., 234, Hobbs v., 239. R. v., 235. Miles r. Bough, 212. M it ton, B. v., 135. Milward ». Caffin, 132, 134. Monmouth Railway Company, Chapman /•., '230. Montague, R. v., 68. Morgan v. Metropolitan Railway Company, 219, 228. Morland v. Conk. 143, 144. Morley, m re, 205. Morpeth. Chabotv. 229,230. Morris, ex parte, 241. Mortimer v. Southwestern Bail- way Company, 230. Murphy, Breedon v., 195. N.vdin, ex parte, 233. Nash v. Coombs, 238. Neave v. Weather, 110. 1 33. „ v. Wrather, 110, 133. Nelson, Stracey v , 82, 194. Nene Outfall Commissioners, R. v., 177, 233. Netherton v. Ward, 108, 117, 127. New Biver Co. v. Johnson, 236. ,, Drew v., New Shoreham Commissioners v. Lancing, 135. Newbold v. Met. Bailway Com- pany, 224. Newhurg, Commissioners of Sewers v., 110, Newcastle (Duke of), v. Clark. 34, 49, 50, 55, 81, 82, 134. Newman, Hawkins v.. 44. Newport Bridge, re, 191. Newton v. Cubitt, 115. Newton (ViU. of), v. Tyd, 60. Nicholson, B. v., 135. Williams ,-.. 1 In. Nitro- phosphate Company v. London and St. (Catherine's Dock Company, 1 IS. Norfolk ( lommissioners of Sewers, If. v., 45, L05, 177. Norfolk .1.1.. I!. »., 47. Nornabell, Ramsey v., 91, L32 159, 162,163, 199. Norwich (Mayor of), R. v. I I. North London Railway Com- pany, Richmond v., 219. North" Riding J.J., R. ,., !>7. N. Staff. Rail. Co., Bee v., 238. Bidder v., 225, 232. „ Bostock?7.,215. „ Da vies v., 225. ,, I Hover v., 235. Hawley r.,22 I. ,, Sandbach Charity v., 241. ,, Skerratt v., 226. Nottingham and Grantham Bail- way Company, Barber v., 219. Nottingham Waterworks Com- pany, B. v., 235. Norwich (Mayor of), B. v., 44. „ Trustees, B. v., 230. „ ,, Sutton v., 32. Oastlek, B. v., 166. Oldberry Inhabitants v. Stafford, 64, 147, 159, 172. O'Shaughnessy, Bocock v., 49, 134. Ohrby v. Byde Commissioners, 191. Ostler v. Cooke, 40. 76, 228, 230. Oswald v. Mayor of Berwick, 43. Outwell (Inhabitants of), Cus- todes, &c, v., 92, 103, 134. Ouse Bank Commissioners, R. v., 177, 178. Owen v. London and North- Western Bail way Co., 241 Owens, B. v., 209. Owst, ex i>n rte, SS, 1 (">1 . Oxfordshire JJ., B. v., 97. Pagh \m ( lommissioners of Sewers, R. v., 60, 146,117. 177. is:;. Palmer v. Harith. 112. 119. r. Forsyth, 171. ( 'ases ( Hted. Palmer v. M < i ropolitan Railway ( Jompany, 226. Parkinson, Mayor of Blackburn v., L64. Pan Navigal Lou < )o.v. Robins, 1 17. Parsons v. St.Matthew, Bethnal- gre« ii. I'M. Partridge, Ball v., 168. Paver, I lawson v., 1.81. Payne v. Burridge, 119. I'.-ar-e. I>oi;'<_ r '.. I"'- Pearson v. Greal Northern Rail- way Co., 240. v. Roberts, L32. Pease, R. v., 185. Prate, linwiT /■.. 1 '.•:!. Penny v. Penny, 232. Penrj n I .M;i\ or of), v. I Eolm, 69. Perkins, R. v., 230. Peter v. Kendall, I L6. Petley, I >imes v., L84. Phillips v. Foxall,43. Physicians' ( !ollege, R. v., 168. Pigott and the Greai Western Railway Co., re, 216, 217,234. Pinchin v. London and Black- wall Railway < lompany, 214. Pitman, Marshall v., 96. Pocock v. ( ►'Shauhnes sy, 19, 134. Pollard, ( !lements v., 194. Pontypool Railway Company. Dowling v., 215, 216. Poolo and Bonrnemouth Rail- way Co., Guest v., 215, 216. Poor Law Board, R. -..44. Poplar Board v. Enight, 32. Porter's ( !ase, 141. Postlethwaite, Bell v., 99. Potter v. Hamilton, &c, Railway Company, 235. Preston I .M ayor of). Addison v., 45. Price, W>a\ er v., 96. Pritchard, :\Irdlry v., 99. „ v. Stephens, 132. Protector, The. v. Bruster, 160. 171. Pnblio Works Commissioners, White v., 232. Pull en, Gray v., 193. Pybns r. Gihbs. \'A. Railstojte v. York. &c., Railwaj Company, 227, 228. Ramsden, It. v., 111. Ramsey v. lSrornabell,91,132,159, 162,163, L99. Haw, Cross v., L20. Rawlings v. Metropolitan Rail- w ay ( . Reg. v. Adam-. L21. „ v. Aire cV Calder Naviga- tion Company, BJ5. .. r. Allen, 168. .. v. Ambergate Railway Com- pany, 1 78. .. v. Apsley. 92. 172. ., r. Avon Company. 1 :!•">. .. v. Backhouse, 209. .. v. Baker, L. R. 2 Q. B. 621, 91,93,116,140, 141,155, L59. .. v. Baker. 28 L. J. Q. B. 377, 170. .. Banks & Arthur, 46. .. v. Barker, 174. .. v. Bedfordshire Inhabitants, I II. .. v. Bedfordshire. .1. J., '■', . v. Bedford Level Corpora- i ion, 46. .. v. Betts, L83, Is I. L85. v. Birmingham & Gloucester Railway Company. 1 83. .. v. Blackawton, 96. .. r. Bond, 97. .. v. Bradford Canal Company, 71, 185. „ v. Bristol Dock Com pan v. 174, 175, 177, 178. 179.* ., v. Broughton Local Hoard. 167. .. v. Brown. 230. ,, v. Bucknell, 141. ,, r. Bnrslem Local Board, 1 76, 179, 190. ,. v. Cadogan, (Earl of), 185, 198. ., v. Cambrian Railway Com- pany, 116, 226, 236. ,, v. Capel, 111, /■. Cardineton. I ;;; > < 'uses ( ''/- '/. \ x \ Reg. v. ( 'helmer Navigal ion ( !om- pany, L35. v. Christchurch Overseers, 110. /-. Cockerinouth Inclosurc, 1 75. .. 17. Combe, 221. ,, and Day v. Commissioners of Sewers, 169. .. and Heart v. do. 172. „ v. Derbyshire, J.J., 6 A. & E., 885, 97. .. v. 7 Q. B. 19:3, 96. „ v. Edmondson, 222. „ v. Essex Commissioners of Sewers. L05, 143, 144, 148, 153, 176, 177. ,, v. Essex, J. J., 96. „ v. Fens Commissioners, 169. „ v. Fobbing (Commissioners of). 90, 93, 95, 149, 176, 197. .. v. Gamble, L62, 171, r. Cainsljorougli Union, 121. r. Gardner, 229. v. Glamorganshire (Inhabi- tants of), 167. .. v. Goodchild, 113, 114. „ v. Gosse, 167. „ v. Great Northern Railway Company, 183, 221. .. v. Grosvenor, 184. „ r. Hall Dare, 121. .. v. Eannay, 222. „ v. Hanson, 96. „ v. Head, 109. „ v. Hertford (Mayor of), 181. .. o. Hide, 57, 172, 188. .. v. Hull & Selby Railway Company, 174. ., v. Hungerford Market Com- pany, 219. „ v. Kelk, 175. .. v. Kerrison, 178. .. v. Lancaster Railway Com- pany, 228. .. v. Leigh, 148, 153, 154, 197. ,. v. Lewis, 169. .. v. Lincolnshire, 97. ,. v. Lincolnshire Commis- sioners of Sewers, 172. v. Lindse^ 1 nhabitanl s. 1 78. v. I.i adsey, .1 ..).. 1 67. v. London i Mayor of) 231 v. London & Noil h Wesi i rn I .'ail was CO., 230. v. Lower \l il ton, L35. v. Manchester. '.'7. I r. Manchester, &c, Railway Company, 220, 221 . v. Manchester and Leeds Railway Co., 171. 230. r. .Masters, 47. v. Mathias, 91, 93, 147. v. Mersey Navigai ion ( !o., 135. v. Metropoliian Board of Works, 135, 235, 236. v. Metropolitan Railway Company. 225, 230. v. Middlesex, J.J., 98, 99. v. Midland Railway Com- pany. 235. v. Mitton, 135. v. Montague, 68. r. Nene Outfall Commis- sioners, 177, 233. (-. Nicholson, 135. r. Norfolk Commissioners of Sewers, 45, 105, 177. v. Norfolk, J.J.. 17. v. North Riding. J.J., 97. v. Norwich (Mayor of), M. v. Norwich and Walton Trustees. 230. v. Nottingham Waterworks Company, 235. v. Oastler, 166. y. Ouse Bank Commis- sioners, 177, 178. r. ( (wens, 209. v. Oxfordshire, J.J.. 97. /-. Pagham I !ommissioners of Sewers, 60, 146, 147. 177, 183. v. Port of Southampton Commissioners. 17 1. 178. r. I'ease. 185. v. Perkins, 230. r. I'oor Law Hoard, 1 I. i7. Ramsden, 111 . v. Rochdale < lommissioners, 220. XXVI ( 'ases ( 'ih'il. Res. Russell, L85. Rynd, 235. St. Luke's, ( 'holsoa, 80, 231,235. St. Pancras, 209. Salter's Lode, L10, L35. Scott, L83. Sculcoates, L35. Sealej . I 75. Sei era and Wye Railway ( lompany, 1 7 I. 1-78. Sheffield (Mayor of), 17". 171. Sherford, 113. Sheward, 224, 230. Skingle, 11 1. Smith, 240. Somerset Commissioners of Sewers, 42, 48, 60, 87, 88, 89, 92, 161, 177. South Devon Railway Company, 226. South Holland 1 >raiuage, 76,171. Southampton Commis- sioners, 174, 178. Southampton Railway Company, 233. Stafford, 174. Staffordshire, J.J.. 96. Stoke Damerel, 171. Stone, 220, 222, 227. Suffolk, J.,1., 96. Sutton, 141. Sutton Harbour Com- missioners, 226. Swansea Harbour Trus- ter,-. 2oi». Thomas, 135. Tindall. 1«:,. , Tower Hamlets Com- missioners, 91,102, L05, ins. 121. 134, 17". L78, li»s. Vachel, 57. Vange, 121. 1 12. . Vanghan, 222. . W. Riding, 96. .Ward, is |, is:,. 21 9. . Warton, 34, 85, 89. 90, L50, L51. . Watson, 1 11. Reg.v. West ham. (inhabitants of), 66,68. „ v. White, 209. „ v. Whitaker, 104. .. v. Wigg, 164. .. r. W i Iks, 170. .. v. Wiltshire, J.J., 97. „ /-.Wood. 167. .. v. Wright, 134, 172. „ Scarborough, 7". Yorkshire Commissioners of Sewers, 169. ,, Yorkshire, J. J.,. 1 75 R gent's Canal Company v. Ware Company, 217. Rhys, Dare Valley Co. v., 22:;. Richards, ex parte, 45. Att.-Gen. v., 160, 181. ,, Chasemore v., 236. Richardson v. Elmit, 215, 217. „ South Eastern Hail- way Company v., 227. 240. Richmond v. North London Rail- way Company, 219. Ricket v. Metropolitan Railway Company, 184, 232, 234, 236. ' Ripon (Earl of), v. Hobart, 181. Rhodes v. Airedale Commis- sioners, 224, 225. Rhys, Dare Valley Railway Company, v., 22:',. Roberts, Pearson /•.. 132. Robins, ex jtm-tr, 174. „ Parretl Navi^al ion ( !om- pany v., 147. Rochdale (Commissioners of), R. v., 220. Rochester (Archdeacon of), Case, 41. Roderick, Sibliald r., 96. Rogers v. Hull Docks Railway Company, 217. Roll, Hannnon v., L62. Rook's Case, 108, 131, 111. 148. Rose r. ( J roves, 184. Ruck v. Williams. P.M. 1'.".'. Russell, R, v., L85. Ryde Commissioners, Eartnellu., 191. Ohrby, 0.191. J\ vinl. R. r., 2:',-\ Cases Ci hu\ t>S, S(i, 180. Stafford v. Hampston, l (| s. 133. „ [nhabitants of Oldberrj v., 6L 1 17. 159, 172. R. v., 171, „ I i boxeter Railway Co. Ferrers v. 2 10. Waterworks Company, Gould., 240. Staffordshire J.J., !(.. v.. 96. Stamps v. Birmingham, &c.j Rail- way ( lompany, 216. < 'oxes Cited. Stephens, Pritchard v., 1 32. Steele v. Mayor of Liverpool, 218. Stevenson, ex parte, 69. Si Lckney, I [arrison v., L05. Stoke Damerell, R. v., 171. L76. Stokes Bay, &c, Railway ( !om- pany, Mason v., 215, 217. Stum- /•. ( 'umiiii'i'ciiil Raihvay Compam . 216, 227. Yorkshire (('ommissioners of), Arthur, -It'., 169. Yorkshire, -I. -T. It. v. 1 75. York, &c, Railway Company, Railstone v., 227. 22s. Young, Leggo /•.. 99. INDEX OF STATUTES. Hen. III. (Magna Carta), c. 15 33, 34, 60. c.23 L85. 1'-' Edw. IV. c. 7 ... 49. 3 & 1 Edw. VI. c.8... 2,38, U, 117,127. s. -J 117. 6 Hen. VI. c. 5 2, 33, 34, 59, 108, 145. f 2, 4, 6, 33, 34, 35, 36, 40, 41, 42, 19, 50, 53, 54, b Hen. VI 11. c. 5 55, 59, 81, 87, (Bill of Sewers) ...< 93, 107, 108, (See Statute i)i Appendix A.) 109, 111, 112, 115, 116, 117, L25, 128, 131, 140, 182. | '85, 86, 87, 88, s. 3 104, 124, 155, 1 156, 158, 159. s. 5 39, 40. s. 7 157. s. 8 127, 128. s. 9 117, 127. B. 10 38, 40. s. 11 133. s. 12 133. s. 13 44. s. 16 41. s. 17 42, 177. 25 Hen. VIII. r. 10 .. 38. s. 1 40. s. 2 40. 13 Eliz. c. 9 ... 2, 11. 160, 177. s. 4 38. s. 7 38. 27 Eliz. c. 22 60. 3 James I. c. 18 ... 60. 12 Car. II. c. 11 ... L68. U$ Car. II. c. 17 (Bed- ford Level) s. :, 171. •J Will. & Maw. c. 8 s. 14 ' 7 .\ nni', c. 1" (See Statute vn 4pj s. 1 s. 2 s. 3 13 Geo. II. c. 18 s. 5 13 Geo. III. c. 78 s. 47 7 Geo. IV. c. 64 ... s. 11 3 & 4 Will. IV. c. 22 (Commissions of Sewers) (See Statute in Appendix s. 1 s. 2 s. 3 s. 4 s. 6 s. 7 s. 8 s. '•» s. 10 s. 11 s. 12 s. 13 s. 14 s. 15 s. L6 s. 17 s.18 s. 19 s.20 s. 21 s. 22 s. 23 t. -I 60. 35, 115, 125. A.) L27. 127. 124, 125. 170. 132. 187. 187. 3, 35. 41, 49, 55, 63, 71, 76, 93, 107, 151. A.) 38. to. 40. 39, 164, 188. 41. !•_'. 158. 50,51. 52. 56, 57, 66. 86, 87, 88, 89. 91. 90, 151, 152, 176. 1 1 12. t8, 93, 155, 156, 159. I-.. 89, 103, 104, 105. 90: 120. 61. 71. 61. 17. 67. 67. 61, 70. 21 I. 215, X X X I 1 Index <>l Statutes. s. 25 76,214. (See Stat vte in Appendi i A.) s. 26 76,214. s. 1 74,105,129. s. 27 77, 89, 160, 161, s. 2 123,129,131. 163, 214. s. 3 123,129,131. s. 28 77,197,211, s. 4 73,74. s. 29 77,211, s. 5 74. s.30 77,81,214. s. 6 74. s.31 77,214. s. 7 45,91,105. s.32 77,211, s. 8 123. s. 33 77,214. s. 9 123,197. s. 34 77,214. s. 11 50. s. 35 77,214. s. 12 51,52. s.36 77,214. s. 15 71. s. 37 66,214. s. 16 71. s. 38 77,81,214. s. 17 71. s. 39 98,214. s. 18 71. s. 40 214. 5&6 A ic, c.97 ... 195. s. 41 72. s. 2 133. s, 42 73. 6 Vic. c .20 170. s. 43 73. s. 44 50. s. 46 , 89,151. s.47 56, 81, 82, 182, 7 & 8 Vic. c. 106 (Fen 7 1Q2 Drainage) 5 „. 1Q , T , (26. 79. 80, 213- 8 Vic. c. 18 (Lands \ kl4'215, 218, 187, 194. s. 48 47. Clauses) ... ... ^ 2 22^ 224. s. 49 46. s. 3 220. s. 50 43. s. 9 239. s. 52 125. s. 10 154,237. s. 53 155,160,163. s. 16 80. s. 55 ... 47.125,130,156, s. 17 80. 158. s. 18 . ... 215,216.218,232 s. 57 ... 97,168,186.194. s. 19 218. s. 58 186,194. s. 20 218. s. 59 ... 186,194,197. s. 22 219. s. 60 155. s. 23 . ... 218,222,226,227 s. 61 71. s. 24 240. s.62 71. s. 25 223,224. 5 & 6 Will. IV. c. 33 s. 26 ... 223,224. (certiorari) 166, 170. s. 27 ... 223, 224. s. 1 170. s. 28 223, 224. s. 2 17<>. s. 29 ... 223,224. 5 & 6 Will. IV. c. 50 .,. 30 223,22!, (Highways) s.99 184. s.31 .. 224,226. s.32 ... 224,225. 6&7 Will. IV. c. 71. s. 33 ... 224,225,226. s. 69 HI, s. 35 224,226. 6 & 7 Will. IV. c. 96 s.36 224. (Parochial Assess- ment) s. 38 227,240. s. 39 ... 227,22s. s. 1 121. s. 40 227. 4&5Vic.c.45(Sewers") 3, 35,71,103,107, Acts Amendment) j L08, 12:'.. 177. v. 11 . . 227, 22*. s 42 227. 228. Iin/rr n f Shdnfrs. XXXI 11 s. 43 S. 41 s. 45 a. 46 s. 47 s. 48 s. 49 s. 50 s. 51 s. 52 s.53 s. 54 s. 55 s. 56 s. 57 s. 58 s. 59 s. (ill s. 61 s. 62 s. 63 s. 64 s. 65 s. 66 s. 67 s. 68 s. 69 s. 70 s. 71 s. 72 s. 73 s. 74 s. 75 s. 76 s. 77 s. 78 s. 79 s. 80 s. 81 s. 84 s. 85 s. 86 s. 87 s. 88 s. 89 s. 90 s. 91 s. 92 s. 95 s. 96 227. 227, 229. 227, 229. 227, 229, 240. ±11, 229. 227, 229. 227, 229. 227. 227, 240. 227, 241. ■1-1, 241. 227, 230. 227. 227. 227. 218, 229, 239. 218, 229. 218. 218. 218, 240. 218. 218. 218. 218. 218 80, 190, 220, 221, 222, 223, 227, 231, 232, 240. 237. 237. 237. 237. 237. 237. 237. 228, 237, 239. 228, -I'M, 239. 237. 237. 237, 241. 83. 81. 81, 240. 81. 81. 81. 81. 81. 81, 242. 215. 237. 237. s. 97 ... s. 98 . s. 99 ... s. K»l .. s. 102 s. 103 . s. 104 ... s. 105 . s. 106 .. s. 108 .. s. 109 .. s. 110 . s. Ill .. s. 112 .. s. 113 ... s. 114 . s. 115 .. s. 116 ... s. 117 ... s. 118 ... s. 119 .. s. 120 s. 121 s. 122 s. 123 s. 124 .. s. 126 s. 127 ... . s. 131 .. s. 136 s. 137 .. s. 138 s. 139 s. 140 s. 141 s. 142 s. 143 s. 144 s. 145 s. 146 s. 147 s. 148 ... s. 149 10 Vic. c 16 (Commis- sioners Clauses) ... (See Slut" i, ■ in .1, s.24 ss.56 -59 .. ss. 60—64 ss. 65—74 ss. 75—88 ... . 237. . 236 . 238. 238. . 238. . 238. . 238. . 239, 240. . 237. . 237. . 237. . 2:! 7. . 237. . 2:57. . 237. . 237. . 237. . 237. . 237. . 237. . 237. 220, 233, 237. . 237. . 81,237. 242. 242. 239. 239. 164. 164. L64, 241. 242. 164. 164. L64. 164. 164. 164. Id I. L64. 164. 164. 164. 5, 7'.. 207, 203. .l.i 207. L'l 18. •JOS. 208. 75. XXXI V Index t ss. 89—95 208. ss. 99—103 ... 198, 208. 11 & 12 Vic. c. 43 (Jei'vis' Act) 47, 163. s. 4 187. ss. LI, 19, 21 163, 222. s. 27 97. 11 & 12 Vic. c. 63... 209. c. 112... 113. s. 145 41. c. 142... 128. c. 143... 231. 12 & 13 Vic. c. 45. s. 6 97. s. 11 98. s. 18 97. 12 & 13 Vic. c. 50 (Sewers Acts Amend- ment) 3,35, 124, 128. (See Statute in Appendix A.) s. 1 102. s. 2 102. s. :: 48. s. 4 48. B. 5 ^8, 160. s. 6 49, 160. f49, 124, 125, 126, s. 7 128,129,130.133, (.155, 156,163. s. 8 126. s. 9 49, 125. s. 10 124. 13&14 Vic. c. 21. s. 4 96. 1G & 17 Vic. c. 30 (certiorari.) 166. s. 4 183. 17 & 18 Vic. c. 125 (C. L. P. Act, 1854.) 98, 225. s. 5 98. s. 7 98. s. 9 99. s. 15 224, 226. 18 & 19 Vic. c. 120 ... 113, 231. s. 68 71. s. 135 192. s. 164 113. s. 204 32. 19 & 20 Vic. c. 108 s. 65 132. s. 66 132. 21 & 22 Vic. c, 98 203. c. 104 71. 23 & 24 Vic c. 106 (Lands Clauses Amendment) . . . 80. s. 1 ... 237. 24 & 25 Vic. c. 97 (Criminal Law) s.31 ... 188. r 3, 6, 7, 8, 22, 23, 24 & 25 Vic. c. 133 35, 53, 54, 58, (Land DrainageAct, 72, 86, 94, 95, 1861) -1 153, 163, 197, 213, 214, 215, (See Statute in Appendix A.) 218, 222, 224. s. 2 .. 37. s. 3 ... 57, 62, 207. s.4 ... 36. ss. 6-10... 37, 58, 63. s. 12 ... 106. s. 13 ... 197. s. 14 ... 36, 41. s. 15 ... 51. s. 16 ... 4, 5, 58, 61, 75, 78, 222. ss. 17-20 66, 222. s. 18 ... 222. s. 20 ... 67. s. 21 ... 62, 78. s. 22 ... 78. s. 23 ... 79. s. 24 ... 79. s. 25 ... 79. s. 26 ... 80. s. 27 ... 80, 106. s. 28 ... 80, 213, 214. s. 29 ... 58, 63, 75. s. 30 ... 58. s. 31 ... 59,106,107,119. s. 32 ... 58. s. 33 ... 62, 86, 90, 94, 95, 101, 133, 138, 152. s. 34 . . . 154. s. 35 ... 154. s. 36 ... 154, 197. s. 37 ... 154. s. 38 ... 105, 106,119,130. s:39 ... 102. s.40 ... 74, 106. s. 41 ... 75. s. 42 ... 197, 217. Index of Statutes. X A \ v s. 43 L98. 29 & 30 Vic. c. L22 .. 204. s. 44 L98. 30&31 Vic. c. 35 s. 45 L98. 8.8 88. s.46 198. c. L06 .. 21 >7. s. 47 86, 95, 96, 122, 3] &32 Vic. c. 72 L65, 206. s. 12 40. s. 48 98. 32 & 33 Vic. c. 18 s. 49 98. s. 1 240. s. 51 164. 33 &34 Vic. 6. 78 ... 203. s. 52 106, 194. 34 & 35 Vic. c. 83 ... 204. s. 53 71, 195. 36 Vic. c. XXVI. ... 205. s. 54 71. 3S&39 Vice. 55 (Pub- s. 57 71. lic Health Act,1875) 27, 119, 167, Is;; s. 58 163. s. 69 181. s. 59 63. s. 94 120. s. 60 36, 37, 214. s. 98 L20. s. 62 58, 228. s. 104 120. s. 63 5, 198, 201, 202, s. 192 44. 206. s. 196 47. s. 64 202, 204. ss. 233 — 244... 72. a. 65 197. Sched. II. 206. s. 66 184, 194, 20, >. 36 & 37 Vice. 66 (Judi- s 67 53, 85, 95, 101, cature Act, 1873). 124, 157, 205, s. 25 173, L79. 213. 38 & 39 Vic. c 77 (Ju- s. 68 206, 207. dicature Act, 1875) 217. s. 69 207. 38 & 39 Vice 83 (Local s. 70 208. Loans) 73. s. 71 198. 40 Vic. o. 14 91, 187. s. 72 5,67. 40 Vic. c XXXVI. s. 76 213. (Somersetshire Schedule. Drainage) 23, 58, Part I 207, 209. 154. Part II 210. 42 & 43 Vic. c 49 ... 163. 26 & 27 Vic. c. 63 ... 205. s. 40 97. c. 88 44 Vic. c 12 (Irish Land Drain- s. 44 22:.. Act) 35. 44 & 45 Vic. c. I. ... 205. s. 28 237. 46 &47 Vic. c. 15 ... 22 k 28 & 29 Vic. c. 52 46 & 47 Vic. c. 37 (Irish Land Drain- (Public Health An. age Act Amendment L875, Support of Act) 35. Sewers Amendment 09 & 30 Vic. c. 62 ... 69. Act, 1883) 183 Al'TIIOBITlES AND ABMttA NATIONS. Alir.HKVI.vriOXs. A. & K Allen Alleyn Ap. i'u. B. & A B. & Aid. ... B. &C Hue. Ah. ... Barnard ... Bcamcs Beav Bing X. C. i;l., W. ... Bl., II Bligh Bracton Bull, X. P. Bulst Bunb Burn Burr Burton C. B C. B. N. S. C. -v 1' Cary Callis Cbitt. St. .. CI. &P Co. Rep. Comber... Com. Die. X ami: op Report on Subject of Authority. Adolphus & Ellis' Reports History of Lincolnshire Alleyn's Reports Appeal Cases (Law Reports) BarnewaU & Adolphus' Reports Barnewall & Alder - ■.ell's Reports .■Mi Barnardiston's Reports in Chancery Beavan's Reports Binghas B i - Bingham's (New Casi -i Reports Blackstone's, William, Reports Blackstone's, Henry, Reports Bligh's Reports De legibus et consuetudinibus An( I Buller's Xisi Prius, by Bridgman Bulstrode's Reports Bunbury's Reports Burn's Ecclesiastical Law Burrow's Reports Burton's Law of Real Property. Common Bench Reports Common Bench (Xew Series) Reports Carrington & Payne's Reports Reports Collected by Sir G. Cary Callis' Reading on Sewers Chitty's Statutes, Ith ed. Clark & Fmelly'.-. Reports Coke's Reports Comber on Tithes Chief Baron Comyn's Digest. Court. Queen's Bench. I>\ ! 1 . King's Bench it' Lords and > \ Privy Council $ King's Bench Bench Queen's Bench King's Bench Rolls Court Common Pleas.. Common Pleas.. Bench .. Common House of Lords King's Bench iner .. King's Bench . Common Pleas. Common Pleas. Nisi Prius Chancery House of Lord;- Bench and > ( Bong's Bench. * 1831— l-n 1833 1646— 1649 From 1875 1830— 1834 1818—1822 1823—1830 7th ed., 1832 1724—1731 1815 1840—1857 1822—1834 [840 171G— 1770 1788 -1796 1819—1821 1569 1817 1610—1626 1714—1760 9th ed., 1842 1756—1772 3rd ed., 1834 1845—1856 1856—1865 1S23— 1841 1558—1603 1622 1831—1846 1568—1611 1682 xxxviii Authorities kikI Alilin riolimis. AllUKEVI VI EONS. Cook .. Coop. Ch. < !a. . Cr. Pr. Cowp. Crab. Dig i !raig. Ju . Feud. Cripps Cro. Eliz Cro. Jac. Cr.C. C Dalt Dav. & M DeG. M.& G. Dc G. & Sm. I (eg r ,e Dick D. &K. Dowl. P. C. Drew Dr. & Sm. Dii [dale Dwarris Dyer i-:. x B E. 1(. & E. Eagle E. & E Ea i Elstobb Ex. E li".. Fenland Fitz. Nat. Brev. Fleta Fortesc . Fost. G. & D Glanville >pR] Si BJBC E OF A 1 IHokiiv Cooper' Cha (I emp. Eldon) r's l Vuwii Practice n irts Crabb'a Digest and Lades to all the Si Jus. Peuda le, bj 'I aos. Craig Cripps mi Compensation. Reports, \ ol. i ■i -, vol. ii ( Jrown's Circuit i lompanion Dalton's Justice of the Peace Davison .v Mi rx\ ale's Report - . 1 1" i ;. , Macnaghton & ( rordon's Bank | ruptcy Reports I << i ; ■. Smale's Reports a the Law of Titbes Dickens' Reports Dowling & Ryland's Reports D"vv lni' '.- Prad ice Cases Chancery Reports Drewry & Smale's Reports On Embanking and Draining Sir Fortunatus Dwarris on Statute Ellis & Blackburn's Reports Ellis, Blackburn \ Ellis' Reporl - Eagle on Tithes .... Ellis* I :i lis Reports Ea i' B ports ;i A.ccoun1 of the Bedford Le\ el Exchequer Reports Law Reports, Exchequer Division Fenland, by Miller & Skertchley. Fitzherbert's Natura Brevium ... Commentarius Juris Anglican! Fortescue's Reporl s i Reports Gale & Davi on' i;. pui-ta Gale on Easements i • ii i he Law i if I »i -i ress Glanville's Reports ( rranl i in Corporations Grantham, the Land Drainage A.ct, 1861 Coi Chancery Bench Queen's Bench. Bi in-li Bench ( Lord ( thancellor and > ( Lords Justices . * fV.-C. Bruce and j ( V. -C.Parker i Chancery Queen's Bench v King's Bench a ad ) I. Queen's Bench .. > V.-C. Kindersley V.-C. Kindersley King's Bench . Queen's Queen's Bench. King's Bi lull Exchequer King's I Queen's Bench. ParliamentaryElections Date. i sir, 1815 Is | I 1771—1778 lsll Isl7 1732 temp. Eliz. temp. J ames 1820 L742 1843- 1-11 Is., 1—1855 Is li;— 1852 1820 1550—1792 1822—1828 1830—1841 1852—1857 1859—1863 L662 I sis 1513—1593 1852—1868 L858 L830 1858—1861 l.so 1—1814 1 793 1847—1857 1875 — 1880 1791 [647 1711 — 1731 1762 lsll- I -I.; 4th cil., L868 1823 1770 1850 Authorities cmd Abbreviations. x x \ 1 x Abbbeviationb. ii. I.. Ca. H. & M. II. ft N. TTalliwel Bard. Hare P. ('. Hawk Herne Hodg. Holt, N. P llutt. Inst Ir. C. L. . .1. .V H Jut Jur. N. S Keb I,. .1 L. R I.. Ii. Ch I,. B. Bq L. Ii. C. P L. It. K. X I. Ap. I,. Ii. Ex I.. T L.T.J Lamb. Eir Lamb. Per Lamb. Ety Leoming & Cross l.i\ Lib. Ass Lloyd Lofft Name 01 i; i pobi on Si bjeot ov A.uthobity, B : Lords Cases (< Hark) I Sale, Halt- ili- .1 in.' Mai is (a i ract by Lord i Ihief Jusl Lee Bale) in 2ml ed. of Hall on the - b Lk Hall. Essay mi the Seashore ... roaiyof Archaic and Provincial Words I [ardres' Elepoi I - Hare's B Harris' History of Blent Hasted's IlistoiN i il' Kent Hawkins' Plea A Reading on Sewers .... is' Reports Holt's Reports llui inn'.-- Reports In-; Urates i in 1 1,,' Laws of Ki lommon Law Reports Johnson & Hemming's Reports JerwOOd, Dissertation on the rights of") the sea I ' mil bed of - tidal harbours and navigable rivers ...) •I'n Lsl Reports Juri i i Now Series Reports k M i's Reports Law Journal Reports Law Reports ,, ,, Chancery Appeals ,, ,, Equity ,, ,, Common Pleas ,, ,, I ad Irish Appeals ,, „ Exchequer Law Times Reports ,, ,, Journal Lambard's Eirenarcha „ Perambulation of Kent ,, Etymoli igy Leeming & Cross or Quarter Sessions Levinz's Elepoi ts I. bei \ 3 -i-anim i.iu\ d m; Compensation. Lofft's Reports ... House i v.-c. w Exchequer j V.-C. Wigram, [ Bruce, 'I'm' '. W I Nisi Prius Common Pleas.. 1 lommon Law V. ('. Wood All the Courts All the Courts llench .. All the Courts All the Courts .. ry 'i Pleas.. if Lords All i lie Courts .. KiiiLc'> Kind's 1 King's : 1847 1866 2nd ed., Is;:, L850 1055— 1 Wo 1841 1719 17'. io 1710 1G3- 1835— K37 1817 1G1G— n J 1809 1867 ls59— ls(j-j 1 851 I 1S37— l-~r,t 1855— 18C0 1661—1671 From 1831 From 1865 1865—1875 From 1847 From 1847 1619 1656 17:io 2nd ed., Is7r. 1600—1090 1327 — 1377 1771—1771 xl Authorities unit Alihreriatioii*. A ismti:\ ; l.llllllev Lutw. M. & (I. M. & S M. & W M ; 1 1 1 . Firm. Bur§ March Maxwell Morehouse Mod. Mood. & M. Moore Moore My. &C. .. My. .V K. Nev. .v l'. New Rep. Noy P. &D Thill. ECO. Thill. Bv. . Price Prideaux .. Q. B. Q. B. I). . Bail. Ca. .. Raym. Ld, Reports. oil. Salk. N\mi:oi Riii'OKT ni; Si ■ i :.t i : « i 01 \i moiuty. ( 'olliT. Lumley, Parochial \ men! Act Lumley, Public Bealth Act, 1875. Lutwyche's Reports Slacnaghl en & Gordon ........ Maule .v Selwyn's Repm I s Meeson & Welsby's Reports Firma Burgi B po Sir Pel i i ill on Stal utes Mirehouse's Treal ise on Til lies Modern Reports (Leach) .. & Mai kin's Reports e's Reports Serjeant Moore's Reports \\\ Ine & Craig's Reports . Mylne & Keen's Reports . Neville & Tcny's Reports v. i Reports Nby's Reports Common Pleas Chancery King's B Exchequer King's Bench \ King's B inch ai [~i i Queen's Bench ... ) Nisi F] ms . Common Tleas Pad! ,, , Fen a ad I '] Is of M id-Lincoln shire. Perry & Davison's Repoi ts Phillimore's Ecclesiastical Law Phillipps on Evidence 1 iporl s Prideaux on Tithes Bench Reports (Adolphus & Ellis) Hi , isioii ( Law Reports) ... i iases Lord Raymond's Reports ... Selecl Committee, July, 1823. „ ,, on Thames Ri\ er ( Pre- j vention of Floods Bill)... j „ ,, on Thames Floods Pre- / mention j ,, ,, 1 1 . > 1 1 e i ,i Li irds on Con ) Beryancj Boards s Rolle's Abridgement Romney Marsh Charter | Li tied by ) John Wolfe ) Russell on Awards. Salkeld's Reports ( Chancery, temp. Cot- '/ ' tenham&Lyn I V, temp. ) Ihursi j ( King's Bench, and t I Queen's Bench S Common Tleas King's Bench Queen's Bench Exchequer Queen's Bench Queen's Bench I li Chancery ( King's Bench and i i Queen's Bench... j > King's Pencil and i ' Queen' Bench ) 1091—1730 .Inly, 1823. '.'1st, June, Is77 27th .Inly, 1n77 28th .luly, 1877 Authorities and Abbreviations. xli I Abbreviations. Sc. Sess. Ca. . Scott Bold. Mar. 01. Seld. L. T. Sewers Shelford Shep. Abr Sid Sim Spelm. Gloss Stephen Cr. Proc... Str T. R Taunt Thring Tom. Law Diet Vent Ves. j Vin. Ab W. Bl W. R Will., Woll. & Dav Wils Wood Inst. Wool. Met. Man. .. Woolrych Y.& J Year Books Name op Report or Subject of Authority. Scotch Session Cases. Scott's Reports Seidell's M;i re < 'liiusutii ,, Law of Tithes La \\s of Sewers Shelford on Tithes Shepherd's Grand Abridgement of the^ Common and Statute Law of England ) Siderfln's Reports Simon's Reports Spelman's Glossarium Archaiologieum Criminal Procedure, by Sir Jas. Stephen Strange's Reports Term Reports (Durnford & East) Tapping on Mandamus Taunton's Reports Termes de la Ley Thring, Land Drainage Act, 1861. Timlin's Law Dictionary Vent ris' Reports Vesey Junior's, Reports Viner's Abridgement. Sir William Blackstone's Reports Weekly Reporter Willmore, Wollaston & Davison's Reports Well's History of the Drainage of the ) Bedford Level j Wilson's Reports Wood's Institutes Woolley on Warping. Woolrych's Metropolis Management Acts Woolrych on Sewers Wright's Provincial Dictionary Young & Jervis' Reports. Year Books Couht. Common Pleas King's Bench Chancery Queen's Bench. King's Bench Common Pleas Queen's Bench. Chancery King's Bench All the Courts King's Bench Common Pleas. Exchequer ... King's Bench 1695—1704 1732 3rd rd., 1842 1675 1659—1671 1826—1848 1687 1883 1716—1747 17s.-, -1800 , 1807—1819 1708 1820 166S— lf!92 1789—1817 1746—1779 from 1852 1837 1830 1734—1758 1730 2nd ed., 1880 3rded., L864 1857 1826—1830 1307—1547 General View, CHAPTER I. GENEKAL VIEW. The improvement of arterial drainage throughout the country has for some years past occupied the attention of the Legis- lature. In the year 1877 a Select Committee of the House of House of Lords • .„ Committee, Lords was appointed to inquire into the operation of existmo- 1877. statutes in regard to the formation of and proceedings by Com- missioners of Sewers and Conservancy Drainage and Navigation Boards, and to consider generally by what means their pro- cedure might be improved and their powers enlarged, so as to provide more efficiently for the prevention of floods, the storage of water, and the discharge of other functions appertaining to such Boards. Following upon the report of this Committee, the Government, in 1879, introduced into a Bill dealing with County Boards certain provisions for the better management of rivers, founded upon the recommendations of the House of Lords Committee, but this measure was not passed. In the Session of 1881, a Bill intituled " The Rivers Conservancy and RiveraCon. Floods Prevention Bill " was brought into the House of Lords, and, having passed that House, reached the House of Commons, but was ultimately abandoned. The Bill was the next Session laid upon the table of the House of Commons, and again failed to pass the Committee Stage, and a similar fate befel the measure of last Session. So far this year the Government have not even intimated an intention of proceeding with the measure, and appear some- what disheartened by the failure which has attended their 2 Land Drainagi and Sewers. efforts of (lie three previous years. Before, however, examining the proposals of the Government contained in the Rivers Con- servancy Bill, and with a view to tletermine the value and extent of (he changes to be by it wrought in the law, if is necessary to — (1) review briefly the existing Statutes dealing with Land Drainage; (2) to inquire into their failure to cope with the necessities of the present time; (3) to show in outline the causes of floods ; (4) and lastly, to point out the way in which it is proposed to treat the question in the Rivers Conservancy . Bill. statutes The great measure which superseded the casual issuing of a to land drainage and Commissions of Sewers by the King, and which was the i lommissions of Sewers. result of the incorporation of the Statute G Hen. VI. c. 5, was the 23 Hen. VIII. c. 5, [The Bill of Sewers] and upon this Statute has been founded all subsequent legislation affecting the powers and duties of Commissions of Sewers. 23 Hen. viit. This Act provided for the appointment by the Crown, upon the recommendation of certain officers of State, of Commis- sions of Sewers. The Commissioners were clothed with authority to maintain and repair all existing walls and sewers, to remove nuisances, and to levy and make rates for the pay- ment of such expenses as were thus incurred. 3&4Edw.vi. The Act was followed by the 3 & 4 Edw. VI. c. 8, prolonging c. 9.' ' Commissions for five years and by 13 Elizabeth c. 9, which further extended the time to ten years. The powers of Com- missioners of Sewers were thus very extensive, but the check upon them imposed by the Legislature in conformity with the spirit of that period was the necessity of holding an inquisition and obtaining the presentment of a jury. It has been well observed that if full effect had been given by the Courts of Law to the very wide powers conferred by the Act of Henry VIII. there would have been but little need for any of the considerable amendments in the law which have since been made, or for the large number of private 6r< neral View. Drainage Acts, which testify to the limitation of authority set to the Statute. In the year 1833 an Act was passed (3 & 4 Will. IV. c. 22) 3&4W01.IV. which was intituled, "An Act to amend the Law of Sewers." Besides dealing with certain points of administration, as to the qualification of Commissioners of Sewers, their meet- ings, regulations as to making presentments and the apportion- ment of rates, powers were given expressly for the first time to the Commissioners to erect new works, and to purchase land for the maintenance and improvement of existing works. But this increase of jurisdiction was considerably curtailed by confining new works to maritime works, or works connected with navigable rivers, or streams flowing into navigable rivers, while their construction had to be preceded by the consent of the owners and occupiers of three-fourth parts in value of the lands to be charged. The 4 & 5 Vic. c. 45 enabled the Commissioners to levy a 4 & 5 vie. c. 45. General Sewers Tax as distinguished from a General Sewers Rate. The 12 & 13 Vic. c. 50 provided for the creation of sub- i2&i3Vic. c. 50. districts, and gave power to the Commissioners to make separate rates and to appoint officers known as Dyke-reeves with certain duties. The law, therefore, of arterial drainage was up to the year 1861 contained in the four Statutes which have been quoted, but an important point in the history of this subject is reached at this date. The Land Drainage Act of 1861 (24 & 25 Vic. 34 4 J6 Vic. c. 133), in large measure due to the efforts of Sir George Drainage Act, Cornewall Lewis and Sir Henry Thring, established a new machinery. The Act is divided into thi'ee parts. Part I. amends the law relating to Commissions of Sewers ; Part II. provides for the establishment of Drainage Boards, introducing for the first time the elective principle into drainage adminis- tration ; Part III. enables private owners to procure outfall* B 2 4 Land Drainage and Sewers. The effect of the Act is to confer cumulative powers on Com- missioners of Sewers, and to provide for the continuance of every existing Commission until superseded by the Crown. Power, under Part I. of the Act, is given for the issue of new Commis- sions. Before a Commission is issued there must be a petition of the proprietors of one-tenth part (if the land to the Inclosure inciosuro Commissioners, (a) who, if they think fit, send down an Commissioners. inspector to the locality to hold a Court in accordance with a notice duly advertised. The inspector visits the locality and reports to the Inclosure Commissioners as to the desirability of issuing" a Commission. Upon consideration of the report the Commissioners may or may not assent to the petition and recommend a Commission as the case may be ; but their consent cannot be given if the proprietors of one-third part of the land express in writing to the Commissioners their dissent from the proposal of the petitioners. So much, therefore, for the means provided by this statute for increasing the number of Commis- sions throughout the country. Classification of This extension of Commissions, however, was accompanied by works. an enlargement of powers with a view, it is presumed, to bring the Act more into harmony with the general purposes of the Act of Henry VIII. Accordingly, a reference to the 16th section of the Act will show that the Commissioners' powers are classified under the heads of I. — Maintenance of existing works. II. — Improvement of existing works. III. — The construction of new works. and defining terms are given to works of each class. No restrictions are placed upon Commissioners in carrying out works of the first class, except that they must make compensa- tion for the injury they may cause to any person. With regard to works of the second and third class which may involve («) The Inclosure Commission is now styled the Land Commission. (Intent I Vim-. :> an expenditure exceeding C1,oO( '), the dissent of the propriet of more than one-lmlf of tlie area will prevent (heir execution by the Commissioners, and with regard to the purchase of land for new works, unless the owner of the land required consents, the Commissioners have to receive the sanction of Parliament by obtaining a provisional order. Another feature in this part of the Act is the provision made for dispensing with the present- ment of a jury, but at the same time giving in place of it an appeal to Quarter Sessions. Commissioners are also enabled to commute certain liabilities to repair ratione tenurce, which will be commented upon hereafter. Under Part II. of the Act provision is made for the constitu- Kioctive drainage tion of elective drainage districts, which are created under the districts. system of provisional order obtained on petition of the pro- prietors of one-tenth part of any bog, moor or other area to the Inclosure Commissioners, who act upon the report of their inspector if they are satisfied that the proprietors of two-thirds of the acreage of the area assent to the scheme. The members of the Drainage Board exercise all the powers of Commis- sioners of Sewers, and any persons aggrieved by their acts have the right of appeal to Quarter Sessions. They are elected by the proprietors of the district, who vote according to the scale which is given in the Commissioners Clauses Act, 1847. Thus the superintendence of the drainage in a particular district becomes vested in the Drainage Board, which is a body corporate having perpetual succession and a common seal. With Part III. of the Act the subject of this treatise is not Private outfalls, directly concerned, inasmuch as its effect is to enable an owner of property at his own expense, to procure an outfall through his neighbour's land on the condition that any injury thereby caused is capable of being fully compensated for by money, and disputes thus arising are referred to arbitration. This account of the Land Drainage Act, 1861, concludes a resume of the various statutes which regulate the law of arterial Land Drainage and Sewers. Causes of failure of Drainage Acts. Limit of jurisdiction. New works. Number of consents. Jury. Eating. land drainage, and leads now to an inquiry of the causes of their failure to meet the necessities of modern times. Com- mencing with the Act of Henry VIII., it may be observed that wide and sweeping as are the powers contained in it, yet they are expressed in so loose and vague a manner, that when litigation arose upon the interpretation of the Statute there was ample room for the Courts of Law to place upon its language certain restrictions. Accordingly the effect of the Act is cut down by limiting the jurisdiction of Commissioners of Sewers to navigable rivers and sewers communicating there- with, or with the sea above the place where the tide ebbs and flows. The Commissioners power also in relation to the con- struction of works of defence was nai'rowed down to the maintenance and improvement of existing works, and until 1833 it was impossible for them to erect any new work. Again, when new works were expressly authorised by the Statute of 3 & 4 Will. IV. c. 22, the Legislature failed to confer any power to purchase land for the purpose, and it is only by the Act of 1861 that such power is given. It is true that the Act of Will. IV. did vest a much wider jurisdiction in the Com- missioners, but the large number of consents which were required from the owners and occupiers of land at the different stages operated to check any extensive exercise of it, while the necessity until 1861 for the cumbrous jury pro- cedure has undoubtedly had a tendency to retard administrative activity. The inquiry by the Ilouse of Lords Committee elicited further instructive information as to the working generally of the Drainage Acts. In the front of the discussion occurs the question of rating. It would involve too much space at this place to enter upon an examination of the criticisms to which I lie principle of rating was exposed. That principle, which has been handed down from the time of Henry VIII. , and which is repeated in the Land Drainage Act of 1861, is to rate in proportion to the benefit received. The Ilouse of Lords Com- General View. 7 mittee reported that that principle appeared to work unfairly in some cases, and to be very difficult of application in others, but it is a noteworthy fact that twenty of the twenty- seven witnesses who were examined by the Committee were against extending the area of taxation beyond the area of benefit. Again, it was reported to the Committee that generally the Towns. Act of 1861 failed in useful operation, and upon several grounds. First, it may be noted that the Act gave no extension of power to bring towns within the reach of the authority of the Com- missioners, the Act being intituled to amend the law relating- to the drainage of land for agricultural purposes, so that its scope is strictly confined to works of agricultural drainage. It may here be useful to append an answer of Mr. A. W. Peel, Evidnnco of Mr. J ■"• .A. W. Peel, M.P., the present Speaker of the House of Commons, in the MJ». House of Lords Committee, as graphically illustrating the position of these tw r o questions of rating and towm drainage : — " The Act does not apply to towns, and there is another very great difficulty which I wish to allude to. When I state the tw r ofold difficulty, I believe the first difficulty to be that the sewers rate can only be levied after the rate of every person's tenure, and in proportion to the benefit that he receives ; and secondly, that a distinction is drawn between agricultural land and land occupied by towns. The Onse, I think, illustrates the second difficulty, the exemption of towms from rating. There are many towns on the Ouse which suffer very much from The Ouse. repeated floods. I have mentioned Bedford, St. Ives and Huntingdon, and the villages on the banks of the tributaries and the main stream suffer very much. There is no provision whatever for taxing the houses, and though it might be a very delicate thing to do to impose a fresh tax, yet I believe many towns would be only too glad to contribute if there could be a fair apportionment of the rate. You may cany your works up to the boi-ders of a town, you may prevent a hundred streets of a (own from being flooded by water, and yet you are not able to 8 Land Drainage and Sewers. ask that town lor any contribution; and the consequence is iliat you lose a great source of revenue and a great means for carrying out a complete system." Eatione tenures. An attempt was made in the Land Drainage Act, 1861, to get iid of individual obligations to repair sea-walls or embankments, a form of liability which is known as ratione tenurce. The mode of doing this is to give the Commissioners an opportunity of commuting the liability of every person who may be prescrip- fcively bound for a fixed sum, which is settled by the Inclosure Commissioners. This permissive provision of the Act has, however, failed in its objects. It is not easy to calculate the enormous responsibility that rests on a few individuals to do certain works of repair in order to keep up some ancient work of coast or river defence, nor the probabilities of their being able in many instances to make good the damage which their neglect or pecuniary incapacity may entail, and it is of course of the highest importance that the country should be secure from the inroad of water. But the circumstances which determine the liability are so various, and the obligation in many cases has been spread over so large a number of individuals, that any commutation of general commutation has never taken place, and the Inclosure liabilities. , J. Commissioners report, that unless commutatation does take place quoad all the liabilities of this kind in a particular district, it is very little use commuting one or two at a time, and they unhesitatingly advise that the drainage authorities should be compelled to effect commutation. Local Acts. A successful application of the Land Drainage Act, 18G1, and in fact of all public statutes of drainage must be, generally speaking, impossible so long as the country continues honey- combed with the vast number of drainage, navigation and other Boards, which exercise jurisdiction in virtue of private Acts. The public Acts have from time to time given exemptions and relieving clauses, saving the rights of these various local bodies, which, as long as they exist, prove very difficult to over- come in the operations conducted by Commissioners of Sewers or \\ tiers of land of a rateable value in the aggregate of not less than two thousand pounds, and situate in any river basin, or contiguous river basins, also any sanitary or conservancy autho- rity (a) having jurisdiction within any part of a river basin or contiguous river basins, may apply to the Local Government Board, by petition, praying that such basin or basins, or any part or parts thereof, may be constituted a conservancy district, and that a Conservancy Board may be established therein, having power to execute all such works as may be required for the prevention of floods in such district, and for carrying into effect the purposes of this Act ; and shall in such petition describe, by reference to a map, the district for which it is pro- posed that the Conservancy Board should be established, and shall indicate generally the purposes and nature of the principal works which, in the opinion of the petitioners, it is desirable that the Conservancy Board should undertake. "4. On the receipt of the petition, the Local Government Board may, if they think a sufficient prima facie case has been made out, and after requiring security to be given for any costs which may be incurred by the Local Government Board in rela- tion to any local inquiry directed under this section, direct a local inquiry to be made by an inspector as to the expediency of constituting the proposed district, and as to the limits to be (n) A conservancy authority is defined in the Bill to mean any Com- missioners of Sewers appointed by the Crown, also any Conservators, Com- missioners, trustees, or other persons having authority by virtue of any Act of Parliament other than this Act to protect or control the navigation or use of any watercourse ; also any Commissioners for Drainage or Drain- age Board appointed by Act of Parliament. General View. I 5 assigned to such district, and as to such further incidental matters as the Board may think fit; and in particular tin- inspector shall inquire what lands ought to be described as low- lands, midlands, and uplands, For the purposes of this Act, and what works, if any, have been executed for the protection of any such lowlands or midlands from floods, and in what pro- portion such lowdands and midlands ought respectively to contribute to the expenses of the Conservancy Board, and what uplands, if any, ought to be included in the district, and in what proportion they ought to contribute to any expense of the Conservancy Board. "5. Before any local inquiry is made under this Act, the inquiry by Local Government Board shall give public notice, by advertise- ment and otherwise, in such manner as they may think best adapted to give information to persons locally interested, of the time and place, or times and places, at which the inquiry will be held ; and the inspector shall hear any persons locally interested appearing before him, and desirous of being heard in relation to the constitution of the district and the establishment of the Conservancy Board. " 6. (1.) If the Local Government Board, after receiving the Constitution of v ' ° district. report of their inspector, together with any evidence taken by him, determine to constitute a Conservancy District, as prayed by the petition, with or without addition of any lands to or exclusion of any lands from the lands proposed to be included in the district, they shall frame a draft Provisional Order con- stituting the Conservancy District, and establishing a Conser- vancy Board, in such manner as they think expedient, having regard to the circumstances of the case, but subject to the following regulations : — " (i.) Each of the descriptions of lands included in the district shall contribute in such different proportion to the expenses, or part of the expenses, of the Con- servancy Board as may appear to be equitable, and as may be provided by the Order ; 10 Land Drainage and Sewers. " (ii.) The highest rate in the pound payable by any uplands included in the district shall not exceed one- tenth part of the rate in the pound payable in respect of the lands in the district which pay the highest general rate ; and in fixing the amount of such rate regard shall be had to the extent to which any artificial drainage works for such uplands con- tribute to cause or aggravate floods within the district. " (iii.) In constituting the Board, care shall be taken to secure thereon due representation of owners and occupiers, having regard to the incidents of taxation under this Act; -and provision shall be made, when- ever circumstances require, for the representation of sanitary authorities, conservancy authorities, or other similar bodies. " (2) Provision may be made by the draft Provisional Order for constituting, or for enabling the Conservancy Board to constitute sub-districts, and for placing every sub-district so constituted under charge of a committee to be appointed as directed by the Order, and for investing any such committee with any of the powers and duties of a Conservancy Board under this Act, and for the differential rating, or partial or total exemption from rating (if it appears just), of all or any of the lands in any such sub-district or sub-districts. " (3) Provision may also be made by the draft Provisional Order, whether the district is or is not divided into sub-districts, for defraying the expenses of executing, or of executing and maintaining, any particular work or works wholly or partially out of a special rate, to be assessed on such of the lands within the district as will derive special benefit from such work or works, and for making, assessing and levying any such special rate ; also, if it appears to be required by the special circum- stances of the case, for enabling the Conservancy Board to execute or assist in executing outfall works beyond the limits of General View. 17 their district. Provision may also be made by the draft Pro- visional Order for the partial or total exemption from rating of any lands in the district by reason of efficient works i'or the protection of such lands from tloods having been already executed, or of money having been beneficially expended on an outfall for the common benefit. "(4) Subject to any alterations "which may appear expedient to the Local Government Board, all or any of the provisions contained in the first schedule to this Act may be adopted in the draft Provisional Order. "(5) The Local Government Board shall cause printed copies of the diaft Provisional Order to be deposited with the clerk of the peace of every county in which any part of the conservancy district constituted by the draft Provisional Order is situate, and with the overseers of parishes, and with the several sanitary authorities; also, where such authorities exist with the conservancy authorities, or other similar bodies exercising jurisdiction in any part of such district. Any copies so deposited shall be open to inspection, without fee, by all owners and occupiers of land within the district. Arrangements shall be made, under the authority of the Local Government Board, whereby copies of any draft Provisional Order may be procured within the district by any person requiring the same on payment of a sum not exceeding two shillings. " (G) The Local Government Board shall cause notice to be published of the deposits of copies made in pursuance of this section, and of the time and place or times and places at which one of their inspectors will attend to hear any objections to the draft Provisional Order. " (7) After receiving the report of their inspector with respect to the draft Provisional Order, the Local Government Board may, subject to the provisions of this Act, make the Provisional Order, with such additions and modifications as to them seem expedient. But the Order so made shall not be of any validity until it is confirmed by Act of Parliament. C 18 I j< i it < I Drainage arid Sewers. Principle of division of lands in constituting district. Number nf consents. " 7. In constituting a Conservancy District under this Act, the general principle of divisions of lands shall be to describe lands subject to ordinary floods and to damage therefrom as 'low- lands,' and lands occasionally subject to floods or to the entire or partial obstruction by flood of drains or outfalls passing under or through them and to damage therefrom as ' midlands.' The remaining lands, if any, included in the district shall be described as k uplands.' " The first observation to be made upon this part of the Bill is the small number of owners and occupiers which is sufficient in one watershed to set in motion the machinery of the Local Government Board, and which it may be presumed has been proposed in consequence of the evidence taken before the House of Lords Committee, that the large number of consents required at the various stages had caused the Land Drainage Act of 18G1 to meet with a comparatively narrow operation. With a view to secure uniformity and completeness of action in dealing with each river, an opportunity is afforded under the third clause of placing a whole catchment area under the jurisdiction of a single body of conservators, who may be responsible for main- taining it throughout in an efficient state. Classification of Much criticism has been devoted to the clause which provides district, for the division of lands in the area into uplands, midlands, and lowlands, and t here can be no doubt but thai around the prin- ciple of this division the chief struggle will be waged. The distinction of land into these three classes, and the liability of contributing to payment of rates in certain propor- tions marks an entirely new departure in the history of the Law of Land Drainage. The only ground upon which taxation has been based hitherto has been that the lands have been benefited by the works undertaken by the drainage authority, while here the only principle upon which payment by the uplands can be defended is that those lands which contribute to the causes of flood shall pay towards the expense of the efficient drainage of the Hooded district. Catchment area. Principle of ral mi;'. General View. 19 Thegravesl apprehensions as to the effect of this proposal have been expressed, but the President of the Local Government Board has invariably pointed out that while the principle of contribution to flood must be maintained, protection is amply given by the exempting provisions of the Bill. The Conservancy Hoard thus established ia made 1 a body incorporation of Conservancy coi'porate, and invested with the following powers, which ari' Board. given in the second part of this Bill: — "PART II. "Powers of Conservancy Board. "9. The purposes of this Act are the Conservancy of Rivers, Purposes of and the protection of land from injury by Hoods. "10. In order to carry into effect the purposes of this Act, a Conservancy Board may, within their district : — " (i.) Cleanse, repair, or otherwise maintain, in a diu 1 rowers ^ to state of efficiency, any watercourse or outfall for water, or any wall, bank, dam, or other defence against water, or do any other act for the purpose of maintaining in a due state of efficiency any work required to be so maintained for any of the pi;rposcs of this Act (and all works and acts made or done in pursuance of this sub-section are in tins Act referred to as ' maintenance of works ') ; and " (ii.) deepen, widen, straighten, embank, extend, alter, or otherwise improve, any watercourse or outfall for water, or remove any mill-dam, or other dam, weir, or other obstruction to any watercourse or outfall for water, or raise, widen, or otherwise alter any wall, bank, mill-dam, or other dam or other defence against water, or do any other act for the purpose of improving any work required to be improved for any of the purposes of this Act (and all works and c 2 20 Land Drainage and Sewers. acts made or done in pursuance of this sub-section arc in this Act referred to as 'improvement of works ') ; and " (iii.) make any new watercourse or new outfall for water, or erect any new bank, dam or defence against water, or till up or re-open any disused watercourse, or erect any machinery, or construct any other new work required for carrying into effect the purposes of this Act (and all works and acts made or done in pursuance of this sub-section are in this Act referred to as ' construction of new works ') ; '• Provided that— " (1.) Compensation shall lie made for all loss or injury sustained by any person by reason of the exercise by the Conservancy Board of any of the above powers, and the amount of such compensation shall in case of dispute be settled in manner provided by this Act ; and " (2.) No work shall be deemed to be a new work that is in substitution for an old one, where such old work is so much out of repair or so inefficient as to make it expedient to construct a new work in place thereof "11. For the purposes and subject to the provisions of this Act, a Conservancy Board may from time to time purchase or take on lease, or otherwise acquire, and may exchange, any lands whether situate within or without their district. " 12. Every Conservancy Board shall from time to time ascer- tain whether the purposes for which the Hoard was constituted are being carried into effect throughout their district, and in particular whether there are any obstructions to the flow of water therein, and whether the hanks, dams, and other defences against floods are in a proper state of repair. "13. — (1.) Where any person within the district of a Con- liabiiitaes of servancy Board is liable by reason of tenure custom prescrip- private persons. J J L L (ion or otherwise to do any act or thing or construct any work I'.iuvr; as to a :quisition of lands. Powers as to inspection of district. Powers as to commutation of General View. -1 by this Act included under the description of 'maintenance of works,' 'improvements oi works,' or 'construction of new- works,' suck Board may, if fchey think fit, commute such liability Eor such sums of money as may lie agreed on, or as in default of agreement may be settled in manner provided I))' tins Act. " (2.) Any commutation so made may be by way of gross <>r annual charge on the lands of the person in respect of which the original liability arose ; and any charge so created shall be recoverable by the Conservancy Board in the same manne: in which tithe rent-charge is recoverable, and shall have priority over all incumbrances subsequently created by any owner of the lands on which the same is charged. " (3.) Any gross sum exceeding one hundred pounds received by the Board under this section shall be invested in securities in which trustees are for the time being authorised by law to invest, and the income thereof, and any annual payments made to the Board under this section shall be applied only in dis- charge of the commuted liability. " (4.) The record of any such charge shall be deposited in the office of the clerk of the peace of the county in which the lands, or the greater part thereof, are situate, and that record, or any certified copy thereof, shall be receivable in evidence in all Legal or other proceedings. " (5.) In the absence of any such commutation, the liability of any person to defray oi contribute towards the expense of making, completing, altering, amending or maintaining any sewer or drain, or any wall, bank or work for protecting the land against the force or encroachments of the sea, or of any river or flood, or doing any other work within the district of a Conservancy Board, shall continue as if this Act hail not passed. Ln the case of any commutation under this section the Conser- vancy Board shall provide, so far as practicable, Eor not altering the liability of persons under any specific contract in respect of the obligation which is commuted. ■2- Land Drainage and Sewers. Po* rs as to " 14. — (1.) Where any person with in the district of a Conser- enforcemenl ot v / ' * liabilities oi vancv Board is liable bv tenure custom prescription or otherwise private persons. to do any act or thing or construct any work by 1 his Act included under the description of 'maintenance of works,' 'improve- ment of works,' or 'construction of new works,' the Board may take such legal proceedings as they may be advised for the purpose of enforcing such liability. " f2.) Proceedings for the purpose of enforcing such liability may (without prejudice to any other mode of proceeding) be taken in a court of summary jurisdiction cm complaint by the Hoard, and the court may enforce the same by summary order, and may further, in the event of the defendant failing to comply with any order of the court directing him to construct any work or do any act or thing, empower the Board to construct such work or do such act or thing, and the Board may recover in a summary manner From the defendant any expenses incurred by them in constructing the work or doing the act or thing. " (3.) Any person aggrieved by an order made by a court of summary jurisdiction in pursuance of this section may appeal from such order to a Court of Quarter Sessions. "(4.) Where any defendant on appearing before a court of summary jurisdiction to a complaint by the Board objects to the complaint being decided by such court on the ground that the complaint involves a question of expenditure (exclusive of costs) of not less than two hundred pounds, the court, if such ground of objection is established to their satisfaction, shall not have jurisdiction in the matter." Classification of The Bill in the LOth clause supra adopts almost the precise Art',' i86i, language of the Land Drainage Act, 18G1, keeping the disl inction of the three kinds of works, viz. : the maintenance of existing works, the improvement of existing works and the construction o[' new works, which may be undertaken by the Board, and pre- serving the somewhat ambiguous phraseology of the second proviso. The importance of this classification is seen in a subsequent clause, which provides that the whole of the expenses General View. -■'< of the improvement of works and llie construction of i:ew works and one half of the other expenses incurred by the Board, shall be borne by the owners of lands within the district. The remainder of the expenses incurred by the Board are to he borne by the occupiers of the lands within the district, except that such of those expenses as are assessed in respect of uplands are to be borne by the owners. The power to commute liabilities ratione tenurce proposed to Batione tenura. be given in the clause above is analogous to the provision for commutation in the Land Drainage Act, 1861, but under the commutation, latter Act the consent of the Inclosure Commissioners is a preliminary step. It is somewhat remarkable that it is not proposed to give effect to the strongly pronounced opinion of Mr. Ridley in his evidence before the House of Lords Committee in 1877, that it should be obligatory upon the drainage authority to commute these liabilities, especially as the importance of the commutation being admitted, the Inclosure Commissioners could only report two instances of their consent being required between the years 1861 and 1877. The Somersetshire Drainage Somerset 1 )v;i i i ii\ ,r c Act Act, 1877, by ss. 59-6.") ( f /), illustrates the application of the i877. compulsory powers which were advocated by Mr. Ridley, and which have been found necessary to deal with such pre- scriptive liabilities in a district where tidal rivers are enclosed by sea-banks, and the occupiers were liable for the repair of certain sections of them, varying from two to two hundred yards. The following are two of perhaps the most important clauses in the Bill, but without them it would seem hopeless to propose any remedial measure for a uniform and comprehensive scheme of drainage in a district in the face of the existence of the numerous private Acts relating to drainage and navigation, "which at the present time paralyse the action of Commissioners of Sewers and other public drainage authorities. (a) The Somersetshire Drainage Act, L877, 40 Vie. c. xxxvi., Part ill., ss. 59-65, will lie found set mil in Appendix ('. post, 24 ha/nd Drainage and Servers " LOCAL ACTS, etc. Provisions " 16. Where it is represented to the Local Government Board respecting local ........ , Acts that any local Act in force within the district or proposed district of a Conservancy Hoard interferes or is likely to interfere with the exercise of the powers of the Conservancy Board under this Act, the Local Government Board may, by the provisional order establishing such Conservancy Board, or by any subsequent provisional order, alter or repeal such local Act, so far as may be requisite for enabling- such Board effectually to execute the purposes of this Act. and may confer and impose on such Hoard all orany of the powers, rights, duties, obligations, and liabilities of the authority entrusted with the execution of such local Act. Provisions " 17. Where the Local Government Board are satisfied that the respecting Commissions district of a Conservancv Board cannot be effectually protected of Sewers;. J against floods without the interference with the powers of some Commissioners of Sewers, Drainage Board, or other conservancy authority under any general Act of Parliament, they may by provisional order modify or restrict the powers and duties of such Commissioners or other conservancy authority so far as may be requisite for enabling such Board effectually to execute the purposes of this Act. "18. On the application of any conservancy authority, the Local Government Hoard may, by provisional order, invest such authority with all or any of the powers and duties of a Conservancy Board under this Act, and may alter the constitu- tion and mode of election of such authority, and may declare the provisions of this Act or any of them to be applicable (with or without any addition or modification) to such authority as if they were a Conservancy Board established under this Act, and so far as may be necessary for such purposes, may repeal or alter any local Act constituting or relating to such authority : Provided that no rating powers under this Act shall be con- ferred on such authority by a provisional order under this section, unless the due representation of owners and occupiers General View, is secured by such order. Any provisional order under this section may provide for the extension of the provisions of any local Act referred to therein beyond the districi within the limits of such Aet ." The two clauses which here follow contain important powers to exempt lowlands or midlands from rates in certain cases, and to order certain works in the nature of private improvements. " EXPENSES AND RATES OF BOARD. "24 — (1.) Where ii is represented to the Conservancy Board Powerto v ' L exempt from that any lowlands or midlands in their district, by reason of rates in special J ca efficient works for the protection n( such lands from floods having keen already executed, or of money having been bene- ficially expended on an outfall for the common benefit before the establishment of the Board, ought not to be rated to or to the full amount of the conservancy rates, the Board shall take into consideration such representation, and if they are of opinion that the same is well founded, and no special provision for exemption of such lands is contained in any order confirmed by Parliament ami in force within that district, they shall from time to time exempt such lands from the conservancy rates wholly or to such extent as. having regard to all the circum- stances of the ease, may appear to be just. "(2.) Any personwho deems himself aggrieved by thedecision of the Conservancy Board may. within one month after notice of such decision, address a memorial to the Local Government Board stating the grounds of his complaint, and shall serve a copy thereof on the Conservancy Board; the Loral Governmenl Board may, after local inquiry, make such order in the matter as to them may seem equitable, and such order shall he binding on the part its. •••J"). (1.) Where a Conservancy Board are of opinion that the special private . . . improvements. improvement of any work, or the construction oi any new work. would be of special benefit to any particular lands within their 26 Land Drainage and Sewers. district, and the expense thereof is not specially provided for by any order confirmed l>y Parliament in force within their district, they may make the execution of such improvement or new work conditional on the owners of those lauds consenting to bear the whole or such part of the expense of the execution, or of the execution and maintenance thereof, as, having re- gard to all the circumstances of the case, may appear to he equitable. 8 & o Vic. c.is. " (2.) Any person interested in any such lands, and being one of any class of persons enabled by the Lands Clauses Consolida- tion Act, 1845, to sell land under that Act, may consent to any arrangement under this section as if he were the absolute owner of such lands. 27&28Vic. " ($•) The improvement of any work, or the construction of any new work under this section, shall be deemed to be an improvement of land authorised by the Improvement of Land Act, 1864, and the provisions of that Act shall, with any necessary modifications, apply accordingly." Clause 39 of the Bill enables a municipal body to be consti- tuted a Conservancy Board; in the Bill of 1881 the population of the city or borough was to be 25,000, but the latest proposal has reduced that number to 10,000. Provisionsas to " 39. — (1.) The council of a municipal city or borough having, certain urban .. ,, ,, ,, ,. . . . „ i , • authorities. according to the census for the time being m iorce, a population of not less than 10,000 inhabitants, may, on their applica- tion, be constituted by provisional order made by the Local Government Board, after such local inquiry as required by this Act, a Conservancy Board for a district corresponding with the area of their municipal jurisdiction; provided that where any part of the boundary of such area is the centre line or other imaginary line passing along the course of a river, any part of such river which abuts on such boundary may, by the pro- visional order, be included in the district for which the council are constituted a Conservancy Board ; provided also that any lands belonging to the corporation of any such city or borough General View. 27 and abutting on its boundary may, by the provisional order, be included in such district. " (2.) The Local Government Board may also, on the applica- tion of any such council, declare by provisional order that any expenses incurred by them as such Conservancy Board shall he defrayed either wholly or partially out of the city fund or city rate, or borough fund or borough rate, instead of in the manner in this Act provided for defraying 1 the expenses of Conservancy Boards ; and may also, on the like application, make the like provision in any case where the area of any such city or borough as aforesaid is constituted a sub-district of a conservancy district under this Act, and placed under the charge of the council as the committee for such sub-district ; and may also, on the application of any such council for the time being empowered to ci-eate and issue consolidated stock, authorise any loan for the purposes of this Act to be raised by the creation and issue of such stock. " (3.) Accounts of all moneys received and expended under this Act by the council of any such city or borough shall, not- withstanding anything in this Act, be kept and audited in like manner as the other accounts of the council of such city or borough. "40. A Conservancy Board may from time to time contract Power to contract with with the sanitary authority of any sanitary district which is sanitary J . . . authority for wholly or partially included within the district of the Board, for execution of J l J works. the execution, or for the execution and maintenance, b}' such authority of any works which the Board are authorised to execute under this Act ; and any expenses incurred under this section by a sanitary authority shall be deemed to be expenses properly incurred by such authority in the execution of its duties under the Public Health Act, 187"), and shall be defrayed accordingly, and shall, in the case of a rural sanitary authority be charged as general expenses."' The following special provisions as to fen lands were inserted in the Bill by a Select Committee to which the Bill was referred 28 Land Drainage and Sewers. in lssl, and are of considerable interest to those districts in which any extensive syste f arterial drainage already exists. Special "41. Notwithstanding anything in this Act, if any lands situate provisions tor • • ° J lL ' ulaIllls - in the counties of Cambridge, Euntingdon, Lincoln, Norfolk, Northampton, Suffolk, the Isle of Ely, or the Liberty or Soke of Peterborough, and being at the passing of this Act taxable by any Commissioners for drainage purposes (hereinafter referred to as fen lands), are constituted or included in a conservancy district or sub-district, the Local Government Board may by the provisional order constituting- such district or sub-district, or by tiny subsequent provisional order to be confirmed by Parliament, declare that the aggregate amount or proportion of the expensesof t be Conservancy Board, or committee of such district or sub-district which is payable in respect of fen lands included therein, shall in lieu of being raised in manner provided by this Act (but subject to any exemption to which such land may be for the time being entitled under this Act) be defrayed from time to time by such Commissioners as afore- said out of any acreage tax or other rate which they are by any Act empowered to raise as such Commissioners, or be raised and defrayed by them in addition to and in like manner in all respects as anysuch acreage tax or rate as aforesaid. Contribution "42. "Where it can be shown to the satisfaction of the Local payable to >rfromfen Government Board that any work of improvement- proposed to be executed by a Conservancy Board either in the outfall or in the main channel leading thereto is for the general advantage of the drainage of the lands within the district of such Conservancy Board in common with the drainage of any fen lands, or where it can be shown in like manner that any like work proposed to be executed by any conservancy authority of fen lands is for such general advantage of the drainage of the lands within the district of such Conservancy Hoard, the Local Government Board may, by provisional order to be confirmed by Parliament, fix such a rate of contribution to be paid towards the expense of constructing and maintaining the work by the conservancy lands General View. 29 authority of the fen lands on the one band, or by such Cob vnnrv Board mi tl bher hand, in such manner and proportion as may appear to the Local Government Board after due inquiry, and with special regard to the money already expended by the conservancy authority of the fen lands for those purposes, to be just and reasonable. •• |:;. Where, on a petition praying for the constitution of a Further ........ , ,. (. n 11 r 1 provision for conservancy district, it is shown to the satisiaction oi the Loral drainage outfai Governmenl Board thai the outfall for the drainage of any fen lands would be inadequate to carry off, without material damage to such fen lands, the additional waters which mighl be sent down from the proposed district, the Local Government Board shall, in the event of the district being constituted, make provision in the order for the execution of the works that appear to them necessary for the improvement of the outfall, or of the main channel leading thereto before works calculated to cause such damage are undertaken by the Conservancy Hoard, and for the apportionment and recovery of the expenses of such improvement works from the Conservancy Hoard, and the conservancy authority or authorities of such fen lands, or any of them as to the Local Government Board may appear just." The principal clauses in the Rivers Conservancy Bill have been now noticed. This measure which, as was before observed, was first introduced in the year 1879, has now become familiar to all those who are in any way connected with this subject, and the intention of Parliament is openly expressed as to the way in which the reform of arterial drainage is to proceed. It remains to be seen whether a vigorous expression of provincial opinion will not do more to promote the passing of the Bill than the unsupported efforts of a Government Department. C:>m>iiixx(t>H* of Hewers. 31 CHAPTER II. COMMISSIONS OF SEWERS. I. — Origin of II. — Mode of appoint- ment- (it.) Before the statute 23 Henry VIII. c. 5 (6.) Under the statute 23 Henry VIII. c.o (c.) Under the Land Drainage Act, 1861,24 and 25 Vie. c 133 PAGE 31 33 33 35 36 III. — Qualification of Commissioners of Sewers - - 38 IV. — Duration of the Commission - 41 V.— Officers of the Commissioners - 42 VI. — Regulations as to meetings of Com- missioners and Courts of Sewers 49 Commissions of Sewers date from an early period of ^j",^ ™" English History (a). They were issued by the Sovereign for Sewers. (a) Callis, 25; " The Laws of Sewers," 1 ; Fitz.Nat. Brev.fol. 113, where is sot out an ancient Commission to inquire into the Parts of Holland, in Lincolnshire ; Hale, do Jur. .Mar. cap. ii. The word sewer baa been variously derived — by Callis as a diminutive of a river ; a sea wear: Sucre to issue, 4 Inst. 275 ; seoir and eau, Termes de la Ley. An old charier. temp. Edward 111., runs in this form: "Quod ipsi mariscnm prwdictum cum pertinentiis assewiare et secundum leges marisci uallis iruiludere et in cul- turam redigere — et mariscum sic assi unatwrn." It is well described as a " fresh water trench, or little river encompassed with banks both sides, to : )2 Land Drainag* and Sewers. the purpose of inquiring into the causes of inundations, and the necessity Eor surveying and repairing sea-banks and walls in order that measures mighl be taken to protect tin* land from the inroads of t be sea. The failure of the ancient works of drainage and defence constructed by the inhabitants of the country (a) led to the granting of Commissions by the Crown, the issue of which was the right of the Sovereign by the common law. Thus Sir Edward Cuke (6) says that the King, before the making of any Statute of Sewers, might grant Commissions for the surveying carry the water into the sea, ami thereby preserve the land from inunda- tion," Tomlin's Law Diet. And it is in this original meaning that tho word is used throughout tin's work, and nut, unless the contrary is expressed, in the modern signification of a drain or channel, both open and covered, to carry off sewage and feculeni drainage. The distinction between the original and modern meaning of the word is pointed out by Kindersley, V.-C, in Sutton v. Mayor, etc., of Norwich, 27 L. J. Ch. 730; "Originally the word meant a sea-wall, weir, dam, or defence against tides and inundations, or, according to others, a trench supported by banks for carrying fresh waters into the sea." In the case of the Poplar District Hoard v. Knight, 28 L. J. M. C. 37, we find the meaning extended to include the wall anil bank of the River Thames protecting its low lands from the floods, 18 & 19 Vic. c. 120, s. 204 ei seq. (n) Instances are to he seen in Foss-Dyko and Car-(or Corr) Dyke, in Lincolnshire; the old sea dykes or hanks bordering the estuary of the Wash, or the seaboard of Lincolnshire, now in part become roads, all of which are attributed to the Romans. Many banks or mounds of earth, still called " Roman banks," are to bo found in the vicinity of V7isbeach. Dugdale mentions a long causeway of gravel extending twenty-four miles across the fen from Denver in Norfolk, over the Great Wash, to Cheerk (now Creek), in the hamlet of March, thence to Eldernell, near Whittlesey, and so to Peterborough. Wells' "Laws of the Bedford Level," vol. i. p. GO. Among early works of drainage, we may notice the reclama- tion of Deeping Fen by Richard do Eulos, in the reign of Ifenry I. " Hist, of Lincolnshire," Allen, 1833; " Fens and Floods," by Padley, 1883. (n) Case of tho Isle of Ely, 10 Rep. 141a ; see also Callis 25; Hudson v. Tabor, 1 Q. B.D.225; 15 L. J. Q.B. 100; 2 Q. B.D.290; 46 L. J. Q. B. 403; Holt, C.J., is reported in those words in Vill of Shandrigamy v. Vill of Sholedam, 12 Mod. 331 ; Holt's Cases G23 ; — " Commission of Sowers to defend the kingdom against tho sea is very ancient, and even by special prescription in some cases ; but sewers for melioration of land arc by Act of Parliament." Commissions of Sewers. ■'>■', and repairing of walls, banks, and rivers and other defences, and where such sea-walls or other works were found defei order their repair, and make ordinances for their future main- tenance. This power, however, was limited to existing works and contributions from persons liable by prescript ion (a). In a recent case it was said by the Court that the power to erect a sea-wall or embankment as a protection against the sea, or from the influx of the tide in rivers, is one of those things which emanate from the prerogative of the Crown for the general safety of the public (b). The form of Commission in 6 Henry VI. e. 5. runs thus : " Nos pro eo quod ratione dignitatis nostre regie ad providendum salvationi regni nostri Anglie circumqudque sumus astricti;" so also the recital in 23 Henry VIII. c. 5. It is laid down by Fitzherbert (c) "The king, by the tenure and prerogative of his crown, was bound to see and foresee the safety of the realm as well against the sea as against the enemies thereof, so that it should be neither drowned nor wasted, and also to provide that his subjects pass by all ways through the kingdom with safety, and therefore, if the sea-walls be broken, or the sewers or gutters not scoured so as the fresh waters cannot have their courses, the king ought to grant a Commission to inquire thereof and to hear and determine their faults." This obligation cannot be enforced by the subjects against the Crown ((/), but when a private individual is the owner of the foreshore he will be restrained from interference with a natural barrier against the sea which the Crown is bound to protect (e). (a) Magna Carta, cc. 15, 16, 23. (b) Att.-Gen. r. Tomline, 12 Ch. D. 21 I ; 48 L. J. Ch. 493; 1 1 Ch. I). 58 ; 49 L.J. Ch. 377 ; per Cockburn, C. J., in Greenwich Board of Works . Mandslay, L. B. 5 Q. B. 397; 39 L. J. Q. 15. 205. (c) Nat. Brev. fol. 113; Heme, Beading <>n Sewers, 2: Dugdale on Embanking, o. 53; Henly v. .Mayor of Lyme. 5 Bing. 9] : 3 I!. >V A.I. 77; 1 Bing. N. C. 222. (d) Hudson v. Tabor, 2 Q. B. D. 290: If. I.. .1. Q. B. 163, per Lord Cole- ridge, C.J. 0) Att.-Gen. v. Tomline, 12 Ch. D. 211; 48 L. J. Ch. 493; 14 Ch. D. 5S : 49 L. J. Ch. 377. 34 Land Drainage and Sewers. Commissioners were thus appointed "by tlie Crown and were empowered to view t be (list rict, to inquire through whose default or neglect to repair the inundations were occasioned, and to assess those persons who were contributory. They were to see That the proper repairs were executed, to raise money by rates, and to distrain on those who refused to contribute their propor- tion of rate, or who neglected to execute their due repairs. Of these early Commissions, the most important was that issued by Henry III. for the draining of Romney Marsh, inas- much as the subsequent legislation of Henry VIII. takes the law and customs of Romney Marsh, in the county of Kent, as precedents to be followed (a). Early During the reigns of Henry VI., Edward IV., and Henry V 1 I ., Commissions. l . _ several statutes were passed tor appointing Commissions ot Sewers in all parts of the Kingdom (6). The law, however, received permanent shape in the great statute of Henry VIII., known as " The Bill of Sewers," which is in force at the present day, and upon which is founded the whole law relating to Com- missions of Sewers (c). (a) The Charter, and several other ordinances concerning Romney Marsh, are reviewed at length in the " Laws of Sewers," 13G-17G. The chief of this Commission was Sir Henry de Bathe. See Dugdale on Embanking, Chap. 3d. Coke, 4 Inst. 27G, writes, " from which laws not only other parts of Kent but all England receive light and direction." (b) See G Henry VJ. c. .~j, in which is set out a form of Commission issued to the parts of Lindsey in Lincolnshire. Sir Edw. Coke, in his report of the Isle of Ely Case, 10 .Rep. L41a, states the first statute to be !) Henry 111. (Magna Carta); these and subsequent Acts of Parliament were only confirmatory of the common law. See, per CockbnrnC. J., Hud- son r. Tabor, 1 Q. 13. D. at p. 233 ; 45 L. .1. Q. B. at p. 198. (c) This statute is the text for Callis' well-known reading on the Law of Sewers, delivered by liini as reader of Gray's Inn in 1G22. His treatise was described by Buller, J. as " one of the best performances on the sub- ject, and as good authority," Dore i\ Gray, '2 T. It. p. :iG5 ; Park, J. also in Duke of Newcastle v. Clark, 8 Taunt., p. 266, speaks of it as "that very learned reading which is much regarded as an authority in West- minster Hall," and in recent times, Cockbarn, C. .J., has referred to it as a work of considerable weighl and authority, R. v. Warton, 31 L. J. Q. B. ]>. 2^3. Callis was horn about 1574, and was a Commissioner of Sewers for his own county, Lincolnshire. He died in 1641. Heme delivered a Commissions of Sewers. 85 There are now six general Acts from which Commissioners of Sewers derive their powers, duties, and liabilities. These an — (1) 23 Hen. VIII. c. 5 (The Bill of Sewers), a.d. 1531. (2) 7 Anne, c. LO, a.d. 1708, relating to sale ol copyhold lands by Commissioners of Sewers. (3) 3 and 4 William IV. c. 22, a.d. 1833, a general Act amending tin- Law of Sewers. (4) 4 and 5 Vice. t5, a.d. 1841, as to levy of a Sewer Tax. (5) 12 and 13 Vic. c. 50, a.d. 1849, providing for a sub- division of districts, and the recovery of sewer rates and fines. (0) 24 and 25 Vic. c. 133; The Land Drainage Act, 1861, Part i., relating to Commissions of Sewers. In Part ii. of the Act are directions forforming Drainage Boards, to be invested with the powers possessed by Commissioners of Sew ers ( a). These Acts do not apply to Scotland or Ireland. The Irish Drainage Acts, of which the principal is 26 & 27 Vic. c. 88, amended by 28 & 29 Vic. c. 52, are spoken of as working exceedingly well by Mr. S. V. Roberts, in his evidence before the Select Committee of the House of Lords on Conservancy Boards (/;). Unfortunately a perusal of the Irish tj.xt-books and reports affords no assistance in applying the English Acts. The statute 23 Hen. VIII. c 5, having enumerated the various reasons for enactment, proceeds to vest the appointment Appointment of the Commissioners in the Lord Chancellor and the Lord m reading od the same statute in 1638, which be dedicated to the missionera of Sowers for the City of London. These readings were followed by an anonymous work on the same subject, entitled " The Laws of Sewers." The second edition was published in L732; it is chiefly useful as containing forms relating to Commissioners of Sewe: ! of which. as adapted to modern requirements, will be found set out in Appendix U. (a) These statutes will be found set out in Appendix A., summary of them will also be found ai p. -[<> oi A. (b) Questions 649-763. i) 2 36 Land Drainage and Sewers. Treasurer of England, and the i wo Chief Justices for the time being, or three of tliem, the Lord Chancellor being one (a). issue of The form of the Commission is contained in the second section Commission. of the 23 Hen. VIII. c. 5, and at the present day, when it lie- conies necessary to appoint new Commissioners to fill the vacan- Writ of Dedimus cies occurring in the Commission, the writ of Dedimus Potesta- Potettafem. tern, which issues from the Crown Office, is in the same language (h). Land Drainage The Land Drainage Act, 1861 (24 and 25 Vic. c. 133, s. 4), Act, 1861. further enables her Majesty, upon the recommendation of the Inclosure Commissioners, to issue Commissions of Sewers for new areas, but no alteration can be effected in the jurisdiction of any Commission without the consent of a special meeting of the Commissioners. By s. 60, "All powers given by this part of the Act (Part i., relating to Commissions of Sewers) shall be deemed to be in addition to and not in derogation of any other powers conferred on Commissioners of Sewers by Act of Parliament, law, or custom ; and Commissioners of Sewers may exercise such other powers in the same manner as if this (a) The Commissioners were named by the Lord Chancellor and the Commission issued by the Crown. By the kindness of the officials of the Crown Office (House of Lords), the authors were permitted to inspect the old forms relating to the grants of Commissions of Sewers ; accordingly certain forms obtained from that office will lie found in Appendix B. Among the orders in Chancery made by Lord Chancellor Bacon, as set out in Beanie's ( (rders in Chancery, is one relating to the appointment of Com- missioners of Sewers as follows : Ord. 94. Upon suit for the Commissioners of Sewers the names of those that are desired to be Commissioners are to he preferred to the Lord Chancellor in writing; then his lordship will send the name of some privy councillor, lieutenant of shire, justice of assize, being resident in the parts tor which the Commission is prayed, to consider of them that they be not put in for private respects; and upon the return of such opinion his lordship will further order for the Commission to pass. Ord. 95. No new Commission of sewards (sic) shall be granted while the first is in force, except it be upon discovery of abuse or fault in the first Commission, or otherwise upon some great or weighty ground. (b) See Appendix!}, where the writ is given ; and s. 14, Land Drainage ;lct, 1861, 24 and 25 Vic. c. 133. Commissions of Sewers. : '.7 Act bad not parsed : and notwithstanding anything in this Act contained, Commissions of Sewers may be issued by her Majesty in manner in which the same have been issued previously to the passing of tin's Act." The effect of this section is discussed in the course of this work, for the cumulative powers here given produce a consider- able variance in the working of different Commissions. On the one hand, certain Commissioners proceed entirely according to the machinery of the earlier Law, while others have adopted the provisions of tin's statute. By s. 2, the Act, "in so far as the same relates to Commissions of Sewers shall include any Commission of Sewers granted by her Majesty, and for the time being in force, whether such Commission is or is not granted in pursuance of this Act . . . and in so far as the same relates to Commissioners of Sewers, shall include Commissioners acting under any such Commission as aforesaid" (a ). The recommendation is obtained by a petition (b) to the Inclosure Petition to the Commissioners, signed by the proprietors (V) of one-tenth of the missioners. land within the area, showing the proposed extent of the Com- mission, and supported by such evidence as the Inclosure Com- missioners may require, together with security for costs. The Inclosure Commissioners then send down an inspector to make The Inspector. inquiries. If proprietors (d) of one-third of the land dissent, t hen the Inclosure Commissioners are to dismiss the petition ; but if there is no such dissent and the Inclosure Commissioners are in all respects satisfied, they are to convey their approval to her Majesty, and a Commission of Sewers is forthwith issued (e). issue of d Commission. («) fifee remarks by Sir. Thring in his Treatise on the Land Drainage Act, 1861, p. 22 ; and the Land Drainage Act, 1861, its provisions, working and results, by Mr. Richard B. Grantham, C.E., P.G.S., Inspector of Drain- ages under the Inclosure Commissioners, p. 11. (b) A form of pet it inn is given in Appendix B., post. (c) Proprietors are defined by ss. 6-10. (1, with a view to obtain a more general accept- ance throughout the country. 38 Land Drainage and Servers. QUALIFICATION OF COMMISSIONERS OF .SEWERS. There have been extensive alterations from time to time by statute of the qualification necessary for a Commissioner of Sewers. Qualification of Prior to 1833, the qualification by estate depended upon Commissioner. gg ^ V||f ^ ^ ^ ^ _ g ^ ^ ^^ yj ^ g _ ^ ^ Eliz. c. 9, ss. 4 and 7 (a); but by 3 and 4 Will. IV. c. 22, s. 1 (6), it is required that a Commissioner shall be — Estate. (1) The owner iii his own right, or in right of his wife, in actual possession or receipt for life of a freehold or copyhold estate, situate in the county in which he shall act as Commissioner, or in an adjoining county (c), of the yearly value of £100 ; or the heir apparent of such freehold or copyhold estate of the yearly value of £200 ; (2) Or a leaseholder (d) of an estate of 60 years, of £100 yearly value ; (3) Or a leaseholder of an estate of 21 years, of which 10 years are unexpired, of £200 yearly value ; (4) Or an agent of corporate bodies or Com m issioners whose estate is of 6300 yearly value (e). («) The provisions of these statutes, as to the qualification of Commissioners, arc repealed, (b) The statute recognises the three earlier A.cts in the preamble, and states that it was e\ pedien i to increase the amount of qualification. (r) By 25 Hen. VIII. C. 10. no one was bound to act in the Commission, unless dwelling in the same county. " Laws of Sewers.'' p. 1 .">. (d) Rut by 13 Eliz. c. it, s. 4i, no farmer, for years, of lands which may be chargeable by laws of the Commission, wherein he shall be named Commissioner, not having an estate of freehold within England of £40, shall sit or intermeddle with the execution of such Commission during the time that he continues farmer of such lands; lb. s. 7. xecus as to lands of which he is not farmer. ''Laws of Sewers,'' p. 17. (e) Owners of laru'e properties are frequently represented by their ao-ents, who discharge the various duties of Commissioners. The agent must, however, in the first instance, be appointed by writing (in case of corporation under seal), and must take an oath as to the sufficiency of his principal's property according to the form of oath in s. '3. Commissions of Srim-s. •';!» The Act further provides that the qualification may be qua Ituated either partly in each of the counties into which such Commission runs, or wholly in any one of such counties {n ). K.\ -officio Commissioners, such as mayors, hailifTs. &C, of Commi ... , . . , ex-offlcio, towns, are not required to quality independently or their qualification of . respective offices (s. .">), but must before acting- deliver a certificate, under the hand of the legal officer of the corporation in question, showing aut borityfor serving- on the Commission ( l>). The qualification must be possessed at the time of the sitting of the Commissioners, and the office is vacated if the qualifi- cation is parted with (c). A penalty is imposed by the :> and 4 Will. IV. C. 22, S. 4, of Penaltieafor not quali £100, upon any person acting without having qualified; but the section expressly saves the proceedings from being impeached, which have been done under the Commission by tfie unqualified person. The section also describes the manner of suing for the penalty. It is sufficient, without further proof, if the Commissioner has acted. 'Flie penalty is recoverable in the Superior Courts. Callis questions whether an indictment would also lie, and though thinking it would not, quotes Crofton's case (V) as an authority to the contrary. The 5th section of 23 Hen. VIII. c. •">. gives the form of oatli which each Commissioner must take before entering on his office. The oath is taken before the Lord Chancellor, or such persons as art' named in the writ of Dediwitts Potestatem for that purpose (<). («) Heme, in bis "Reading of Sewers," says that a feme and an infant may be a Commissioner of Sewers. Eerne, 1, 5; Callis. 250. (o) Among the Commissioners included ex-officio in a Commission of Sewers arc to In- found the following: Deans el' cathedrals, mayors, recorders, aldermen, burgesses, common councilmen, Btewards, town clerks, and justices of the peace el' cities and boroughs. (c) Callis, 2t:.. ((0 1 Mod. 34; Callis, 249. (e) Tho writ and oath are set out in Appendix li. The Clerk of Sewers is generally named in the writ, and the oath is taken before him. 1(1 Land Drainage and Sewers. The oath ns to qualification. As to office. It is further prescribed by the 3rd section of 3 and 4 Will. IV. c. 22, that the Commissioners («) qualified as above, before acting in execution of their office, shall take an oath as to their qualification by estate, in addition to the oath contained in the 23 Hen. VIII. c. 5, s. 5, which, the later Act preserves (b). By an Act for draining certain lands in Lincolnshire, it was provided that the lords of the manors of Bardney, Tupholme and Stixwould, or in their absence their respective agents, appointed in writing, should be Commissioners for executing the Act, but that no person should act as Commissioner until he had made and subscribed a declaration in the form given by the Act. None of the lords of the above manors ever subscribed the declaration contained in the Act, but they severally appointed their stewards to act for them, and their stewards subscribed the declaration and then acted as Commissioners. It was held that the stewards, being appointed by the lords, were themselves Commissioners, and that in appointing the stewards the lords did not act as Commissioners, and it was not, therefore, necessary for them to make the declaration (r). This decision was affirmed on appeal (//). To meet the case of persons refusing to take the oath ordained by the statute of 23 Hen. VIII. c. 5, the 25 Hen. VIII. C 10 was passed, which, by s. 2. enacted that any Commis- sioner refusing to be sworn, and that refusal returned into the Court of Chancery, should forfeit five marks for every such contempt, unless reasonable cause was shown to the Lord Chancellor. This statute also provides (s. 1) that no person shall be compelled to be sworn, or to sit in execution of any (a) Quakers are exempted upon making the statutory affirmation (s.2). (b) In the event of a Commissioner objecting to comply with this requirement, lie would be enabled tn avail himself of a declaration in lieu of oath, 31 and 32 Tie. c. 72, s. 12. The penalty, under 23 Hen. VI 11., c. 5, for a Commissioner sitting unsworn, is £40 (s. 10). (r) Ostler i\ Cooke, 18 L. J. Q. B. 185. (d) 22 L. J.Q. B. 71. Commissions of Servers. 41 Commission of Sowers, unless resident in tlie enmity. Tie- Metropolitan Sewers Act (11 & 12 Vie. e. L12, >. L45, now repealed), in adopting the statute 23 Hen. VIII. c. 5, especially excepted those provisions which applied to the oath and qualification of the Commissioners. As the 3 & 4 Will. IV. c. 22 had no retrospective operation, 3& vwm. iv. for some time after the passing of the Act it was necessary to retrospective, refer to the early statute-, already alluded to as to qualifica- tion, tic. For this purpose the learning of Callis ( a ) upon the various classes of estates, and tlie ecclesiastical and other offices (b) which gave a qualification, together with an account The old law. of those persons who were rendered incompetent by the Act of Hen. VIII., provides a discursive study, which finds further expression in the pages of " Woolrych on Sewers "(c). At the ■ present day it is surmised there are but few instances of Commissioners appointed before the year 1833. DURATION OF THE COMMISSION. A Commission of Sewers could be terminated by writ of supersedeas by 23 Hen. VIII. c. o, s. 10. and by this process some 800 Commissions of Sewers in the Metropolitan districts were swept away : hut now a Commission of Sewers is declared by the Land Drainage Act, 1861 (24 & 25 Vic. c. 133, Durati,. n <>f -. . , .... Commissions. s. 14), to continue until it is superseded by her Majesty. Before this enactment the duration of a Commission was confined to 10 years (d) ; and as a consequence, considerable expense was involved in renewing the Commissions. («) Callis, 233-25:3; 7 Com. Dig. Tit. Sewers, 339. (b) As to plea of privilege, in answer to an appointment as expenditor, see Arch, de Rochester's case, 1 Lev. 303 ; 1 Vent. 105 ; 1 Mod. 282 ; the reporter remarks that the reason for excusing the Archdeacon was that the land giving the qualification was in lease, ami t he obligation therefore the tenant's. (c) Ed. iii., 1804, pp. 30-42. (,1) 3 & 4 Will. IV. e. 1'2. s. 6. The Act of 23 Hen. VIII. c. 5. by s L6, continued Commissions of Sewers fur three years. This period was extended to five years by 3 & 4 Ed. VI. c. 8, and later, by 13 Eliz. c. 9, to 10 years. 42 Tjand Drainage and Sewers. Duration of laws and decrees. 13y 3 & 1 Will. IV. c. ~2. s. 7, the laws, acts, decrees, con- stitutions and ordinances made at a Court of Sewers remain in force until they are altered or repealed by a subsequent Court, (a) In early times these laws of sewers were co-extensive only with the particular Commission, unless they were engrossed and certified into the Court of Chancery, and the King's assent given. (I) OFFICERS OF THE COMMISSIONERS. Appointment. 23 Hen. VIII. c. 5. Klection of discretionary. The appointment of officers to carry out and conduct the business of the Commission is provided for by the statute 23 Hen. VIII. c. 5, which enumerates keepers, bailiffs, surveyors, collectors, expenditors and other officers, (c) The election of these officers, according to Callis, is in the discretion of the Commissioners. ( entitled to vote m the election of clerk lor each Commission ; and where such persons as i he mayor, recorder, aldermen, steward, (own clerk, sheriff, Common councihiicn and jusl ice-, of the peace of the various cities and boroughs in I In- county are so named in the Commission, each of such persons is entitled to vote individually. The mode of appointment is not prescribed by statute, and it may be said to be completed by election. The statutes do not provide for I lie qualification of these officers. Before, however, they enter upon their respective duties, the 3 * * WiU - rV- Commissioners are empowered, by 3 & 4 Will. IV. c. 22, s. 50, to take security from them (a). The security is given by a bond or Secnritv bonds to the clerk of the Commissioners (b) for the time Bond. (a) The 50i b section enumerates i reasurer, collector, receiver, expenditor and other ministers and officers. (6) The amount of security is a question for the discretion of the Commissioners. The bond is usually one with two sureties. For form of bond, see Appendix B., post. The effect of concealment from the surety of fraud committed by the officer is to discharge the surety. See Philipps V. Foxall. L. R. 7 Q. B. 66; 11 L. J. Q. B. 2915, and the eases there cited ; Burgess >'. Eve, L. R. 13 Eq. 450, 458; 41 L.J. Ch. ."15; Saunderson v. Aston, L. R. 8 Ex. 73 ; -±2 L. J. Ex. 64. So, also, upon the officer accepting an appointment to an office which is inconsistent and incompatible with the first, MaUing Union v. Graham, L. R. 5 C. P. 201 ; 39 L .1. C. P. 74 (assis- tant overseer and collector of poor rates) ■, but see Skillett v. Fletcher, L. R, 1 C. P. 217; 35 L. J. ('. P. 154; affirmed L. R. 2 C. P. 469; 36 1.. .1. ('. P. 206. As to what constitutes a new appointment, see Holland v. Lea, 23 L. J. Ex. 122. As to the effect of the duties of the office being changed, see Pybus v. Gibbs, 6 E. & B. 902, 913 ; 26 L. J. Q. B. 41. Where time is given to the officer, where the contract is altered between him and his principals, or where the officer and his principals deal together so as to affect the position of the surety, the surety is discharged. Croydon (Ins Co. v. Dickinson, 2 G. P. D. 46; 45 L. J. C. P. 869. As to where the contract is separable, ib. For a decision on a bond (Sewers), Saunders v. Taylor, 9 B. & C. 35. See further as to liabilities of sureties on a change of officers' duties, and in other events, Oswald i\ .Mayor of Berwick-on- Tweed, 5 II. L. Ca. 856; 25 L. J. Q. B. 383; Mayor of Clifton, &c. V. Silly. 26 L. J. Q. 15. 90; Frank v. Edwards, 8 Ex. 214 ; Evans >\ Bremidge, 25 L. J. Ch. L02. Note, too, the case of a treasurer's liability under circumstances where the clerk to guardians had been fraudulent, Halifax Union r. Wheelright, L, R. 10 Ex. 183: 44 L.J. Ex. 121. 44 Land Drainage and Sewers. being', who, in case of default being made, sues in bis own name, and is indemnified against all costs and charges in respect of the suits, which do not abate by reason of the death, resignation or removal of the clerk, or by the expiration of the Commission. Sec. si. The same person is not to be clerk and treasurer, and a similar The clerk and disqualification is imposed upon the clerk's partner or clerk treasurer. holding the office of treasurer or deputy treasurer, and vice vers . This provision is frequently found in local Acts ; e.g., the Public Health Act, 1875 (38 & 39 Vic. c. 55), s. 192. The object of the prohibition is obviously to prevent any misappli- cation of the Commissioners funds. It was held, under a local Act with similar provisions, that the corporation could not appoint the clerk's clerk to the office of assistant treasurer ; but where the appointment had been made, the bona fides of the officer in accepting it was a question for the jury, upon which depended the liability and the penalty (a). The treasurer cannot hold any other office of trust under the Commissioners. The penalty for a breach of this statutory provision is £100, for which any person, not a corporation (b) may sue; but an action brought by a common informer must be within the year of the offence (c). Remuneration The 13th section of the statute of "Jo Henry VIII. c. 5, fixed L tt L ,t, a daily payment of '2s. to be made to the clerk out of the rates. 23 Hen. VIII. * 1 ■ c. 5. Gratuities to officers. It may here be observed that it is advisable thai the terms of the bond be so drawn as to provide against it becoming inoperative by reason of any change in the tenure of the office, or in the amount of salary or mode in which it is paid, or by change of district: or increase or diminution of duties of office. Gratuities given to officers <>ut of rates have been lield illegal, Ex parte Mellish, 8 L. T. X. S. 47; R, v. Poor Law Board, 11 L. .J. M. C. 16; conf. R. v. Mayor of Norwich, 8 A. & E. 633. (a) Hawkins v. Newman, -4 M, & W. 613. (b) Guardians of St. Leonard's, &c, v. Franklin. 3 <'. P. D. 377; 47 L.J. C.P.727. (c) Dyer v. Best, L. R. 1 Ex. 152; 35 L. J. Ex. 105; and the recent case of Bradlaugh v. Clarke, S App, Ca. 35-4; 52 L. J. II. L. 505. Com/missions of Sewers. I"> and also gave fche Commissioners a general discretionary power of remunerating their oflicers from the same source (a). By s. 16 of 3 & 4 Will. I V. c. 22, a xrvy wide po"w er is given to :i a. i win. rv. tlie Commissioners, nol only of paying their clerks and other persons employed b] them out of the rates Bor their services, expenses, etc., hut also witnesses who may appear in snpporl of or in opposition to presentments, and generally for their professional services to the Commission (0). The 4 & 5 vr . , „ - . , . , . . , • i ,. 1 • , jurymen. Vic. c. 4o, s. /, provides that jurymen may he paid tor their loss of time and expenses in attending the Court. The removal of an officer appears to be a matter for the < lis- Removal of officer*. cretion of fche Commissioners. It was decided in a recent case (c) that a quo warranto information would be refused where, upon an applicant charging an illegal dismissal from office, it appeared that if reinstated lie would again be legally dismissed. It is sub- mitted that as the Clerk of Sewers holds at the pleasure of the Commissioners a quo warranto will not lie in accordance with a decision of the House of Lords (v man- damus directed to the Commissioners, or by an action against (he t reasurer or other officer, li was once held that no action could be brought against Commissioners under a local Act directly for salary, when t here was no contract under seal. Bogg l\ IVarse, 20 L. J. C. I'. 99 ; Addison v. .Mayor of Preston, 21 L.J.C. P.146. But the caseof Hall y. Taylor,27 L.J. Q. B.311 (following and approving Kendal] ■•. King, 17 C. I!. 183;25 L.J.C. P. L32), decided that the clerk of a Local Hoard could bring an action of debt against the Commissioners for the time being in of their clerk; in that ease the action was for services rendered to former Commissioners. The judgment, however, will be enforced by mandamus, see Kendall •. King, supra. (c) Ex parte Richards, 3 Q. B. D. 368; -17 L. J. Q. B. 198. (d) Barley v. Reg., 12 C. & P. 520; see in re Poz, 8 E. & B. 939; 27 L. J. Q. B. 151. 46 Land Drainage and Sewers. is only applicable to offices of a public nature and of substan- tial character, where the functions are not those of a deputy or servant holding ai the will and pleasure of others. Thus the Court of Queen's Bench, in the year 1805, decided (a) that the office of Registrar of the Bedford Level, and other offices which arc held at the will of that Corporation, being offices not affect- ing any franchise or other authority holder) under the Crown, could not be inquired into by quo warranto. There is an old report to the effect, that the dismissal from the office of clerk may be questioned in the Court of Queen's Bench upon a Certiorari, certiorari to remove the order discharging the officer, and that the Court will inquire into the title. The judges were at variance upon the question whether the issue of tin' writ was of right or discretionary, looking to the office of clerk as one affecting- the interests of the public (l>), and comparing it to that of clerk of the peace. The reporter of the ease seemed to think that the office of clerk to the Commissioners was held only at will. The collector, according to the form (r) which is found in the " Laws of Hewers, " holds during the will and pleasure of I he Commissioners. Officers dis- Where an officer has been discharged by the Commissioners, m^ssesri^of and he remains in possession of their property, whether houses, Commissioners ,.,.,. , , • i p i r • i, property, buildings, land, materials, &C, ami refuses to give up such 3 1; 1 W ''.',!; IV " property within two days after notice (d) of his being dis- charged and of his being required to give up the property, a (a) R. v. Corporation of the Bedford Level. 6 East, 356. (b) R. '•• Banks and Arthur, Porfcesc. 37-t : sul-nom Arthur v. Commis- sioners of Sewers for Yorkshire, S Mod. 33] ; Callis,291 ; 7 Com. Dig. tit. Sewers 351. The ground for dismissal was that the appointment of the Clerk had been made by surprise. (c) See Appendix B, post, form of appointment of a Collector of Sewers. (d) The notice may be left at Ids last place of abode. (As to what is the last place of abode, see the cases under the County Court Acts.) The -one process may be directed against the wife, widow or family, or representatives of any officer or servant who resists such orders of the Commissioners, ib. s. 49. Commissions of Servers. 47 warrant, under the hands and seals of six Commissioners, may be issued ordering a constable to expel him, and to take posses- Const sion of the property in question. It should be observed that constables serving within the jurisdiction of bhe Commissioners are bound to obey the orders, warrants, &C . of the Commissioners under the 22nd section of 3 & !■ Will. IV. C. 22, and under the 55th section they may be required to levy distress (a). It appears upon the authority of Callis that officers of sewers Punishment of 11 l , . officers. may he fined for neglect of their duties (l>) . He further lays it down that an expenditor or collector, on being required to account for moneys received, and refusing to do so, may be fined. But now, by the 43th section of 3 & 4 Will. IV. c. 22, 3&4wm.iv. J c. 22, 8. 18. officers of sewers are, when required by the Commissioners, to officersto give an account of their payments and to deliver up vouchers ' for the same, and it' there is a balance in hand to pay it over (c). In cases where an officer fails to comply with the Commis- Failure of officer sioners order to account and deliver up his vouchers, or, after to account. 14 days, does not produce them, and all books, papers, etc., in ec- his possession, the Court of Sewers, in a summary way, can order the amount due from him to be recovered by distress and Distress. sale of his goods and chattels (d). If the distress proves (a) Post, p. 125. (b) The expression used is. " misdemean himself in his office." A tithing-man refused to make a presentment and was lined; bo, too, a juryman who departed after lie was sworn, Callis, p. 175. He also quotes a case where a man refused to serve an office of sewers and was fined. (Post, Chap. VII. Fines.) (c) The Commissioners will require an officer taking more distress than is required, to return the overplus, Callis, 219, where he refers fco the charter of Romney Marsh in like case. See also, 7 Com. Dig - , tit. Sewers. 341. ((?) This is a continuing offence and not within Jervis' Act, 11 & L2 Vic. c. 43. See the decision in Mayer v. Earding, 17 1.. T. N. S. 140, upon a similar section in the Public Health Act of 1 s is. Under the Public Bi Act, 1875, s. 19G, the defaulting officer ma] mitted to gaol for a period not exceeding six calendar months, it being doubtful whether the justices have a discretion. See R. v. Justices of Norfolk, 4 B. & Ad. 238. It was held in R. v. Masters, L. R. 1 Q. B. 285 j 38 L. J. M. C. 73, r discharge in bankruptcy extinguished the balance of an account due from ts Land Drainage and Sewers. Imprisonment. Dyke-reeve. 12 & 13 Vic. C. 50, s. 3. Sec. 3. Qualification, s. 4. Without fee or reward, s. 5. insufficient, and lie continues wilfully to neglect to comply with the Commissioners orders, the Court of Sewers may commit him to gaol for any period not exceeding six calendar months. An officer, whoso name is specially mentioned in 12 and 13 Vir. c. 50, is l lie dyke reeve. The expression "dike (sic) reeve" occurs once in 3 & 4 Will. IV. c. 22, s. 15. Callis mentions the word "dyke (sic) reeve " incidentally at p. 110. The officer bearing this name is in many Commissions little more than collector of the rates. He is sometimes elected by vestry, and his election confirmed by the Court of Sewers. He is nearly always a paid officer, and in no way the same person designated by this Act. It may ho noted that in many of the old Commissions a marsh bailiff or dyke reeve is appointed whose duty it is to look after the drains, outfalls, &c. making his report to the Commissioners (a), and it has been suggested that the dyke reeves are the successors of the old standing juries in Somersetshire, which were discon- tinued in consequence of the decision in R. v. Somerset (b), declaring the institution of a standing jury to be irregular. Upon the formation of sub-districts, according to the statute, the Commissioners may appoint this officer. To qualify for the office lie must he an occupier of not less than ten acres of sewable lands situated in the district over which he acts as dyke reeve. He may be appointed over a sub-district created in virtue of this Act, or over a district previously constituted. He must serve without fee or reward, and the penalty for refusing to serve the office is any sum not exceeding £20. He may nominate a deputy. an overseer, and thai such balance was a debt only. An action for breach of dutv in failing to account :is town clerk, and to deliver up books, vouchers, &c, has been held to be against the defaulter, notwithstanding the summary remedy before justices of the peace provided by statute. Mayor of Lichfield v. Simpson, 8 Q. B. G5 ; see Callis, 175. (a) Land Drainage Act, 1861, by Richard 15. Grantham, C.E., P.G.S., p. 15. (b) 7 East, 71. Com missions of Sewers. 49 subject to the approval of the Commissioners, and be is em- Presentment • ''■> • M ' '''• •• '■'• powered also of rnmsell fco make a presentment, and to act in conjunction with the other officers of Sewers. REGULATIONS AS TO MEETINGS OF COMMIS- SIONERS AND COURTS OF SEWERS. The 3 & 4 Will. IV. c. 22, is the first statute which gives any directions as to the meetings of Commissioners and their Courts. The Court of Sewers is a Court of Record. Callis considers Court of the question at some length (a). The principal reasons for his opinion that it is a Court of Recoi'd being — (1) the statutes 12 Edw. IV. c. 7 and 23 Hen. VIII. c. 5 call the Commis- sioners justices, and no one can be a justice but in a court; (2) There are legal proceedings and process conducted in the Court of Court of Sewers ; (3) the Commission of Sewers is a member of the ancient Court of Oyer and Terminer; (4) the Commis- sioners have a clerk proper to themselves to register their laws; (5) writs of error have been brought to reverse judg- ments given in that Court. It was observed by Patteson, J., during a case (b) in which the liability of Commissioners of Sewers for trespass committed in distraining for a sewers rate was being questioned, that " Commissioners of Sewers, in issuing their warrant, stood in the situation of justices," and the learned judge referred to a case decided in 1818 (r), where Commissioners of Sewers for Pevensey Level brought an action against the Commissioners of Rye Harbour for breaking down a dam, and in which the power and authority of Commissioners of Sewers was much discussed. In the judgment of the Court, (a) Callis, 1G-1-1G6. (b) Pocock v. O'Shauneasy, GA. & E. 807, p. SOS; Commins v. Massam, March 201. (0 The Duke of Newcastle v. Clark, S Taunt. G02. £ 50 Land Drainage and Sewers. Dallas, C. J., (a) referred to the Sewers Court as "a Court of Record," and Park, .1. (b) in discussing the powers conferred mi Commissioners of Sewers by 23 Hen. VIII. c. 5, said : " Tho Commission itself undoubtedly gives many powers It constitutes the Commissioners a Court, and gives them every power incident to a Court of Oyer and Terminer," and Burrough, J., added (c) that "Commissioners of Sewers are persons holding a Court of Record." In speaking of ancient writs, a Commission of Sewers directed to the parts of Holland is classed by Fit/diorbert among writs of over and terminer (il) . Sir Edward Coke also, in enumerating Courts of Record, includes Courts of Oyer and Terminer and Courts of Sewers (e) ; and Page- Wood, V.-C, observes that Commissioners of Sewers nrnicd with their powers are constituted a Court of Record, and carry out the purposes of the Act (/). 3 & i wm. iv. By s. 44 (now repealed) the Court (1 appoint a meeting at such time or place as they shall think tit, ten clear (a) days notice being given l>\ advertisement in some paper of the county generally circulated in the district. Upon the Commissioners assembling, proclamation is made, and the Court opened by the crier, after which the clerk is sworn, who produces and reads the notice convening the meeting (h). The choice of a chairman is to be made by the majority of C hairman . Commissioners present (4 & 5 Vic. c. t5, s. 10); and if there is an equality of vol is, the person who is first on the Commission is to be chairman. Tn eases of an equal number of votes the chairman is to have a easting vote. Section 8 of 3 & 4 Will. IV. c. 22, enacts that no order or determination is to be valid unless the majority of Com- Majority. missioners present concur; all acts, orders and proceedings are to be done, made and executed by the majority present, the whole number present not being less than six. Tins number is Quorum. now reduced to three (Land Drainage Act, 1861, 24 & 25 Vic. c. 133, s. 15), except in those cases where improvements in existing works, or the construction of new works (defined in that Act J. are in question, in which case the quorum of six is necessary. The majority of the Commissioners present may, whatever Adjournment, their number, adjourn the meeting (4 A" 5 Vic. c. 45, s. 12) (c). IF, however, a sufficient number of Commissioners have not met at the place appointed, and the Court or meeting has not been duly adjourned, one or more of the Commissioners may by writing appoint another meeting. Ten clear days (y Draiiiage Boards rj i & 25 Vie. e. L38, s. 67)i (6) Ante, j>. 83. Land Drainage and 8ew< rs. The heads of jurisdiction. conferred bythe legislature^ in order to appreciate the extent of jurisdiction which is defined by thai Acl (a). Cases may also arise "which are not provided for by the Land Drainage AH, 1861, and 1 here hi it reference must be made to the previous Acts. The jurisdiction of Commissioners of Sewers has always been divided into two main branches, and M is expedient to keep them separate. Their powers are divided under the following heads : — Existing works. Maintenance and improvement of existing- works. Construction of new works. It was held, as will be seen later on (6), that the statute 23 Hen. VTll. c. 5, did not confer on Commissioners of Sewers the power to execute new works. That statute, after drawing attention to the damage occasioned by the sea and land water, to the impediments in rivers which obstructed their flow and interrupted the navigation, and to the want of repairs of walls, ditches, banks, sewers, &c, proceeded to authorise the Commissioners to survey and repair the same, and to remove any impediments (c). 23 Hon. VIII. C. 5. Enumeral ion of works. (a) By the Rivers Conservancy l!ill of 1883, it was proposed bo invest Commissioners of Sewers with the powers and duties of a Conservancy Board if occasion required. (6) Post, p. 59. (c) The following works are specified in this statute : Works to be Surveyed and Repaired. Walls. (1) Banks. (2) Caleies. (3) Bridges. (!) Si reams. ( rutters. I )ii ohes. Sewers. ( •". ) <; s. (6) Trenches. Works described ;i - I mpediments. Mills. Si reams. Bridges. Milldams. Ploodgatei . Ponds. 1 ..,.!■.. 1 jl X'KS. EebbingWc ares (7) Wears. Eecks. (8) Eedels. (9) Fishgarths. (10) Gores. (11) Powers and Duties of Commissioners of Sewers. 55 The statute 3 and 4 Will. CV. c. 22 extended the jurisdic-3« iwm.rv. .. c. --. t ion of Commissioners of Sewers, and set a1 resl some points <»L difficulty on litis head which had been raised under the preceding statute (23 Eenry VIII. c. 5). After mentioning The only other works specifically mentioned in subsequent legislation affecting sewers are to be found in 3 & 4 Will. IV. c. 22, s. 19. They are tunnels, culverts, sluices, tumbling bays. The definition of several of these terms in relation to the law of Sewers has been discussed by various authors on the subject, Callis on Sewers, p. 63, ; Board of Works for Greenwich v. Maudslay, L. K. 5 Q. B. 397; 39 L. J. Q. B. 205. See the approval given to this distinction between a wall and a bank, by Park, J., ill Duke o Newcastle v. Clark, 8 Taunt. 602, p. 627. (3) Calcies. — Oalceys, i.e. causeways. The jurisdiction of Commis- sioners of Sewers is confined to those causeway.-, within their distrie! which were carried over the fen and marsh lands. Callis is of i his opinion, and he gives as instances those on Barston Bank and Southbj Bank, and adds, that "the Law does not extend to calceys Lying in towns and villages in high, uplandish countries," p. t>0. Dugdale, in his " History of Embanking/' mentions a " causey " extending over the plain of Sedgemoor, from Somerset to Bridgwater, eight miles; see also "Laws of Sewers." 2(i. Most of these causeways were no doubt built for the purpose of affording passage over the fens and marshes when in their original undrained state. Such a causeway was made by William the Conqueror, at Aldreth. in Cambridgeshire, in order to attack the camp of refuge formed in Eereward the Saxon on the Isle of Ely. The authority of Commissioners of Sewers does not extend to causeways erected before the reign of Edward I. ; case of Chester Mills, L0 Coke, L38a, sub-now Case of Sewers, 13 Coke :;*>; Crabb's Dig., tit- Sewers. (1) Bridges- According to Callis, the jurisdiction of the Commissioners over bridges is confined to those n\ bich are erected o\ er sewers, &c in the fen and marsh lands. Callis, 87; " Laws of Sewers," 20; see also Sapoots v. Grantham, Callis. 89. 56 Land l)raina amends the law touching these points. Section 1(3, sub-sec. 3, new works. («) Mr. Thring considers this power to be limited to the construction of new works for maritime purposes only ; but ii is difficuU to appreciate what moaning ho can then giye to the words " for draining superfluous fresh water." (b) Supra, 10 Rep. 141a. (c) This point is dealt with in the next chapter. (d) 3 & 4 Will. IT. c. 22, s. 24. C2 Land Drainage and S> irers. extends the powers of Commissioners of Sewers to" Making any new watercourse (it), or new outfall lor water, or erecting any new defence against water, to erecting any machinery required for the drainage . . . warping (6) or irrigation of the area within the limits of their jurisdiction hereinafter referred to under the expression 'The construction of new s. Proviso. The section then continues with a proviso, " That no work shall be deemed to be a new work that is in substitution Eor an old work, in cases where such old work is so much oui of repair, or so inefficient as to make it expedient to construct a new work in place thereof" (c). Thus the first point above mentioned is dealt with by this statute. Presentment by The second, as to presentment by jury, is met by s. 33 of the Act, -which enables the Commissioners to dispense with such presentment (d). Land Drainage The third, as to consent of owners and occupiers, is also Act, IhGl, ' _ * new works. affected by the Act, and requires consideration. The 21st section of the Act enables the Commissioners to purchase land for new works. First, they may do this if the owners along the line of projected "works consent to sell. Secondly, if the owners are unwilling to sell, then a provisional Purchase of order must be obtained from the Inclosure Commissioners. which must receive the sanction of Parliament (e). (a) Watercourse, by s. 3, is defined to include all rivers, streams, drains, sewers and passages through which water flows. (h) The subject of warping has been exhaustively treated in an able paper read by Mr. T. C. Smith-AVoolley, at the Surveyor's Institute, 10th December, 1877- (c) In the ease of an old work, such as a sluice, outfall or cut, con- sidered inefficient, and a new work constructed some distance off in order to relieve it, a difficult question mighl arise. According to this proviso, t he work constructed is not a new work, and it could not. without ^training the language, be termed an improvement of an existing work. (il) See past, Presentment by Jury. (e) For a more detailed account of this, sec pout, Purchase of Land. Potvers and Duties of Commissioners of Sewers. <">:> By s. 29, Before they undertake the construction of any new £1,000 expendi- works involving an expenditure of CI, "00, notices must be given, and the dissent of the proprietors (<>) of half of the i" sentoi i ■ • • prop] area ot laud to be rated according to the notices issued prevents the Commissioners proceeding (b). Tims, subject to these restrictions, the Act enables Commis- sioners of Sewers to erect new works, to purchase land for the purpose, and requires a greater opposition in the district to stay their construction than did the statute of Will. IV. Where Commissions or drainage districts are not coterminous Arrangement* with adjoining or co-extensive, e.g., with the rivers or streams upon which the areas. works are proposed to be undertaken (c), it may be convenient for Commissioners to avail themselves of the power given by s. 59 of the Land Drainage Act, 1861, which enables different bodies of Commissioners to execute works in each other's districts, and is as follows: — "Commissioners of Sewers ha vino- jurisdiction within any area may, with the consent of the Commissioners having jurisdiction within an adjoining- area, Land , . . . Drainage Act, do and execute m such adjoining area any works that such 1861, s. 59. first-mentioned Commissioners might do and execute within their own area, upon such terms as to payment or otherwise as may be agreed upon between the said bodies of Commissioners ; and any sums agreed to be paid by any body of Commissioners, in pursuance of this section, shall be payable out of the rates leviable by such Commissioners in the same manner as if the expenses had been incurred within their own area; and the (a) Proprietors arc defined in s. G. (U) The procedure- is the same for improvement of existing works when expenditure exceeds £1,000, s. 20. (c) See an interesting case in 1842, in which the Drainage Commis- sioners of Bourn North Fen and Dyke Fen wide I a drain under the control of the Black Sluice Commissioners; the deoision turned upon the construction of a private Act of Parliament, and therefore dues no more than illustrate the state of circumstances which might lead to an applica- tion of the section qnoted above. Smith v. Bell, U> M. & W. :{7S ; 2 Kail. Ca. S77. 64 Land Drainage and Sewers. powers hereby given to one body of Commissioners in relation to another body of Commissioners may be exercised by them in relation to any drainage board constituted under tliis Act, or by anj- such drainage board in relation to any other drainage board." A similar power authorising conservancy boards, and also conservancy authorities of adjoining districts, to combine for execution of works, was proposed in the Rivers Conservancy Bill, 1883. General powers Having: reviewed the subject of the maintenance and im- ;iiid duties. ° J provement of existing and the construction of new works, the next step is a consideration of some of the general powers and duties of Commissioners of Sewers in respect of the performance of the ordinary objects of the Commission. REMOVAL OF OBSTRUCTIONS. Removal of And first as to the removal of obstructions. Commissioners obstructions. . • • i i i p 1 of Sewers can only remove those which exist without lawtul authority, i.e., without custom or prescription, but they have power to order the removal of any increase, e.g., to an immemorial weir in a navigable river (a). Thus, in an old Ancient weirs, case cited by Callis, it appeared that the plaintiff was possessed of an ancient weir in the river Wye. The Commissioners of Sewers caused a jury to be impanelled and sworn, who found a verdict that the weir was "excessive high and hurtful, and an impediment to the common passage of boats, and an annoyance to the whole county." The Commissioners thereupon ordered (a) Inhabitants dc Oldberry v. Stafford, 1 Sid. 145 ; the caso of Chester Mills, 10 Coke, 138 a and sub-nom Case of Sewers, 13 Coke, 135. The well-known passage in Magna Carta : " nmnes lajdelli lu'jiuninitin- dc cctero penitus per Tamesiam ct Medwayam et per latum Anglia/m nisi per costeram maris " lias been decided to refer to navigable rivers. Leconfield v. Lonsdale, L. R. 5 C. P. 657; 39 L. J. C. P. 305, which is confirmatory of tho passage in Callis, p. 258, 251). Coke, 2 Inst. p. 38 (citing a passage from Glanville), and Hale, Dc Jure Maris, cc. 3 & 5. Powers and Duties of Commissioners of Sewers. 65 the weir fco be removed, and directed their warrant to the defendants ordering them to abate it, which was done. On removiil of the cause into the Court of the Duchy of Lancaster at Westminster, the Judges (a) were of opinion that the weir, being an ancient weir, ought not to have been overthrown by the decree of the Commissioners, and that the verdict of the jurors was defective, because, though they found the weir to he bigh and enhanced, they did not present, in quanto nor in parte, the weir was enhanced above the ancient assize (/<). Commissioners of Sewers can also compel the person who has Compelling created an impediment to remove it (c). It is thus said byremore Callis, that " if a stranger, of his malice or wrong, doth pitch down piles or set down stakes in the rivers and streams, he is to be fined or amerced for this offence, as the case shall require, and he is to be ordered to remove the nuisance at his own costs and charges;" and the author goes on to say, '"if it cannot be found out who did the nuisance, then the Commissioners of Sewers are to order those to remove that annoyance which in all likelihood arc to sustain most damage thereby" (//). The latter alternative Avas resorted to in an old case in the Stakes in the , , , . . , viver Lea. year books, where certain persons were presented for pitching stakes in the river Lea, and it was awarded that those persons should reform the same; and because some of the persons named could not be discovered who had done another part of the nuisance, it was ordered that the sheriff should abate that part of the nuisance, taking to his assistance those persons who had grounds next adjoining (V). If an impediment be a nuisance, Commissioners of Sewers ought not to preserve the impediment and try to remedy the (a) Sir Humphrey May, Sir John Denham, sir Tims. Chamberlain, Sir Ed. Mosley. (b) Hall r. .Mason. 19 .lac. 1 ; Callis, 262; see /»■>'. p. 85. Survey and Jury Procedure. (c) They may also fine, see post, p. 160, Fines; seepost, p. ls.'i. Indictment. (-. Sparrow, 19 Vesey, jun., 440; Coop. Ch. Ca. 305. (r) Per Bayley, .1., in E. v. Montague, 1 B. & C. 598, at p. 603, Powers mill Duties of Commissioners of Sewers. 69 end to, inter alia, by Commissioners of Sewers, if there wereany appointed for the district, and they femnd that ii would be Eor the benefit of the level. Hut tliis dictum is obiter. THE FORESHORE. The prima" facie title to the foreshore (a) everywhere is in the i Crown (b), but by ancient grant, charter, or prescription, it may vest in the subject. It has been decided that the fore- shore is within the jurisdiction of the Commissioners of Sewers, within juris- diction of Coin- In a case where sand had been taken away on the coast nrissi of Lincolnshire, a conviction was obtained against an indi- vidual for so doing. Upon motion of certiorari to quash the con- viction, the Court were clearly of opinion in favour of the Com- missioners title, and refused the rule (c). The rights of a lord of the manor, who claimed to be owner of the foreshore, to remove Removal oi natural barrier. a natural barrier of shingle, with the result of causing injury to the adjoining property, were considered in a recent case in the Chancery Division. It was there held that it was the duty of (a) For the precise limits to be given to this expression, see Att.-Gen. v. Chambers, 4 De G. M. ami (i. 206. By 29 & 30 Vic. c. 62, the rights and interests of the Crown in the shore and bed of the sea, and of every chan- nel; creek, bay, estuary, and of every navigable river in the Tinted King- dom, as far up the same as the tide Hows (called in the Act the foreshore), are transferred from the Commissioners of Woods to the Board of Trade. The soil of the River Thames is vested by Act of Parliament in the Con- servators. By the Rivers Conservancy Bill, 1883, Conservancy Hoards were to obtain the consent of the Board of Trade to the execution of any work below high-water mark in a tidal river. As to the right of the Crown to the foreshore, and generally as to ports, harbours, havens, sic Hale, de fort. Mar., and his Treatise on Foreshore, p. 283 ; Hall on the Seashore; Jerwood's Dissertation on the right to the Sea Shore and to the Soil and Beds of Tidal Harbours and Navigable Rivers, pp. 43, 44: Selden, Mar. Clausum. Bracton, lib. Chap. v. s. 7; Craig Jus. Feud. lib. L. Dig. to. B. 17; Shep- herd in his " Grand Abridgment of the Common and Statute Law o England," cited by Jerwood. (b) Mayor of Penryu v. Holm, 2 Ex. D. 328 ; 40 L. J. Ex. 506. (c) Ex parte Stevenson, 47 L. T. J. 8. The case is not reported else- where. /•> Li ml UruiiMue uitd IS&wers. the Crown to protect tin' realm from the inroads of the sea by maintaining the natural barriers against it, or by raising artificial barriers, and therefore, that though that was a duty which, as against the Clown, could not bo enforced, yet against the subject who took the foreshore theoretically from the Crown, it could, and an injunction was accordingly issued (a). Gradual derelic- The property in land formed bv the gradual recession of the sea, which is called derelict, belongs to the subject ib), as also AUuv " ,n - does land gradually and imperceptibly (c) formed by alluvion, or the projection of ooze, soil, sand or other matter by the sea ('/). But where land becomes derelict by some sudden retreat of the sea, leaving a large tract of its bottom uncovered, the property vests in the Crown (e). It is not necessary for the Sudden fierrlic- action of the sea to be in a sense an extraordinary withdrawal, urn. it is sufficient if there is evidence that the quantity and limits of the land cannot be mistaken by ordinary observation (/). .1 1 ' UISMCTIONS EXCEPTED. Navigable rivers, canals, ports and harbours, are at the present Private Wt- ' L l exempted. ( \ n y generally placed by private Acts under the management of conservators, Commissioners or trustees. These Acts are expressly excepted from the jui'isdiction of Commissioners of (n) Attorney-General v. Tomline, 12 Cli. D. 214 ; 48 L. J. Ch. 593 ; 14 Ch. IX 58; 49 L. .J. Ch. 377. (b) Callis, 00; 2 Roll. Abr. 168; Com. Dig. Prerog. vol. iv. 75; Hull on i In- Sea Shore, p. 108-135. (c) i.e., imperceptible in progress and not in result. II. r. Lord Yar- boi'ough, infra. (. s. R neyMaran, 15; and 24 & 25 Vic. c. 133, s. 57 ( Land Drainage Act, 18ol). Sandwich _ _ Haven, I There are also other special exemptions of local districts, such Umdonand 1 Metropolitan as Koninev Marsh, Bedford Level, the Xene Outfall, Sandwich ■ Haven, City of London and Metropolitan Sewers (now trans- ferred to .Metropolitan Board of Works by 18 & 19 Vic. C. 120, s. 68). (See 3 & 4 Will. 4, c 22, as. -JO, 61, 62 ; 4 & 5 Vic. c fe5, ss. L5, L6, 17. 18.) By 24 & 'Jo Vic. c. 133, s. 54, the general rights of persons Land d . ' . . , Art. 1861, -'I & acting Tinder local or private Acts relating- to sewers, canals, 25 Vic. c. 133. waterworks, or wharfingers, are preserved, and cannot be inter- fered with without the written consent of the authorities in ipiest ion (a ). An unauthorised interference would be restrainable by in- junction (6), or be actionable at the suit of the party injured (< ). Notwithstanding 1 consent given by the authorities above mentioned, the Commissioners Avill not be protected from the eon- sequences arising from any public nuisance they may commii in the course of executing works (i oewevs. 73 t liri't'-l'diu-t lis in value of the lands proposed to be charged musl In' certified to fche Commissioners (nol less than six) in wril big ; and further, no owner of land is chargeable to a greater extenl Limitof D _ chargeability. than one-fifth of fche value of his lands at the time the money is borrowed. The decree of fche Commissioners authorising fche loan must Timefor re-payment, state the time within ■which the amount borrowed will be paid off. The period Eor repayment is by the Act limited bo 14 years. The Court of Sewers (s. 42) may. l>v a certificate tinder theGrantof v '•''•' _ securities. bands and seals of six Commissioners, grant securities to the persons advancing the money. The certificate must show (1) the amount borrowed and the Certificate. rate of interest: (2) the time for repayment: (3) a general description of the particular lands, or if by assessment, the district or level within which are situated the lands charged. The 43rd section enables the persons advancing the money to Transfers of _ _ securities, the Commissioners to effect transfers (a) of their rights to the money secured to them as above, by indorsement on the back of Indorsement of ^ ^ certificate. the security in the presence of one witness. This transfer must be produced to the Commissioners clerk, and registered by him, before any payment of principal or interest in virtue of the transfer is made (b). It has been seen for what purposes money borrowed under Borrowing powers under this Act may be applied, but inasmuch as there are other 4 & 5 Vic. c. 46. contingent expenses to which the Commissioners may be put, 4 & 5 Vic. c. 45, by s. 4, allows the Commissioners to borrow money for the purposes there mentioned (c). A most (a) The 12nd section gives fche form uf security, and the 43rd the form of transfer. See Appendix 15. posf. (6) These securities once issued cannot be impeached in the bands of bond fide holders, and this is so even where they have been improperly given; sec«£, if the loan is without legal sanction. Se< Webb o. Commissioners of Heme Bay. L. R. 5 g. J?. tU2 ; 39 L. J. Q. 15. 221. Under fche Local Loans Act, 1875 (see Rivers Conservancy Bill, 1883), local securities can be given with an indefeasible title. ('■) e.g. Charges incurred in surveying and valuing lands, in making 74 Land Drainage and Sewers. important distinction, however, exists under this later Act. By the 3 & 4 Will. IV. c. 2:!, the security the Commissioners Securityof give is the land, hut by this Act (s. 4) they are enabled to Elates, . charge the general sewers rates, orany of them raised tinder the Act. with the repayment of the sum borrowed, witli interest (a). Further Two further distinctions to he noticed arc, ( 1 ) that the time for ilistiuctioi 3. .... repayment of the sum borrowed and interest is limited to seven years: (2) that the certificates of securities, which the Com- missioners have power to issue (s. .">) must specify the particular general sewers rate which is charged. The provisions in the two Acts as to the decree under the hands or seals of at least six Commissioners, guaranteeing' the repayment, as to the transfer of securities, and the form of transfer, with other incidents, are in the same terms, and it is therefore not necessary to make further reference to them. Land Drainage The 40th section til' the Land Drainage Act, 1861, again Act, 1861. . .... " extends the borrowing powers of the Commissioners. The Commissioners have by it a general power of mortgaging the rates for the purpose of defraying any costs or charges autho- rised by any Act of Parliament, law or custom, the exercise of the power being subject to two regulations : — Sanctionof (1) The sanction of the Inclosure Commissioners must first enclosure Commissioners, pg had. (2) Tin; repayment of the amount borrowed must be made within 30 years, or within such shorter period as the Enclosure Commissioners approve. [n cases where the Commissioners have borrowed money to be applied only for the benefit of part of a district within the Commission, the repayment is to be made out of the rates of that district onlv which is benefited. collecting and expending rates, in hearing objections, or in carrying on any litigation connected with the Commission, and generally in working tlir Commission, (ib. s. 1.) (a) The form of security is given in the ."ith section, and of the transfer in the 6tb, See Appendix B. post. Powers mul Duties "/ (Jom/nvissionefs <>i Sewers. 7> The application to the Enclosure Commissioners Eor their approval of the proposed loan should carefully specify the nature of the works for which the money is required ; it should state, in the event of the works proposed being improvements or new works is. ir>), that the requisite notices, under s. 29, have been given. The application should be made under the signature of the quorum of the Commission or Drainage Board, or in case of the latter, under the seal. It should state the time within which the proposed loan will be paid off; information should be given as to the incidents of the rating, and whether the charge will be upon the owners or occupiers. It is advisable, where possible, to forward any report of an engineer as to the works in question, together with a tracing. In the Appendix will be found the form of reply from the Enclosure Commis- sioners to a requisition for a loan, which the authors have obtained through the courtesy of the officials of that depart- ment. When the Inclosure Commissioners arc satisfied as to these preliminaries, they make their order. The 41st section proceeds to incorporate certain clauses (a) TheCommis- ._. . . sioners Clarifies of the Commissioners Clauses Act (10 ct 11 yic. c. 16), which A.ct,1847. relate to mortgages created by the Commissioners. These clauses refer to the form of mortgage, the register (/<). the transfer, the payment of interest, repayment of the principal, mode and time of paying off the mortgage, arrears of interest, etc., and have been characterised as a ready and inexpensive method of managing the mutual relations of mortgagor and mortgagee (V). (a) Sections 75-88. See the An in the Appendix A. (b) The omission to register will not, it seems, invalidate the creditor's claim, though possibly until registration or tin- tender of the deed for that purpose, he would not !»• able to obtain payment of principal or interest. (c) The mortgagees have no priority one over another according do tlie dates of their mortgages, hut are entitled equally to the proportion of the rates pledged as security. 7<> Lund Drainage and Sewers. PURCHASE OF LAND. :|\ 1 wiii.iv.c-. The statute :> & 4 Will. IV. c. 22 confers upon Com- missioners of Sewers for tlie first time the power of acquiring land for certain purposes, which, as will be seen hereafter, is further dealt with in the Land Drainage Act, L8<>1. It must be carefully observed, however, for what purposes the Act Sec.24. authorises land purchases. Section 24 enumerates them, "widening, deepening, strengthening, maintaining, repairing, and amending any rivers, streams, watercourses, walls, banks, and other works, aids and defences, within the jurisdiction of Limitation of the Com inissii huts." Thus the Commissioners are restricted powers. in purchasing land to the extent of maintaining and improving existing works, and accordingly it may be here noted that, although this statute gives the power of executing new works, yet for the construction of such new works the Commissioners cannot purchase an acre of land. It is important to bear this distinction in mind. Purchase of The 24th section enables owners and other persons interested land. , _ x in lands (a) to agree with the Commissioners for the purchase Conveyance. of them, and provides for the conveyance of them to the Com- missioners. Section 25 gives the form of conveyance; s. 26 deals with persons neglecting or refusing to treat, in which case the Commissioners may issue a warrant (b), directing {a) Although the statutes do not expressly mention copyholds, yet it is submitted that the Commissioners have power to purchase them. In a case, under a private Drainage Act, where a vendor had kept back from the Commissioners the fact that his land was copyhold, the Court would not permit the objection to he taken to the power of the Commis- sioners to purchase it. Keg. y. S. Holland Drainage, 8 A. & E. 129. (6) The case of Ostler v. Cooke, 18 L. J. Q. B. 18(5, a decision in 1849 upon a clause in a private Act of Parliament of like import, shows that the warrant and inquisition need not refer to the notice, or give any par- ticulars of the land required, in order to give sheriff and jury jurisdiction to inquire into the land in question. The ease was affirmed in error, 22 L. J. Q. B. 71. .See also Taylor y. Clemson, 11 CI. and F. 610. The Court, however, intimated in the former case that it was more convenient to particularise the land. See also Reg. v. S. Holland Drainage, 8 A. & E. 429. Powers and Duties of Commissioners of Servers. 77 the sheriff bo impanel a jury to appear al Quarter Sessions. J<" ■ Witnesses may then be examined, the jury may be challenged, may view, if necessary, the laud in question, may give damages accordingly, and their verdict is final (")■ The justices present give judgment in accordance with the verdict, and Judgment. the Commissioners are empowered, by S. '27. to impose a fine for any default made l>\ the sheriff or jury. All agree- Agreements , Bled. incuts, contracts, verdicts, judgments. &c, are filed with the (dork of sewers, who allows inspection and copies of I be same to he taken on payment of certain fees (s. 28). The 30th section points out the fund from which purchase and compensation money is raised. Sections 31, 32 and 33, provide for the case of persons under certain disabilities, and corporations, and Vendors under 1 disabilities. indicate the investment of the money payable to them. AN here there is a difficulty aboul the title to the money, the party in Title. possession is deemed entitled, unless the Court of Exchequer is satisfied to the contrary (s. 34). In the event of compensation money being refused, or a title to the land not being made. the money is paid into the Bank of England, subject to the order of the Court of Exchequer (s. 35). Under s. 31, Purchase of other lands by provision is made for the investment of the purchase-money Commissioners. in the purchase of other lands where the vendors arc under any disabilities noticed in the section to be settled to the like uses; and the 36th section enables the Court of Exchequer to Expenses. direct the payment of the Commissioners expenses incurred for such purposes. If the Commissioners propose to take any houses, gardens, parks, &C, of an ornamental description, Sale of gardens, parks, &c. they must obtain, in writing, the consent of the owner (s. 37). The 38th section vests the land purchased in the Com- missioners, and the two following sections provide For the sale of superfluous lands. Having briefly remarked upon the various sections which treat (o) Jn the I'MMii of the jury awarding mere money than the Com- missionera have offered, the Commissioners bear the cost of the pro- ceedings; in the contrary event, the vendor pays thera (s. 29). 78 Land Drainage and Sewers, of land purchases under :i & I Will. IV. c. 22, the next step Land Drainage is to consider the provisions of the Land Drainage Act, 1861. Act, 1861. , Purcnaseof This Act. it will be remembered, by s. lb, sub-sec. 3, gives powers tn the Commissioners in the matter of new works, For new works . which had, under the 3 &4 Will. I\ . c. 22, been more narrowly defined. Asa complement to this increase of jurisdiction, the Commissioners are authorised, for the executi »f new works (s. 21), to purchase land: and as these works may now lie of an extensive character, involving a large expenditure of money, the Commissioners are. in case of opposition to their proposed purchases, placed under the control of the Inclosure Com- missioners, and must obtain the sanction of Parliament for their undertakings. Purchase of If the owner of land consents to sell to the Commissioners, consentof the elaborate machinery of the Act is not called into operation, iwners. . . . . Should, however, there be opposition, and it becomes necessary Compulsory to resort to compulsory powers, the Commissioners arc guided taking. by certain regulations, which must now be considered. It is enacted by the 21st section of the Land Drainage Act. Consentof 1861, that the Commissioners shall obtain the consentof Parlia- ment to their purchase of any land for the purpose of new works (except in those cases where they effecl an agreement with the owners of the property). The following are the requisites (set forth in the 22nd section) to be complied with in order to obtain the Parliamentary sanction(a) : — Ulvertisement. I. Publication once (1) in the " London Gazette": (2) in a newspaper circulating within the limits of the Com- mission, of an advertisement describing shortly the nature of the proposed undertaking, a place where a plan of the same can be seen, and the quantity of land required. (it) This procedure is very similar in iliai required by Standing Orders nl' Parliament in case of a private Bill. The Commissioners must use great care in the preparation of these documents, as mistakes might lead to the rejection of the petition, Powers and Duties of Commissioners of Sewers. 79 II. Service of ;i notice on everj owner (a), lessee and occupier nf the lands required, denning the land in be taken, ami requiring an answer assenting, dissenting or neuter, as t lie ease may lie. The notice must be delivered personally; or Then (1) On the party's agent, if he he absent, abroad ; or (2) li musl he left at such party's usual or last-known place nl a bode ; or (.''>) h must lie Forwarded by post in a prepaid letter addressed to the usual or last-known place of abode. These formalities being observed, the next step is for the Petition to n ■ ■ 4- . . *i r l n ■ • [nclosun Uommissioners to present to the Inclosure Uommissioners a missioners. petition stating the land intended to be taken, and the purposes for which it is required, while the prayer of the petition is for Prayerof leave to the Commissioners toavail themselves of the provisions of the Lands Clauses Consolidation Act in relation to the com- pulsory taking of land, and supported by such evidence as the Enclosure Commissioners may require (s. 23). Upon receipt of the petition, and having ascertained that the neces- sary preliminaries have hcen complied with, the Inclosure Commissioners proceed to consider the petition. If they think fit. they may dispatch an inspector to the district in order that The inspector. they may have the benefit of his inquiry before the\ assent to the petition (s. 24). The inspector, before opening his inquiry, must give notice of his intention so to do, fixing ininqnirybj the notice a time and place at which he will hear persons who may wish to attend before him (s. 25). When the inquiry is completed, the Enclosure Commissioners Provisional order. ma v make a provisional order (6) enabling the Commissioners of Sewers to use the provisions of the Lands Clauses Consolida- (n) Or reputed owner or reputed lessee. (6) See the similar machinery in the Rivers Conservancy Bill, L883, by which the Local Governmeni Board were to make a provisional order, authorising the application of such sections of the Lands Clauses Consoli- dation Act as they thougW fit. SI I Land Drai/nage and Sewi rs. Confirmed by Parliament. Arts incorporated. tion Act for the compulsory purchaso of land, and this done, the Inclosure Commissioners must obtain the confirmation of such order by Parliament, which, when so confirmed, becomes a general Act (a) (s. 26). All costs, charges and expenses incurred by the Inclosure Commissioners in obtaining the Act of Parliament must be paid by Commissioners of Sewers out of the rates ( // ) applicable to the works, in view of which the provisional order is obtained {±.-27). The 28th section then proceeds to incorporate the provisions of 8 & 9 Vic. c. 18 (the Lands Clauses Consolidation Act, 1845) and the 23 & 24 Vic. c. 106, amending it. with this Act ; but it must be noticed that some material sections of the former of the incorporated Acts are omitted (r). These are : — Sections 10 and 17, requiring capital to be subscribed before compulsory purchase powers are used, which is evidenced by the certificate of two justices (*) Leviable under this Act. (s. 27). (c) In a local Act (City of London Sewers Act, 1848) the 2nd section incorporated the provisions of the Lands Clauses Art ; hut the 3rd excluded the provisions of that Act relating to the " purchase and taking of land otherwise than by agreement," which words are the descriptive beading of ss. Hi to OS of the Lands (Manses Act. No compensation was given by the special Act for the injurious affecting of land, which was the subject of dispute in the case. Held that s. 68 of the Lands Clauses Act was not incor- porated in the Local Act. Ferrar l\ Commissioners of Sewers in the Citj of London, L. R. 4 Ex. 227; 38 L. J. Ex. L02. Where, however, the entire Act is incorporated, no other enactment beyond s. 68 is needed, in order to confer the right to compensation for land injuriously affected. Ret>\ r. St. Lukes, L. R. 6 Q. B. 572; 40 L. .1. Q. I?. 305; affirmed, L. R. 7 Q. B. 1 Is: 11 Li. J. Q. B. sl : and the fact of compensation being expressly given by certain sections of the local Act was held not inconsistent with the intention that it should be given in cases within a section silent as to compensation, by virtue of the general enactment in s. 68 of the Lands (Manses Act . IS l.">. («?) As in these sections the Legislature had in view the formation of speculative schemes, it is obvious that they have no application to this subject . Powers and Duties of Commissioners of Hewers. 81 Sections 84 to 91 (inclusivo), relating to the entry on land, and the conditions upon which entry may he made before purchase. Section 123, imposing a limit of time for compulsory purchase. Upon payment made by the Commissioners, the lands, &c, Vesting of property in the purchased become vested (ft) in them, by virtue of s. 30 (3 & 4 Commissioners. Will. IV. c. 22). There are besides two sections in the same 3 & 4 will. IV. Act which renew and elaborate the point. Thus s. 38 enacts that upon payment or legal tender of the amount due as compensation within 30 days, the Commissioners, their agents, servants, &c, may enter upon the messuages, lands, &c, and thenceforth all the land, &c, and all the estate and interest of any person therein, vests in the Commissioners for ever, such pay- ib. s. 4". ment or tender barring all right and title to the property in question, and also to wife's dower, estates tail, and other estates in reversion or remainder. Again, by s. 47 of the same Act, the property in all lands, buildings, works and other things purchased, obtained or erected, or which are or shall be within the view, cognisance view ami or management of the Commissioners (h), and also in the Commissioners. goods, tools, utensils, materials, &c, is vested in the Commis- («) Prior to this Act, the Commissioners had no property in the land, an inconvenience which was felt in the case of the Dnke of Newcastle v. Clark, 8 Taunt. C82 ; 2 Moore, 66G, where it was held that the Com- missioners had neither property nor possession sufficient to maintain an action of trover. (b) In Crossman v. Bristol and S. Wales Railway, 1 H. & M. 531 ; 11 W. R. 981, V.-C. Page-Wood was of opinion that this section would include banks, sea-walls, &c, by tidal or navigable rivers. It had been doubted w aether these were included under the statute 23 Hen. VIII. c. 5. In the same case a natural embankment, which protected the land from floods, was held to be within the " view r , cognisance, or management of the Com- missioners," although the freehold had been in the lord of the manor and by liim conveyed to the defendants; evidence was given that for 40 years the Commissioners had exercised jurisdiction over t lie embankment, making ordinances for its protection, and had fined persona for taking material from it. 82 Land Drainage and Sewers. sioners. It will be found, on reference to the section itself, that the terms of ii arc most wide, ami its Language vague and Loose. In a case (a) where it was moved to restrain a railway company from digging up a deposit of beach on the banks of the river Severn, within the lower Level of the County of Gloucester, it was objected that the Commissioners had no property in the beach to enable ihem to resist the acts of the railway company. Page Wood, V.-C, after reviewing the case of the Duke of Newcastle v. Clark (/>), continues, in these words: "Without subsequent legislative authority the plaintiff (the Clerk of Sewers) would fail, but 3 & 4 Will. IV. c. 22 is meant to obviate this difficulty. That Act, by section 47, vests in Commissioners of Sewers all lands, etc., not noticing artificial works specifically, hut using words large enough to cover all works, natural or artificial, over which the Commissioners have jurisdiction. . . . The section admittedly vests in them a special property for the pirrpose of enabling them to maintain actions and prefer indictments, and this Court will interfere by inter- locutory injunction to prevent any injury to their property pending such action or indictment." The contention thai the 47th section gave the fee simple of all lands within the view and management of the Commis- sioners was, however, set aside by an important decision in the Court of Exchequer (c), in which the Court held the section to mean that all lands were vested in the Commissioners after due purchase ; and all buildings, works, &c, which came within their view, were vested in them, thus separating the subject- matter of the section. It was also observed that the Act for (a) Crossman v. Bristol and S. Wales Railway, 1 IT. & M. 631; 11 W. R.981. (b) 8 Taunton, 202; 2 Moore, 66G. (<•) Stracey v. Nelson, 12 M. & W. 535; 13 L. J. Ex.97, per Parke, B. It has been held there is nothing Inconsistent with the purpose of a sea or river-wall or embankment, erected to protect neighbouring lands, in a right of way along the surface. Board of Works for Greenwich v. Maudslay, L. R. 5 Q. IS. 397 ; 39 L. J. Q. B. 205. Powers and Duties of Commissioners of Sewers. 83 the first time made the Commissioners qua a corporation, and Commissioners tit :l corporation. that this clause enabled not only the Commissioners who purchased the lands to hold them, but also subsequent Com- missioners. In the Lands Clauses Act (8 Vic. c. 18, S. 81), which, as has Lands Clauses been seen, is incorporated with the Land Drainage Act, 1861, it ' is provided that all conveyances made, &c, shall he effectual to vest the lands thereby conveyed in the promoters of the under- taking-, terms of years being thereby merged and all estates tail being barred. G Z Survey and Jury Vroced/wre. 85 CHAPTER IV. SURVEY AND JURY PROCEDURE. PAGE PAGE Survey 85 Inquiry and Presentment by Jury 87 Traverse of Presentment 'Jl Procedure without Jury under Lund Drainage Act, 18G1 (24 & 25 Vic. c. 133) - - 94 Appeal to Quarter Ses- sions - 05 SURVEY. HAVING described the works to which the authority of Com- missioners of Sewers extends, the next consideration is tin; procedure necessary to enable them to undertake the execution of the various purposes of the Commission ( Yir. e. 133, s. 67. (M SeeCallis, L06, and 1!. y.Warfcon, 31 L. J. Q. B.265; 2 B. A- S. 719. But since they are directed to survey themselves, Homo, in his Reading of Sewers, is of opinion that a blind man (•annul therefore ho a Commissioner (p. 3). In some Commissions the jury used to view and survey in company with the surveyor, e.g. Tower Hamlets Commission, Nee evidence given before the Select Committee of the House of Commons, July, 1823. 86 Land Drainage and Stivers. ascertain the requirements of the district by the opinion of surveyors, engineers, and other competent persons (a). With jury. The next step, up to the passing of the Land Drainage Act, 1861 (24 & 25 Vic. c. 133), was to summon a jury to make inquiries, and return a presentment of the requisite repairs and works, or of any obstructions to be removed, (b), and the persons liable for their execution or removal (c). Now, however, by Without jury. 24 & 25 Vic. c. 133, s. 33, the presentment of a jury may be dispensed with ( Crozier, Moor & Malk,119j 3 C. & 1*. 63. These decisions anise from the words of 23 Hen. VIII. c. 5, s. 3, directing the jury to be of the " said shire or shires, place or places." 88 Lt required 1 lie sheriff to suiniiKHi "a sullieient number of good and lawful men of the county (of Lincolnshire) in nowise concerned in the said drainage," it was attempted to impeach the validity of the presentmenl on the ground that the jurywere summoned. from a particular hundred, but the Court held that, as this was in law dt corport comitatus, the proceedings could not be impeached. In giving judgment, Pollock, C. B., said: "The sheriff has, in his discretion, as he well may, in obedience to the precept, summoned jurors who resided in a particular hundred, but in law they are still jurors de corpore comitatus. He had an unlimited jurisdiction given him, and, like a wise man, he exercised it in the most convenient way ' (a). The inhabitants of a district placed by a local .Vet under the exclusive jurisdiction of drainage Commissioners cannot therefore claim exemption from serving on juries at the general Court of Sewers (6). Standing It was at one time the custom to elect standing juries, but this practice was discountenanced and held irregular by Lord Ellenborough, C. J. (c) The jury are sworn (J), and are directed to inquire into the want of repair, the removal of obstructions, by whose default they are occasioned, and who is liable for the same (e). The Chairman charges the jury as to their duties and the points to which their inquiry is to be directed, and after inquiring, by evidence brought before them, into the matters requiring investigation, the jury make their presentment. (a) Taylor v. Loft, 22 I.. J. Ex. 131 ; 8 Ex. 269. (6) /•;, parte Owst, 9 Price, 117. (c) R. v. Somerset, 7 East, 71. — The practice was for the sheriff to summon the jury on the first occasion only. This jury then became a standing jury, and on subsequent occasions was summoned by the foreman on the order of the sheriff. See Grantham on the Land Drainage Act, 1861, p. 17, ante, p. is (d) The form of oath is given in Appendix B. J5y 30 & 31 Vic. e. 35, s. 8, jurors may make an affirmation in lieu of an oath. (a) 23 Hen. VIII. c. 5, 8. 3; 3 & 4 Will. IV. c. 22, s. 11. juries. Survey and Jury Procedure. S9 The Commissioners have power to summon before them all the necessary witnesses (a). The evidence should be received witi in open Court ; and in a case where this was not done, bul the jury were seni out to prosecute their inquiries, and OTJ the information they picked up to make their presentment, the pro- ceedings were held to lie irregular, and set aside (/;). The Commissioners may tine jurors for misconduct, such as refusing to make a presentment, departing after being sworn on the jury, or before being sworn if appearance be recorded (c). It is said that a surveyor may make ;i supplemental present- Presentments . ''.v surveyor, ment, as tor example, that ''J. S. ought to have repaired a dyke-reeve, &c. certain ditch, but has not done so." But he cannot make tin original presentment ( Vic. c. 133, s. :VA. (e) See per Pollock, C. 15. in Taylor v. Loft, 22 L. J. Ex. L31 ; unt of the practice of the Sewers Court of the Com- mission for the east parts of tin' Bast Riding is to he found in Ramsey I'. Nornabell, 11 A. & E. 383. See also 1!. o. Baker, L. R. 2 Q. R. V,2i ; 3G L. J. q. R. 242. (c) See form of traverse of presentment, Appendix B, post. In some Courts the jury by which the traverse is tried is called " the traverse jury." See Report of .Select Committee on Met. Sewers, July, L823, p. 17. () lb. p. Ills, 'riir presentment is dow by Is, ante, \ .87. (c) Madox Firm. Burgi. 84. In the ninth year of Charles [., certain lines were imposed by Commissioners of Sewers upon the burgesses of Axbridge, in Somerset. The burgesses appeared in t ho Court, of Exchequer, and plead and receive judgment of discharge. Consideratum est inter eos- dem Barones quod Bwrgenses de Axbridge prmdicti. . . exonerentur pro eo quod non prwsentatum /"it per juratores ". l,ro. Stj . I 78. (cZ) Heine, li7. (e) Custodes Libertat : &c, u. [nhabs.of Outwell, Styles, p. 184; Mich. 1G-19, noticed in I!, v. Commissioners for Somerset, 7 East, at p. 80. (/) Styles, 19] : Mil. 1649; R. v. Apsley, Sty. 15, and cases there cited. and the jurisdiction. Survey and Jury Procedure. 93 A presentment which failed to set out in quanto and in qua parte a certain obstruction existed, i.e., how great the increase Locality and had been and in what place it had occurred, was held void (a), obstruction. The presentment must also state the want of repair. In a The want of case (b) where a rate was made upon an order of Commis- sioners to repair a wall, after a presentment which did not allege that the wall was out of repair, Lord Denman, C. J., in quashing a certiorari to remove the proceedings into the Court of Queen's Bench, said : — " There are also formidable objections to the presentment itself, for it is not stated that there is any ' let, impediment, or annoyance,' nor is it stated that the wall is out of repair, therefore the finding may be true, and yet no legal consequence ought to follow." With regard, however, to these technical objections to present- ments, it is always important to determine whether the pro- ceedings are under 23 Hen. VIII. c. 5, or under the later Act of 3 & 4 Will. IV. c. 22 ; for it has been held that the powers given by the former statute still exist, and that the Commis- sioners are at liberty to proceed in the same way as before Will. IV., although the mode of proceedings under the later Act is more convenient and expeditious. Thus a presentment which does not allege notice to repair as is required by 3 & 4 Will IV. c. 22, s. 15, but states that the costs and charges of repairing amount to a certain sum, and a judgment thereon, ordering that payment, is good (c). The presentment, traverse and verdict, together with the Record of judgment and decree thereon, are entered of record in the Court P1 ° of Sewers, and when once recorded no traverse is admissible, (a) See Hall r. Mason, 19 Jac. I. ; Callis, p. 262-264. (h) It. v. Mathias, 2 Jur. 13. The report of this case is meagre and unsatisfactory, and no argument is given in supi:>ort of the presentment. The decision was in 1838, and therefore after the passing of 3 & 4 Wm. IV. c. 22. See, however, remarks upon this point in It. v. Commissioners of Sewers for Fobbing Levels, 53 L. J. Q. B. (to be reported), post, p. 151. (c) It. v. Baker. L. R. 2 Q. B. 621 ; 36 L. J. Q. B. 242. 21 \ 2S Vic. c. L33, 8. 33. 94 Land Drainage and Sewers. inasmuch :is the decree is the final judgment of the (Sunt. which, being a judicial act, canned be traversed, the remedy being by writ of error (a). PROCEDURE WITHOUT JURY UNDER LAND DRAINAGE ACT, 1861. The Land Drainage Act, 18G1 (24&25 Vic. c. 13:5), by s. 33, enables Commissioners of Sewers, without the presentmenl of jury, "to make any order in respect of the execution of any work, the levying of any rate, or doing any act which they might, but for this section, have made with such presentment; subject to this proviso, that any person aggrieved by any such order made by the Commissioners without the presentment of a jury, may appeal therefrom in manner thereinafter meni ioned." Thus, in some Courts, the practice is now for the orders, &c, to be made upon the presentment of the general sur- veyor; notice is given to the party affected, generally by furnishing him with a copy of the order made, after which he can appear at a subsequent Court to urge his objections. The The practice proceedings, however, vary, according to the custom of the particular district, some Courts of Sewers si ill continuing to use the presentment by jury, while others have adopted the provisions of the Act of 1861 (b). The practice, therefore, may now be alternative. If the procedure antecedent to the Land Drainage Act, 1861, is still observed in the particular Court, (a) Callis, 215-217. — Ho adds, that if in the Session of Sowers the cause proceed to a decree, the party grieved is to prefer a bill of reversal in manner as is done in the High Court of Chancery. See also Commissioners of Sewers r. Wilmore, 2 Keb. 137 ; Heme, 7. In Warren v. Dix, IS C. & P. 71, it was suggested that a party who had nottraversed the present- ment was ('stopped from bringing an action for illegal distress against the officer of the Commissioners, lint t lie point does not seem to have been actually decided. (/<) [n investigating the practice in the various parts of Lincolnshire, which in that county exhibits considerable variety, much reluctance to adopt the Act of 1801 has been found to exist. Survey and Jury Procedure. 95 presentment and traverse (if any) remain the foundation of an order; but if the powers of the Land Drainage Act, 1861, are resorted to, the order of the Commissioners, with the right to appeal from such order, takes the place of presentment and traverse. The effect of an order made under s. 33 of the Land Drainage Act, 1861, by Commissioners of Sewers, as contrasted with the old practice, is well explained by the Court (Lord Coleridge, C. J., and Cave, J.) in a recent case (a). "Under the former system the question of liability was put in issue by a traverse of the presentment, and after the trial of the present- ment and verdict found, it is impossible to conceive that, so long as that verdict stood, the. liability so found could be disputed. * # * The or ^ er f the Commissioners is, by the section already quoted (24 & 25 Vic. c. 133, s. 33), to have the same effect as if it had been preceded by the necessary presentment and an appeal to the quarter sessions is substituted for the traverse to the presentment." This method of objecting to the action of the Commissioners is now briefly considered. APPEAL TO QUARTER SESSIONS. The Land Drainage A.ct, 1861, allows an appeal to Quarter Land Drainage a ■ n t ... „ , Act, latil, s. 17. Sessions irom any order, requisition, rate or act of the Commissioners (6). It was with a view to give 'any person Quarter aggrieved by any order, etc., an opportunity of raising his objection, which he formerly did by traversing the presentment, that this right of appeal to the Sessions is conferred by the Statute. Accordingly, where the whole practice of presentment by jury prevails, this section does not apply, nor in those cases in («) R. r. Commissioners of Sowers for Fobbing Levels, 53 L. J. Q. B. (to be reported). (b) By s. G7, Drainage Boards are vested with the powers of Com- missioners of Rowers, 96 Land Drainage and Sewers. which Commissioners of Sewers exercise such powers as, under t lie old statutes, did not require the presentment of a jury. The [tower to remove the orders, rates, etc., of the Commis- Certiorari not sinners by certiorari into the Queen's Bench Division is not l.i kin away. ^ " taken away by the statute, for the rule of law is. that although a certiorari lies unless expressly taken away, yet an appeal does not lie unless expressly given by statute (a); hut the eases Other remedies, quoted helow show that other remedies are ousted by the power given to appeal (1>). Powersof the The section enables the Court of Quarter Sessions to confirm, Court. . ° annul or modify the order, rate, &c, appealed against. Then follow certain steps of procedure which it is incumbent upon the appellant to observe, and which may be summarised thus : — ■ Time for The appeal must be made within four months next after the appealing. making of the order, &c (/•). Ten .lays' Ten days' notice in writing- of the appeal previously to the notice. Quarter Sessions, stating the grounds of the same, must he served on the Commissioners (d). (a) Keg. v. Hanson, 4 B. & Aid. at p. 321. (b) Notwithstanding the words " may appeal," Bonnell v. Brighton, 5 T. R. 182; Entchins v. Chambers, 1 Burr. 580; Durrant v. Boys, 6 T. R. 580; Marshal] u. Pitman, Ring. 595; Overseers of Birmingham i>. Shaw, 10 Q. R. 8G8; 18 L. J. M. C. 173; Fawcett v. Fowlis, 7 B. A- ('. 394. See contra, Leader r. Mason, 2 W. HI. 926; Birley v. Chorlton-on-Med- lock, 3 Reav. 499 ; and so where the Commissioners have acted withou 1 jurisdiction, Weaver v. Price, 3 R & A. -109; Bristol v. Wait, 1 A. A- E 264; Sibbald r. Roderick, 11 A. & E. 38; Lord Amherst v. Lord Somcrs, 2 T. R. 372, and see post, p. lG(i, Certiorari. (c) The safest course is to bring the appeal to the next practicable Sessions, or to enter and respite within that time. Mont lis mean calendar mouths, 13 & 14 Vic. c. 21, s. 4. As to various decisions upon the com- putation of time in appeals to Sessions, .see Leeming & Cross, Quartei Sessions, 2nd ed., 363. Even if the party has had no notice of the order, &c, of the Commissioners, t he time funs against him, 1!. v. Derbyshire J.J. 7 q. 15. 193 ; K. v. Stall, J.J. 3 East, 151 ; R. v. Suffolk, 4 D. & L. 628. (7 The Commissioners appear by their Clerk (a). Appearance. Within four days after service of the notice of appeal on the Commissioners, the appellant must enter into recognisances Recognizances. with two sureties, conditioned to prosecute the appeal, and to abide the order of the Court (1>). The appeal should be entered with the clerk of the peace, Entry of appeal. and care should be taken to observe any special rules of the Sessions. If notice of appeal is given, and the appeal is Costs, not entered, the Court may give costs to the Commissioners (r). The Sessions may adjourn the appeal from one Sessions to Adjournment. another (d). The Court may award costs to the successful party (e). The Sessions may state a case for the opinion of the Superior Special case. Court. The party complaining of the decision of Quarter Sessions must obtain a rule nisi calling on the opposite party to show cause why the order of Quarter Sessions should not be quashed (/). Riding, 4 B. & A. 685. The grounds of appeal must be set out, bur not to the extent of showing the evidence to support the facts to be proved, but so as to give the Commissioners reasonable means of inquiry, K. v. Derbyshire, 6 A. & E. 885, per Littledale, J. It might be held that notice served on the Clerk or one Commissioner would be a o- od service, 3 & 4 Will. IV. c. 22, s. 57, but it is safer to serve each Commissioner who made the order, &c. See R. v. Bedfordshire, 11 A. & E. 133. Personal service is not necessary, R. r. N. Riding, 7 Q. B. 154. (a) 3 & 4 Will. IV. c. 22, s. 57. (b) The entering into recognisances is a condition precedent to the right to try the appeal, R. v. Oxfordshire, 1 M. & S. 446; R. v. Lincoln- shire, 3 B. & C. 548. A corporation cannot enter into recognisance, R. r. Manchester, 26 L. J. M. C. 65. (c) By 12 & 13 Vic. c. 45, s. 6. (d) R. v. Wiltshire, 13 East, 352 ; R. y. Bond, 6 A. & E. 905. (p) 12 & 13 Vic. c. 45, s. 18. Costs may be recovered by warrant of distress, 11 & 12 Vic. c. 43, s. 27. (/) The order of Sessions had formerly to be removed into the Superior Court, by writ of certiorari, Corn. Cr. Pr. 70. The Summary Jurisdiction Act, 1879 (42 & 43 Vic. c. 49), in rendering writs of certiorari no longer necessary in such cases (s. 40), has provided no other means of removal. It is therefore the practice at the Crown Office to require the party com- 98 La/nd Drainage and Sewers. 1. 1 ■ ! Drainage Act, 1861, -. 13. Arbitral Ion. Sec. 49. The award, .Special case. Power of arbitrator. Time for making award. A special case may also bo stated after notice of appeal to the Sessions without going to the Sessions previously (a). The 48th section of fche Land Drainage Act, 1861 (34 & 25 Vic. c. 133), gives power fco fche Court to refer the matter in question to arbitration under certain circumstances (6). Tims, where the subject of appeal involves questions of account or of engineering or scientific matters, the Sessions may order an arbitration, in which the award is enforceable as an order of Quarter Sessions. By the following section (49) the provisions of fche Common Law Procedure Act, 1854, relating fco compulsory references, are made applicable fco such an arbitra- tion (c). The effect of the reference is to make the decision of the arbitrator equivalent to that of the Court of Quarter Sessions and enforceable by the same process. The award should be entered as the judgment of the Sessions, and the justices have no power to vary it (d). The 5fch section of the C. L. P. Act, 1854, enables the arbi- trator to state a special case for the opinion of the Superior Court. The arbitrator (unless otherwise directed) conducts the reference with the same powers, &c, as in a reference made by consent (s. 7), and should make his award within three months, unless by consent of the Sessions the time is enlarged. By s. '.' plaining of fche order fco move for a rule nisi, which is obtained by hand motion, and is then put into the Crown paper for argument. The party complaining of the order begins. See " Law Journal," Legal News, 1883, p. 684. (a) 12 & 13 Vie. c. 45, s. 11. (b) It is apprehended thai fche appeal to Sessions generally takes the form of arbitration, see the evidence of Mr. Grantham, Rep. Committee upon Conservancy Hoards, 1S77, (Question 921, and it is therefore on that account, mainly that the above bare outline only of fche procedure under s. 47 has been given. (c) It is not in the power of either party to revoke the reference without the leave of the Court of Quarter Sessions — 3 & 4 Will. TV. c. 42, s. 39. (d) B. v. Middlesex L. K. G Q. B. 220; 40 L. J.M. C. 109, Survey and Jury Procedure. 99 application to set aside the award must be made within the p wer to set first seven days of the term next following- the publication of aside award- the award (a). The order of reference should state the terms as to costs, costs, otherwise each party pay their own (&). To illustrate matters which have been the subject of arbitra- tion by Commissioners of Sewers, reference maybe made to the cases cited below (c), although these did not occur under the Land Drainage Act, 1861, but were the result of an ordinary action at law. The subject of arbitration under the Lands CI. Con. Act, L . ci. Con. 1845, is dealt with post, p. 222. Apt> im - ' (a) For the grounds for setting aside an award, see Russell on Awards, Part iii. s. 3 ; Edwards v. Edwards, 23 L. J. Q. B. 278; Watson v. Beavan : 8 W. K. 012 ; In re Denton, L. R. 9 Q. B. 117 ; 43 L. J. Q. B. 41. (6) Bell i\ Postlethwaite, 5 E. & B. 695; 25 L. J. Q. B. 63; Leggo v. Young, 16 C. B. 626 ; 24 L. J. C. P. 200. If the order of reference is silent as to costs, and the arbitrator awards them, the award is irregular. West London Extension Rail v. Ftilham Union, L. R. 5 Q. B. 361 ; 39 L. J. Q. B. 178; R. v. Middlesex, L. R. 6 Q. B. 220; 40 L. J. M. C. 109. (c) Doddington v. Bailward, 7 Dowl. 640, the removal of weirs and hatches in a river; Medley v. Pritchard, 6 Bing. N. C. 4i2, obstruction of a watercourse. h a Bating. 101 CHAPTER V. RATING. PAGE PAGS Rate, how made 101 | Objections to rate and Tax in gross - 102 mode of objecting 122 The purposes for which a Enforcement of rate 124 rate is made 104 Distress - 126 Special rate - 106 Replevy ... 131 The principle of rating - - 107 Action for illegal distress 132 The property on which Rateability of property the rate is levied 110 of Commissioners of Persons liable in respect Sewers ... 135 of such property 118 RATE HOW MADE. Commissioners of Sewers having, by survey and present- Rate how made ment, («) ascertained the expenditure required for the works and other purposes in their district, proceed to raise the amount by a rate, (b) Under the Land Drainage Aet, 1861, 24 & 25 Vic. c. 133, s. 33, the Commissioners may also, as has already been shown, assess a rate for the same purposes without the present- (a) See ante, p. 85. (b) All the powers vested in Commissioners of Sewers are exerciseable by Drainage Boards. (24 & 25 Vic. c. 133, s. 07). 1<>2 hand Vrainagt and Sewers. incut of a jury (a), and by s. 39 the overseers are bo allow the Commissioners to inspect the poor rates. In sonic commissions, where the district is divided into levels, each level being coterminous with a parish, it is the practice for each parish to settle its own rate in vestry, and for the Commissioners to hold a Court, when all the rates thus made are confirmed. It has also been the practice for the Court to nominate assessors (b). (following the direction of Oallis), who state the apparent value of each man's estate which the jury find liable to be assessed, and which, upon proper evidence, is adopted. An estimate is then made by the surveyor of the necessary expenses of those works upon which the rate is founded at so much in the pound. Subdivision of Prior to :} & 4 Will. IV. c. 22, it had been held by the districts. Courts that Commissioners of Sewers had power to subdivide their districts (c), and this decision the legislature approved by directly empowering Commissioners to partition into sub- districts the several levels or districts within their Commission and to rate each district separately (3& 4 Will. IV. c. 22, s. 14). In the same manner, 12 A: 13 Vic. c. 50, SS. 1, 2, empowers the Commissioners to unite and rate separately the several districts within their Commission ( Vic. C. 45, S. 1, enables Commissioners of Sewers Tax, I ,\ .j \ ic. lo levy a tax in gross for certain purposes in each parish, township, or place, on lands and hereditaments which are (a) See nnte, p. 94.. (b) Callis, 127. (c) R. v. Commissioners of Sewers for the Tower Hamlets, 9 B. & < '. 5] 7. (d) Affirming the decision of St. Katharine Dock Co. v. Hitfgs, 10 Q. 13. 641; 14 Q. B. 348; IG L. J. Q. B. 377, which had decided that Commis- sioners of Sewers eould, in their discretion, unite districts or levels within their Commission. RaUng. 103 within, or partly within, the jurisdiction of their Court. The According to lands and hereditaments must contribute in proportion to the benefits received from the Court. This tax is called the General Sewers Tax, and is recoverable by distress and sale in the same way as a fine or amercement imposed by a Court of Sewers. The tax is to be apportioned among the occupiers of Apportionment the lands and hereditaments within the township, parish, or place in such proportions and upon such persons as of right ought to pay the same. Before this Act was passed great doubt existed upon the question whether rating in gross was legal or not. On the one hand, in favour of such assessment was the authority of an early case in the Book of Assizes (a), and the opinion of Callis (b), while on the other hand the report of Coke, on the case of Isle of Ely, was against it (c). It would seem that where there was a special custom capable of proof of levying the tax upon the township, the tax was considered good, although the cases are conflicting and difficult to reconcile. An important decision, however, in 1837 (d), dis- tinctly affirmed the proposition that, though the custom might exist, it could not vary the law as to such rating, and that a sewers rate assessed in gross on a township at large Avas bad, though laid only for defraying the expenses attending the issuing of a Commission. Four years after this case the 4 & 5 Vic. c. 45 was passed, to i&5Vic. c. «.->. J *■ amending 3 lV 4 which attention has been called. The statute amends on this Will. rv. c 22, s. Id. point the 3 & 4 Will. IV. c. 22, as to the provisions of s. 16. 0) 37 Ass. pi. 10 ; 38 Ass. pi. 15. (b) Callis, 123-129, where the various authorities up to his time are collected and remarked upon ; Comyn, Dig. tit. Sewers, E. 2 ; Heme, Reading of Sewers, 13. (c) 10 Rep. 141 a. The "resolutions in this case were disapproved of by the Privy Council, reported in Moore, 824. See also Hetlcy v. Bowyer, Cro. Jac. I. 336 ; 2 Bulst. 197 ; Custodes v. Inhabitants of Outwell, Sty. 178 ; Viners Ab. tit. Sewers, 418 ; 2 Phil. Ev. 443, 7th ed. (r?) Emerson v. Saltmarshe, 7 A. & E. 260; 2 Nev. & P. 416; 1 Jur.470. i04 Land Drainage and Sewers. By this section of the latter Act certain payments to clerks and other persons employed by the Sewers Courts, the costs, charges and expenses incurred in surveying and valuing lands preparatory to making, collecting and expending certain Purposes of taxes, and the expenses of carrying on any litigation by the s. 16. Court, and of putting [the various Sewers Acts into execution, together with the contingent expenses of "working the Commis- sion, were authorised to be paid out of the taxes, rates, and scots. The statute, having stated that these powers in some cases were not found sufficient, gives powers to the Com- missioners to tax in gross for all or any of these purposes. The purposes for which the Commissioners are enabled to raise this General Sewers Tax are limited to those enumerated in the 16tli section of 3 & I Will. IV. c. 22. It may be difficult in certain cases to give effect to the words '" in proportion to the benefit ami advantage capable to be received from the said Court," as neither these words, nor others of like meaning, are found in the 3 & 4 Will. IV. e. 22, s. 16, and the powers therefore given by the earlier Act would enable the costs, &c., to be spread over the whole level. However, the matter is entirely one for the careful consideration of the Com- Appoitionment missioncrs. for their apportionment when made, and their discretionary, decision as to the General Sewers Kate (a) is final (b). Objec- tions to the apportionment are noticed post. PURPOSES OP HATE. 23 Hen. vni. ]U- the 3rd section of 23 Hen. VIII. , Commissioners of Sewers C. 5, s. 3. J were empowered to tax, assess, and charge all persons (defined (a) Presumably " General Sewers Tax,'' us it is so called in s. 1. (b) 4 &: 5 Vic. e. 45 s. :?. A case of apportionment among "the parishes, townships, and places in the Isle of Axholme, in Lincolnshire," is reported, R. c. Whittaker, 9 B. & C. (M8, but the apportionment was by virtue of a local Act, and the decision is only valuable to show that the apportionment made by two out of the three Commissioners was valid, because a matter of public duty and trust. See on this latter point, Cook v. Ward. 2 0. P. 1). 255; 4P I- \. C. P. 554. Rating. 105 by the Act) according to their property, for the purpose of making and amending the various works therein mentioned. It had been decided in 1830, that the Commissioners might make a rate to defray the expenses of works already done without the previous presentment of a jury (a), or to defray previous law expenses of the Commission bund fide incurred by the Com- missioners in discharge of their duty (6). The effect of these decisions is seen in 3 & 4 Wrn. IV. c. 22, s. lb\ which authorised 3 &4 will. IV. C. 22, s. 10. Commissioners to pay out of their taxes, rates, &c, the expenses of their clerk and other officers employed by them, to provide for the exj)enses incurred in carrying on litigation arising out of their duties as Commissioners of Sewers, for the expenses of witnesses in support of or in opposition to any jury or present- ment, and for any contingent expenses in working the Commis- sion. In a case after the passing of this statute, where the Commissioners of Sewers for Norfolk had opposed a Bill in Parliament promoted by owners of land in the Middle Level of the Fens, it was held that the Commissioners might levy a gross rate, under 4 & 5 Vic. c. 45, s. 1, to pay the expenses 4 & 6 Vic. c. 45, s. 1. attending their opposition to the Bill in question which had been conducted bond fide, on the ground that such opposition was a "litigation or controversy " arising out of their duties as Commissioners of Sewers within this ltith section, and that a mandamus would lie to compel them to make a rate (if they had no other funds) for the repayment of costs incurred by their clerk under their authority in such opposition (r). But now the purposes of the Sewers Rate are summarised in the Land Rates. Drainage Act, 1861, s. 38, which in effect declares the existing Drainage law on the subject. Rates accordingly may be made by the Com- (a) R. v. Commissioners of Sewers for the Tower Hamlets, 1 B. & Ad. 232 ; following the case of the Level of Hull, 2 Str. 1127- (b) lb., approving, R. v. Essex, 4 T. R 594. See also Harrison v. Stickney, 2 H. L. Ca. 108, for the retrospective effect of a rate under a local Drainage Act. See ante, p. -45. (c) R. r. Commissioners of Sewers for Norfolk, 15 Q. 13. 549; 25 L. J. Q. B. 121. lU(i Land Drainage and Sewevs. missioners to vaeei all costs, charges and expenses (a) incurred, or to be incurred by them under the authority of any Act of Parliament, law, or custom. Thus this section disposes of a difficulty which had been experienced in applying the provisions of 23 Hen. VIII. c. 5, 3 & -i Will. IV. c. 22, and 4 & 5 Vic. c. 45, by empowering the Commissioners to discharge any expenses lawfully incurred by them by a rate to be levied for the purpose. Special rate. Contributions under Rivers Conservancy Act. SPECIAL RATE. It is to be observed that when the purpose of the rate is to provide for expenses over £1,000 incurred in improving- existing or in making any new works, tbe rate is called a special rate (s. 38), and is to be a tax on the owners of property (b) ; but if the proprietors of one-half of tbe area of land within -which a rate is proposed to be levied dissent, the works cannot be carried out (s. 31). Unless the particular works are made which may be defrayed by a special rate, any expenditure connected with them must be include* I in the general rate which falls upon the occupiers and (a) There are several instances of special payments which Commis- sioners are empowered to defray <>ut of the rates, e.g., allowance to a jury- man for loss of time (4 & 5 Vic. c 45, s. 7). expenses in obtaining an issue of a Commission under the Land Drainage Act. 1 8UI (24 & 25 Vic. c. 133, s. 12); of obtaining a provisional order from the Inclosure Commissioners to purchase land (ib. s. 27) ; of mortgaging the rates for the purpose of borrowing (ib. s. 40) ; of legal proceedings, (lb. 52). (6) Defined by the section. By the Rivers Conservancy Bill, 1883, ii was proposed that it' a work in an outfall or a main channel executed by a Conservancy Board, was lor the general advantage of lands within the jurisdiction of a Commission of Sewers, and of lands within the jurisdiction of the Conservancy Board, the Commission might be called upon by Che Local Government Board to pay contribution, and if the outfall for fen lands should become inadequate to carry off the additional water which might be poured into it by the action of the Conservancy Hoard, the Local Government Board might arrange for the improvement of the outfall or main channel, and apportion the expenses between the Conservancy Board and the Commissioners of Sewers. Eating. 107 not upon the owners. Tims, a Drainage Board for a separate drainage district incorporated under this Act incurred expenses amounting to more than £2,000 in making- surveys and plans for certain proposed works, which were to cost about £10,000, and the proprietors of more than one-half of the area of land within the district dissented from the execution of these works (s. 31), which were never carried out, The Board made a general rate on the occupiers of land within the district in order to pay for the expense of surveys and plans, and the Court of Queen's Bench held that the provision at the end of s. 31 did not come into operation where the works have been stopped by the proprietors refusing their assent, and that the abortive preliminary expenses were payable out of the general rate, and were not a charge upon the owners under a special rate (a). PRINCIPLE OF RATING. It is important to observe the distinction between a Distinction 1 between liability liability to repair and a liability to contribute to the rate. t.o-e,.a^and The former liability may have arisen in the first instance from contribute. the broad principle of benefit, but,' in some instances by reason of alteration and chauge, it may be difficult to point out the particular benefit which the land derives, and it cannot there- fore be accurately said that this liability depends on the prin- ciple, since the liability continues when the original reason has disappeared. The liability to contribute to the rate, however, depends solely on the principle of benefit, and when the benefit ceases so does the liability. The liability to repair cannot strictly be placed under the head of rating, although it is a liability to contribute to the drainage works of the district, and, as there are many special considerations affecting the subject, it is more convenient (a) Griffiths t\ Longdon Drainage Board, L. R. G Q. B. 738; 41 L. J. Q. B. 25. rat 111 Jos Land Drainage and Sewers. to place it under a separate chapter, which will be found imme- diately succeeding this. principle of Tin- principle of rating which was enunciated by 23 Hen. VIII. c. .">. and lias been preserved in all subsequent statutes, is that all persons whose property situate within the Commission derives benefit or avoids danger from the execution of t he works arc Liable to be rated— an application of the maxim qui sentit commodum sentire debet ei onus (a). A direction similar to that given by -'•'> Hen. V I 1 I . c. .") appears in the older statute ol 6 Hen. VI. c. ."> (repealed), in language which perhaps shows more distinctly the power ol' the Commissioners as well as their duty (o). The direction in that statute is: "That no tenants of lands or tenements, nor any having common of pasture or fishing, rich or poor, nor other of what condition, state or dignity, which have or may have any defence, commodity, and safeguard by the said walls, ditches, gutters, sewers, bridges, causeways, or weirs, or else any hart by the said trenches (whether they he within liberties or with- out) shall in anywise be spared this.'' The principle of benefit is also stated broadly in 4 & 5 Vie. c. 45. The benefit need not he immediate (o), and the quantum of benefit is a question for the Commisioners ('/). Rateability onco (a) Callis, 222; Heme, Beading on Sewers, 1 ; Master v. Scroggs, liM. & s. 117; [sle of Ely Case, LO Rep. ill": Keigkley's Case, LO Rep. L39a; Rooke's Case, 5 Rep. 996; Dure r. (iray, 2 T. R., per Buller J. at p. 366; Stafford v. Hampston, 5 Moore, C. P. Rep. 608; 2 B. & B. 601, per Dallas, C. J.; Soady v. Wilson. :? A. & E. 248; Netherton v. Ward, 3 B. & A. 21 ; R. v. Commissioners of Sewers I'or the Tower Hamlets, !' B. & ('. r>17; per Lord Campbell, C. J., in Metropolitan Board of Works v. Vaux- hall Bridge Co. 7 E. A- 15. 964; 26 L. J. Q. B. 253: also per Cockburn, C. .1. in Hudson v. Tabor. 1 Q. E. I). 225; 15 L. J. Q. 15. L90; Hammer- .smith Bridge Co. v. Overseers of Hammersmith, L. R. tj Q. B. 230 ; 4U I.. .1. M. C. 79. (b) See per Lord Tenterden, C. J. in K. -. Commissioners of Sewers for the Tower Hamlets, 9 B. & C. at p. 522. (c) Soady v. Wilson. 3 A. & E. 248. ((/) St. Katharine Docks r. Higgs, L4 L. J. < v >. B. 318. affirmed on appeal. 10 ( L ». B. UU ; 10 L. J. Q. B. 377. Eating. H>9 established, no Question as to the amount of the benefit based on the particular uso to which the property has been applied can arise (a). The Commissioners can, of course, only tax lands within their district (6). The statute (28 Hen. VIII. c. 5) directs that all those persons, Rate to be on value "t the ■i.e., those benefited, are to be rated "after the quantity of their property. lands, tenements and rents 1>\ the number of acres and perches after the rate of every person's portion, tenure or profit, orafter t he quantity of their common of pasture or profit of fishing or other commodities there." The rate may be levied on those who are benefited by the drainage according to the value of their property and not according to their acreage, a conclusion which is arrived at by Lord Blackburn in the following language : "An objection was made, which I may dispose of at once. It was said that if this was a rate under the Land Drainage Act, Ltoughl to he an acreage rate, that is, the persons assessed oughl to be rated according to the extent of their land, and not according to its value; and a second objection incidental to the preceding has been raised, although it has not been seriously argued, that the rate ought to be levied only upon land, and that the increase in its value ought to be levied only upon land, and that the increase in its value by the erection of houses or other improvements oughi not to be taken into account. But these objections seem to be quite untenable, for the Sewers Act, 23 Hen. VIII. c. •">, has always received the (•(instruction that the rate is to lie levied upon those who are benefited by works according* to the value of their properties, and it would be unjust if the construction of the Acl were to be thai the rate was to be levied according to the superficial extent of the land benefited by the drainage and not according to its value " (c). This principle thus confirmed in L871 is derived from the construction of 23 lien. V 1 I I . c. 5, and is the existing law; (a) 1!. v. Head, 32 1.. .1. M. ('. L15. (b) Whitlej v. Fawcett, Sty. L3 ; Vin. A.br. tit. Sewers, p. 127. (c) Griffith* r. Longdon and Eldersfield Drainage Board, I,. R. 6 Q. B, 73S : 11 L, .:". (). B. 25. 110 L). And although the rate may be laid upon the number of acres (c), yet it is not necessary that the value of every acre should be inquired into ; it is sufficient if the general value of the property be ascertained and the rate levied accordingly (d ). It is not alone sufficient that the property derives benefit, it is also necessary there should be a rateable occupier. Thus it was held that no rate could be imposed on that part of Bridewell Prison which was inhabited only by the prisoners (<•), nor on that part of Chelsea Hospital which was occupied only by the pensioners (/). PROPERTY RATEABLE. Having, in accordance with the guiding principle of sewers rating, ascertained what property within the level or district is liable to be rated forthe expenses of the proposed works, the next matter which presents itself is the various descriptions of property which may be rated, and as a part of this the persons who arc liable in respect of such property. (a) See Report of Committee of the House of Lords on Oonservancj Boards, 1877; Question L! 546, ei seq. ; L774, et seq; L998, et seq. (b) Per Lord Chancellor Macclesfield, in Bow v. Smith,9 .Med. 94. (r) Brungy v. bee. St v. 178. (d) Commissioners of Sewers v. Newburg, 3 Keb. 827. (e) Tracey v. Taj lor, 3 Q. B. 966. (/) Neave v. Weather, 3 Q. B. 984j L2 L. J. (). B. .32 (s«b n Neave v. Wrather), 7 Jar. 168. Commissioners under a navigation Act in receipl of tells which bhej receive as bare trustees for the purposes of the Act are noi rateable in respect of such tolls. I!, i: Commissioners of Suiter's Lode. ! T. II. 730. Rating. Ill The Statute 2)5 Hen. VIII. c. 5, from which, as has been stated, the power of rating is originally derived, alone attempts any definition. By it Commissioners of .Sewers are authorised to assess " nil who hath or holdeth any lands or tenements or common of pasture or profits <>f fishing, or hath or may have any hurt, loss, or disadvantage by any manner or means after the quantity of their lands, tenements and rents by the number of acres and perches after the rate of every person's portion, tenure, or profit, or after the quantity of their common nf pasture or profit of fishing or other commodities there."' According to Callis (a), " the word land is of large extent, for it reacheth to houses, arable pastures, meadows, mills, tofts and to all other edifices, moors, marshes, woods, wood-grounds. The word tenements is of larger extent than lands, for it containeth all which the word lands doth, and all things else which lie in tenure." While these words of 23 Hen. VIII. c. 5, do undoubtedly include numerous descriptions of property, it must nevertheless be remembered that, in order to be rateable to the Sewers Rate, the property must derive benefit from the works in accordance with principle already referred to (h), with a view to which the following descriptions of property are briefly considered. The rateability of tithes presents a question of considerable Tithes importance and difficulty. Tithes have been defined (c) " as the tenth part of the increase yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants," which Coke, in his Institutes (<1), says are not subject to temporal burthens at the common law. when in Cftlhg the hands of a spiritual person. Callis. in a discussion of some (a) Callis, 139. See Coke on Litt. 6a. (h) Ante, p. 108. (c) Blackstonc's Comm. Book ii. p. 24; Castle on Rating, 300. Tithes are hereditaments, R. p. Capel, 12 A. & E. 383 ; Lnmley's Parochial Assessments, p. 70, and are classed as incorporeal tenements by Burton, Law of Real Property, 3rd. ed., 404, see R. •. Skingle, 1 Str. 100. (d) 2 Inst. 042 ; Fitz. N. B. 228. 112 Land Drainage ." From this opinion the editor, Mr. Broderip, who himself edited Callis' Treatise in 1N2I. differs. (b) Dig. t it. Sewers, B. 5. (c) Heme, p. !). (d) Eagle on Tithes, 17. The distinction between a sewers tax and a Parliamentary tax is pointed out in Palmer v. Earith, 14 L.J. Ex. 256; see also Brewster V. Kitchell, 2 Salk. 615; Waller v. Andrews, :'. M. & W. :U2: 7 L. .1. Ex. 68. A Parliamentary tax is one that is imposed ditectly by Act of Parliament . lb. (r) Voi. i. p. 176. Rating. 113 does certainly present matter for doubt (a). In Burns Ecclesiastical Law (b) it is observed that it does not seem a settled tiling - whether or not tithes are liable to be rated by the Commissioners of Sewers, and in much the same language Sir Robert Phillimore writes : " It does not seem a settled point Phillimore. whether tithes or rent-charge in lieu of tithes are liable to be rated by Commissioners of Sewers " (c). While Shelf ord, a great authority on the subject of tithes, dismisses the point summarily in these words, " on the question whether they are rateable (i. e., by Commissioners of Sewers) or not the writer can give no information " (d). There does not appear to be any direct decision of the Courts R- »• GoodcMld. of law on the subject, but an important case under the Metropolis Local Management Act, 18 & 19 Vic. c. 120, throws some light upon the general question (e). There the owner of the tithe commutation rent-charge claimed exemption, inter alia (under s. 164 of 18 & 10 Vic. c. 120), from so much of the poor-rate as included charges in respect of sewers, on the ground that prior to the passing of the Act neither the tithes nor the tithe commu- tation rent charge were ever assessed to the sewers rate, and this was proved to have been the practice of the particular Com- mission. In giving judgment, Coleridge, J., said, "Both the practice before and the decision (/) under this Act were fully warranted from a consideration of the nature of the property and the principle which regulates the imposition of the sewers (a) The following authorities on tithes have been consulted, but they are silent on this question — Cook, Selden, Comber, Prideaux, Degge and Mirehouse. (b) Burns Eccl. Law, 9th ed., vol. iii. p. 720. (c) Phillimore Eccl. Law, 1721. (d) Shelford on Tithes. (e) R. v. Goodchild, E. B. & E. 1 ; 27 L. J. M. C. 251. This case has been virtually overruled upon another point quite distinguishable from the present by Mersey Docks Cases, 11 H. L. C. 443 ; 35 L. J. M. C. 1 ; see R. v. Sherford, L. E. 2 Q. B. 503 ; 36 L. J. M. C. 113. (/) i.e. the appeal of the plaintiff against the rate under 11 & 12 Vic. c. 112, which had been decided in his favour by the Commissioners. I 114 Land Drainage and Sewers. rate, namely, that of actual benefit received by the property rated." In commenting upon this case, Phillimore writes, "In R. v. Groodchild, in the particular circumstances of the case, the rent charge was holden not to be liable to the sewers rate. Apparently, whenever tithe was not charged to sewers rate, the rent charge in lieu of it is not chargeable; but in cases where tithe was charged to sewers rate, a question may still arise whether the fixed rent charge in lieu of tithe is or is not now chargeable " (a). The judgment of Coleridge, J., (h) which has been cited, might seem to assert that tithes are not subject to the sewers rate, but a careful consideration of the language of that most learned judge, taken in connection with the particular circumstances of the case, appears not to waiTant so sweeping a construction, more especially as it was not necessary for the purpose of the decision to decide the point. The particular class of work, in that case executed in the Metropolis, from which benefit could be said to have been derived, was of a character so wholly different from that contemplated by the General Sewers Acts, that the judg- ment on this point can hardly have been meant to apply to large works of defence and arterial drainage. In the same way a dictum of Lord Campbell, in the course of the argument (r) to the effect that a tithe rent-charge can derive no benefit from the sewerage, while tithes in kind might, may be explained, although it is difficult to appreciate the distinction when the effect of the Tithe Commutation Act, 6 & 7 Will. IV. c. 71 (J) is considered. A summary, therefore, of the foregoing considerations points (-/) Phillimore Eccl. Law, p. 1751. (b) In 11. v. Goodchild, E3. J?. & E. 1 ; 27 L. J. M. C. 251. (p) It. v. Goodchild, E. B. & E. at p. :i5 ; 27 L. J. M. C. at p. 254. Tin- dictum is slightly different in language in the two reports. (d) By s. GO it is enacted "that every rent-charge payable as aforesaid, M. bead of tithes, shall be subject to Parliamentary, parochial and county and other rates, charges am! assessments wj like maimer as the tithes com- muted for such rent-charge have heretofore hern subject. Bating. 115 to these conclusions : That the authority of Callis would be given to the rateability of tithes to the sewers rate now that the distinction between the ecclesiastic and lay occupier is gone; that such view is shared by Wood in his Institutes ; that the authorities on ecclesiastical law and tithes only regard the matter as doubtful in the absence of a concurrence of authority, and that the expressions in the case of R. v. Goodchild (a) arc capable of the explanation which has already been given ; and thus, having regard to the principle of benefit upon which alone property can bo rated to the sewers rate under the 23 Hen. VIII. c. 5, and which is invariably insisted upon in all the decisions of the Courts, it would seem to follow that if the property from which the tithe issues is benefited by the works of the Commission, the tithe is subject to the sewers rate. Callis observes (b) that the glebe lands and houses of incum- Glebe, bents are liable to the sewers rate, and he continues, with an interesting discussion of archaic interest, as to the liability of copyholds, which he concludes in the affirmative, though, as he Copyholds. is careful to point out, there could be no decree of such land for non-payment of the rate. This difficulty was, however, met by the 7 Anne c. 10, which gave Commissioners of Sewers the requisite powers of sale which they had not before. The statute 23 Hen. VIII. c. 5, mentions commons of pasture, Commons. but Callis also adds that those who have common of piscary, turbary, or of pasture in great fens, marshes and wastes, may be charged to the sewers rate (c). As has been already stated, there must be a beneficial occupation (d). It may be a nice question whether a ferry is rateable to the Ferry sewers rate. There is an old case in the Book of Assizes (e), (a) E. B. & E. 1 ; 27 L. J. M. C. 251. (b) Callis, 131: Phill. Eccl. Law, 1873; Dalton Just. c. 73; Heme, p. 9. (c) Callis, 137. (<7) Mayor of Lincoln v. Overseers of Holmes Common, L. R. 2 Q. B. 482; 36 L. J. Q. B. 73. See ante, p. 110. (e) 37 Lib. Ass. pi. 10. A ferry is a franchise, Com. Dig. tit. Piscary B. ; Sheph. Touch, 231, 240; Newton v. Cubbitt, 12 C. B. N. S. 32; 31 L. J. t ° 116 Land Drainage and Sewers. which, appears to affirm the liability, and Gallis remarks, "and so for a I'ri ry one may be charged by this law" (a). The proper view of the question depends, it is submitted, upon whether the soil on either side is or is not (b) in the owner of the ferry, and, as the ease may be, so the tesl of benefil to be derived from the sewer -works must be applied. The statute23 Een. VIII. c. 5, especially mentions that profit of fishing may be assessed, and thai presumably on the ground of benefit to be derived ; it would therefore seem to follow, by analogy, that other profits of like nature may he chargeable to sewers rate. Parksand Callis (c) enumerates parks and warrens as being: rateable. Warrens. \ / i o Mortgagors. Under this discussion he observes that a mortgagor is not rate- able for his equity of redemption. This assertion as to a mortgagor must be taken to be subject to the fact -whether he is or is not in receipt of the rents and profits, for where a mortgagor not in actual possession but in receipt of the rents and profits of lands was charged with the repair of a sea bank, the Court held a presentment and judgment to be well founded. Cockburn, C. J., thus deals with the question : " The proceeding is against the defendant as the owner of this estate. It turns on I thai he has mortgaged the estate, but he is in possession, though not personally, by means of his tenant who pays a rent. That is quite enough to enable the Commissioners to exercise their authority as against him. They are not bound to inquire whether the legal estate is in him or whether he has parted with it to somebody else. They find him in possession of the estate, and he ' hath or holdeth ' the estate, and thereby satisfies the terms of the statute of Hen. VIII." (d) C. P. 210; R. v. Cambrian Rail. L. R. 6 Q. 13. 427; 40 L. J. Q. B. 1G0, and as such, comes within the definition of tenement given by Lord ('eke, Co. Litt. G a. (a) Callis, 137 ; also Heme, 5. (b) Peter v. Kendall, G B. & C. 703. (c) Callis, 138. (d) II. v. Baker, L. It. 2 Q. B. G21 j 30 L. J. Q. B. 212. Rating. 117 Among other descriptions of property Callis (a) speaks of annuities, offices, markets, and advowsons, all of which he con sidcrs not rateable. It is enacted by the statute of 23 Hen. VIII. c. 5, in the 9th 2.3 n C u. vin. c. 5. section, that the lands and tenements of the king are subject to the laws, etc., of Commissioners of Sewers. Thus, in an old case (b) where it appeared that there were Crown v ' property. 800 acres of land in the hands of the king which were not taxed as by law as they ought, it was held that the tax laid upon the other persons within the level was unjust and illegal, because by the not taxing of those 800 acres a greater burden was laid upon the rest of the land within the level than of right ought to be, for that the king's lands are taxable by the statute 3 & 4 Edw. VI. c. 8, which, by a general legislative direction, extended the provisions of the Act of Hen. VIII. so far as to allow a distress for a sewers rate to be taken upon the lands of the king (s. 2). The question of the liability of Crown property to the sewers rate was argued in the King's Bench in 1819 (c), where the contention of the plaintiff in trespass was, that he was a Government officer and paid no rent for his house, and that consequently the 3 & 4 Edw. VI. c. 8, s. 2, did not apply ; but it was successfully maintained by the Commissioners that the property was rateable, inasmuch as the statute did not limit the operation of 23 Hen. VIII. c. 5, s. 9, but was explanatory, and that the principle of benefit from the Commissioners" works, clearly showed the duty of a contribution by the Crown tenants with the public at large. It should be observed, however, that a distress for a sewers rate cannot, any more than the ordinary process, be levied within the precincts of a royal palace occupied as the residence of the sovereign (d). (a) Callis, 138. (b) Whitley v. Fawsett, Sty. 12, 13 ; cited in Callis, 22-1, note ed. 1GS5. (c) Netherton v. Ward, 3 B. & A. 21 ; Soadj u. Wilson, 3 A. & E. 248. (c?) Thus Kensington Palace; see Attorney-General v. Donaldson, 10 M. & W. 117 : 11 L. J. Ex. 338, for the reasons there given ; compare on this 118 Land Drainage and Sewers. Exemptions. The following exemptions from rating are stated by Callis : (1) Grounds lying between fclie sea hanks and tlio seas; (2) Grounds on an ascent and not on the level, because they receive no benefit; (3) Where one be tied to repair a bank, wall or other defence by custom, prescription, tenure or otherwise, all others be in law and reason exempted (a). He also alleges a curious instance from Lincoln- shire, in which Sir George Fitzwilliam asserted and established a custom in his town and manor of Mabblethorp, called Swiftage, to be exempt from the charge of sea banks, because, in consideration thereof, he and his ancestors had used in regard of their manor to do some other repairs as beneficial for the commonwealth (b). In like manner it is recorded that the owners and occupiers of lands and messuages in Poplar were exempted from the sewers rate, on the ground that by reason of their tenure they were bound to cleanse and scour the Poplar Ditch (c). PERSONS LIABLE. Occupier liable The sewers rate is essentially a landlord's tax, but as a general rule it may be stated that the beneficial occupier is rated, leaving him to adjust his liability with his landlord. But where the rate is to meet extraordinary expenses incurred for operations of a permanent character, the landlord is charge- able (d). point Attorney-General v. Dakin, L. R. 2 Ex. 290; L. It. 3 Ex. 288; 39 L. J. Ex. 213 ; L. R. 4 E. & I. App. 338. («) Callis, 222. (b) Sir G. Fitzwilliams' case, Callis, 223. (c) See Home v. Fanner, cited in Woolrych's Met. Man. Acts, 103, 2nded. li is worthy of remark that by the Rivers Conservancy Hill, 1883, it was ed thai where a Conservancy Board embraced a district which might be under a Commission of Sewers, power should be given to exempt the district fr any rates levied by the Conservancy Heard, if efficient works for the protection of the lands had been executed. (d) Callis, 140. Hating. 119 This principle is recognised by the Legislature in the Land Bpccialrato. Drainage Act, 18G1 (24 & 25 Vic. c. 133, s. 38) (a), where it is enacted that an expenditure exceeding £1,000 incurred for the improvement of existing works, or for the construction of new- works, is to be defrayed by a special rate on the owners of pro- perty (&). This section does not come into operation where the works have not been constructed, although expense has been incurred in preparations for their execution. In a case where a Drainage Board incurred expenses in obtaining surveys and plans for proposed works, which were to cost more than £1,000, but which were never executed, it was held that the occupiers and not the owners were liable (c). In the same section (38) it is declared that agreements Agreements between between landlord and tenant are not to be affected by the landlord and tenant. statute. There are numerous decisions of the Courts upon the inter- Sewerstaxnota Parliamentary pretation of terms introduced in contracts for tenancies as to tax. the payment of sewer taxes and charges ejusd&m generis. It may be noted that a sewers tax is not a Parliamentary tax, for a Parliamentary tax is one that is imposed directly by Act of Parliament (d). In a case (e) where marsh land was demised subject to the (a) Ante, p. 106. (b) The definition of owner, s. 38, is practically the same as that in the Public Health Act, 1875 (38 & 39 Vic. c. 55) and other Local Government Acts, and the decisions on those statutes are therefore useful for the interpretation of the term. (c) Griffiths r. Longdon and Eldersfield Drainage Board, L. R. 6 Q. LS. 738 ; 41 L. J. Q. B. 25. In this case the works were not executed, because the proprietors of half the district dissented, (s. 31) (<7) per Parke, B., in Palmer r. Earith, 14 M. & W. 428 : 14 L. J. Ex. 256, citing Brewster v. Kitchell, 2 Salk, 615. See also Baker v. Greenhill, 3 Q. B. 148; 11 L. J. Q. B. 161. (e) Waller r. Andrews, 3 M. & W. 312; 7 L. J. Ex. G7. Again, in t In- cases arising for instance under a Local Improvement Act, Payne u. Bur- ridge, 12 M. & W. 727, under the Metropolitan Management Act, 1855, Thompson v. Lapworth, L. llep. 3 C. P. 149 ; 37 L. J. C. P. 74, the rates were held to come within the terms of the covenants. But in Baker r. Greenhill, 3 Q. B 148; 11 L. J. Q. B. 161 ; Tidawell v. Whitworth, L. Rep, 120 Land Drainage and Sewers. condition that the tenants should pay and discharge all out- goings whatsoever, rates, taxes, scots. &c, whether parochial or Parliamentary, which should be chargeable on account of certain marsh lands (land tax excepted), it was held that an extra- ordinary assessment of Commissioners of Sewers for works of permanent benefit was within the meaning of the agreement, the Court observing that the word "scot" usually meant the sewers rate on marsh lands, which would be comprised in the terms " all Parliamentary scots," though not perhaps technically so, as not being imposed directly by Parliament, but by Com- missioners deriving their authority from an Act of Parliament. Apportionment. The 3 & 4 Will. IV. c. 22, s. 18, provides for the apportion- ment of sewers rates between outgoing and incoming tenant. Sewers rati- a In calculating the rateable value of property, the sewers rate the rent. is a legitimate deduction from the rent, though paid by the landlord. The principle of assessing lands to the poor rate is to ascertain the net rent which a tenant at rack rent would pay, he discharging all rates, charges and outgoings. Thus, it follows, the sewers rate, though paid by the landlord (or the owner or occupier) should be allowed, as a deduction from the rent. Accordingly, it has been held that the occupier of land which required occasional expenditure to protect it from floods, was not rateable to the poor at the same sum as the occupier of lands of similar quality and equal annual produce in the same parish 2 C. P. 32G ; 3G L. J. Q. B. 103 ; and Rawlins r. Briggs, 3 C. P. D. 3G8; 47 L. J. C. I'. 1S7, i lie payment by the tenant was excluded. The cases of Sweet v. Seager, 2 C. B. N. S. 119, and Cross v. Raw, L. Rep. '- 1 Ex. 209; 43 L. J. Ex. 144, are instances of words in covenants being held large enough to include payment of sewers laxes by the tenant. The most recent decision upon the subject is Budd r. .Marshall, 5C.P. D. 481; 50 L. J. C. P. 24, where the tenant was held liable to pay expenses incurred under the Public Health Act, 1875 (ss. 9 1. 98, L04), the words of his covenant bo pay being " all other taxes, rates, duties and ments whatsoever, whether Parliamentary, parochial or otherwise." See also Alluin r. Dickinson, 'J Q. B. 1). 632; 52 L. J. Q. B. l!)0; Wilkinson v. Collyor, 53 L. J. Q. B. 278. Rating. 121 who was not liable to the sewers rate; but that the former should be rated at that sum, minus the sewers rate (a). Again, the owner and occupier of a house and land has been Deducted Erom ■ poor rate. held entitled to deduct from the poor rate the general sewers tax imposed by Commissioners of Sewers, and the annual tax imposed by them for the maintenance and cleansing of sewers and works within the district, and the amount expended by him in the maintenance of a portion of a sea wall, which he was bound prescriptively to keep up under a presentment of a jury (b). Applying the same principle, a deduction was allowed to a tenant in respect of an annual drainage rate which was spent in drainage works, without which the land would have been flooded at times and considerably diminished in value. The rate was made under a local Act, by which it was made a landlord's tax, and the landlord had always paid it. It was held that the charge was an expense necessary to maintain the land in a state to command the rent, and therefore within the exceptions of the Parochial Assessment Act, 1836 (6 & 7 Will. IV. c. 96, s. 1), and that it was immaterial whether the charge was primarily leviable on the landlord or the tenant (r). But an owner who has undertaken a chai-ge on his land for where not deducted. the benefit of other lands and not merely for his own, cannot deduct the amount of the charge (d) . Where lands had been granted in fee, on condition that the owner embanked and kept from inundation all the lands in the level, and the land had been granted free of charge, but the ex- pense of keeping up the embankment ecjualled the rack rent, it was held that the owner was rateable for the beneficial occupation of the land, and that he was not allowed to deduct the amount of the charge (e). (a) R. v. Adames, 4 B. & Art. 6; 11 L.|J. M. 117. (b) E. v. Hall Dare, 5 B. & S. 785 ; 34 L. J. M. C. 17. (c) It. v. Gainsborough Union, L. It, 7 Q. B. 64; 41 L. J. M. C. 1. (d) K. v. Vange, 3 Q. B. 242; 11 L. J. M. 0. 117. (e) lb. 122 Linid DruuKKje and Sewers. OBJECTIONS TO KATE AND MODE OE OBJECTING. The ccrarse to he taken by a person aggrieved by :i rate im- posed upon liim by Ho Commissioners depends entirely upon the nature of the practice which prevails in the particular Court. When If the procedure is that of presentment by jury, it is open to present ment by . . _. . jury. the objecting party to traverse the presentment (a). lnis is TraverB0 - usually done at a subsequenl Court held for the purpose ; the parties may appear by attorney, and the jury, after hearing arguments and witnesses for and against the presentment, find their verdict, which either confirms or sets aside the present- ment which had been made by a jury at the previous Court. The proceedings are entered in the records of the Court of Sewers (b) and the decree there entered is final (c). If, how- ever, the party assessed fails to avoid the rate and distress issues, his remaining remedy is by action for illegal distress (d). In districts where the Commissioners have adopted the pro- visions of the Land Drainage Act, 1861 (24 & 25 Vic. c. 133), and no longer have recourse to presentment by jury, the person aggrieved by any rate made by the Commissioners is entitled (s. 47) to an appeal to Quarter Sessions. The justices are by that section empowered to confirm, annul, or modify the rate appealed against. There arc several requirements as to the mode of proceeding to the appeal, which have been considered (e) together with the powers possessed by the Court of Quarter Sessions of ordering a reference. Verdict. Decree. Land Drainage Act, 1861. Appeal to Quarter Sessions. ((/) A presentment made by Commissioners of Sewers upon their own survey or by their own surveyor is not traversable. See Callis, 216 ; " Laws of Sewers," 50, where inquiry by Commissioners and by jurj respectively is contrasted. The jury trying the traverse is called the "traverse jury" in some Courts. See Keport of Select Committee on Met. Sewers, July, 1823, p. 17. (b) Callis, 215—217. (c) For an account of the proceedings by presentment and traverse, see ante, p. 85, Survey and Inquiry by Jury. ((/) Post, p. 132. (r) Srr Ante, p. 'J5. Rating. 123 The statute 4 & 5 Vie. e. 45, which, as was seen (a), Pro. under 1 & o Vic. provided for the imposition of the General Sewers Tax c. 45. in gross upon a township or parish, contains some important directions as to the form of proceedings taken to question this rate. In the first place, after the rate is duly made and the surveyor has been appointed to make the right apportionment, the party upon whom the rate is made is allowed by the Act fs 2) to have ten days notice of this apportionment before the Ten days notice \ *V ■"*»»« j ii f apporuon- sitting of the next Court which is to finally decree the rate. If ment. no complaint is made at the next Court the apportionment becomes final. Supposing that the party objects to the rate or apportionment, either on the ground of its inequality or his non-liability, the Commissioners will then, at some subsequent Court, proceed to investigate the objection by examination of witnesses, &c, tendered by either side, and, upon the conclusion of the hearing, the rate and its apportionment becomes final (s.3). Passing on to the 8th section of the same statute, it is enacted that, on all appeals from any rate made under the authority of any Commissions o r Sewers, it shall be lawful for the Court before whom the appeal is made to amend such rate, Power to 1 x amend, &c. either by inserting therein or striking out therefrom the name of any person, or by altering the sum charged on any person without quashing the rate, although, if the Court think tit, they may quash the rate (b). It is a little difficult to say positively whether this section actually covers the case of all objections to rates, or whether it is limited in its operation to the particular tax provided for by this Act. It is curious that in s. 3 there is no mention of any particular course to be fol- lowed by the Commissioners upon the investigations there mentioned, and it may well be that this 8th section applies only to the functions of Commissioners who are entertaining the inquiry there specified. In the other view of the case, viz., (a) Ante, p. 102. (o) The section following (s. 9) is repealed. 124 Land Drainage and Sewers. Certiorari. that this section gives these extensive powers of .amending, &c, to Commissioners who may be engaged in trying with a second jury, (lie presentment of the first, it is not easy to see how in practice such powers are to be exercised. Another way of reviewing a rate is to remove by certiorari into the Q. B. Division of the High Court of Justice the order making the rate. It is not intended here to enter into this question of proceeding by certiorari (a), it being sufficient to notice that the application must not be delayed (6), that the Court generally speaking grants the writ, and that the removal includes the presentment, judgment, rate and order. ENFORCEMENT OF RATE (c). Distress. ( foods and chattels. 12 & 13 Vic. c. 50, s. 7, The payment of a sewers rate may be enforced by distress first on the goods and chattels, and secondly on the lands of the person in default. This power was originally conferred by 23 Hen. VIII. c. 5, s. 3, and the mode of execution was partially indicated by 7 Anne, c. 10, s. 3, but many points of difficulty were left open until 12 & 13 Vic. c. 50, intituled " An Act for further amending the laws relating to Sewers," laid down clear regulations for the recovery of sewers rates and fines. Section 7 of this statute contains the existing law, and is the authority from which Commissioners of Sewers mainly derive their powers for the enforcement of rates and fines. By this section, upon the complaint of any officer of sewers that any person (d) liable to the payment of any sewers rate fines, amercements, penalties or forfeitures, [which will be noticed (a) It is considered post, p. 166, under the head of Legal Proceedings. (b) 11. r. Tower Hamlets Commissioners, 5 Q. B. 357 ; 13 L. J. Q. B. 12 ; Dav. & M. 232. (c) All the powers vested in Commissioners of Sewers are exerciscable by Drainage Boards (2-4 & 25 Vic. c. 133, s. 67). (•I) Includes bodies politic, corporate, or collegiate (12 & 13 Vic. c. 50, s. 10.) Rating. 125 hereafter] has not paid, and lias refused fco pay the same (a), one Commissioner may issue Ins summons fco I lie party fco appear Summons. before the Commissioners fco show cause why he refuses fco pay, and upon proof of service of the summons and a refusal to pay, two Commissioners are to issue their warrant to levy t lie sum, together with the eosts of obtaining the warrant, by distress and sale (b) of the goods of such person (c). The warrant must specify the sum to be raised (s. 7), and Warrant, the question of whether a warrant is necessary is thus settled (). Power to seize the cattle of a stranger pasturing on the land Cattle of ° x ° stranger. it is considered would be conferred (<■), but not the power to sell (d), for the stranger is not in default; but the cattle of an assignee of a person rated may be sold, for he is not a stranger, but takes the land cum <>n (e). It has been noticed (/) that the 4 & 5 Vic. c. 45, s. 1, Tax in gross. authorises the Commissioners to tax a parish or township in gross, and by s. 2 to apportion the tax among the occupiers. The apportioned tax is declared by s. 3 to be recoverable by distress and sale of the effects of the persons respectively rated, but no distress of lands is authorised by this statute. A question might therefore arise as to whether the subsequent statute, 12 & 13 Vic. c. 50, s. 7, authorises a distress on the lands of such persons, but though the language of the latter statute is general, and might be said to be applicable to all sewers rates and taxes, it is submitted it is not; the 4 & 5 Vic. c. 45 is dealing with a special tax, the means of enforcing it must be taken not only as («) Callis, 1GG ; Com. Dig. tit. Sewers, 349. (b) Brown v. Hamond, 2 Ch. Ca. 250. (c) Callis, 185. (d) Callis, 192; 7 Com. Dig. tit. Sewers, 348. See, however, per Roll, C. J., in Combs v. Cheny, Alevn, 92, disposing of a doubt entertained by him in Whitley v. Fawsett, Sty. 13. (e) Callis, 193. (/) Ante, p. 102. 130 Land Drainage and Sswers. specially confined to that tax, but as excluding other means of enforcement (a ). Cost,&c.,of In the same way costs, charges and expenses of the Commis- Conunissionor >. sioners and their officers ma}, after the same are decreed, lie levied en t he goods and eliattels of the person ordered to pay, and in default of distress of goods the same may he levied on his lands, tenements and hereditaments within the Commission (6) as under 12 & 13 Vic. c. 50, s. 7. The latter part of this section (<■) is almost identical with L2 & 13 Vice. 50, s. 7, and t he same observations as to the distress and sale of goods and lands will apply (. contains this passage -. " Nos pro eo quod ratione dignitatis nostre regie ">l promdendum salvationi regni nostri Anglie circumquaque sumus astricti." See the recital in '2-i Hen. VIII. c. •">. Fitz. X. B. 113: Esle of EI3 Case, In Hep. 141 a ; Henly v. Maj or of Lyme, sujj a 1. 1 16 Land Drainage and Sewers. action bo repair defences as in this ease i a I. It must be remem- bered thai if a Commission of Sewers had had jurisdiction over this particular wall, the resuH migbl have been very different on the question of prescriptive evidence, and Cockburn, C. J., (6) remarks thai the proper remedy in such a case is to procure the issuing of a Commission, in which, by an equitable adjustment, t he interesl of all is secured. But frontagers Although, according in the law finis laid down, a frontager may pr ' °_ ° lands from the is not compelled to mail 1 1,1 in a sea- wall, vet if his land is exposed to inroads of the sea, and he or ( Jommissioners of Sewers acting in the interest of several landowners choose to erect or maintain a sea-wall, or to form any protective work for his lands against the sea, assuming that it is not unnecessary or improper, he is 1 1 ' ' t responsible for injury that adjoining lands may suffer from tin; consequences of their enterprise (c). At the same natural ,mu ' m> Wl 'l ^ H ' restrained from doing anything which will have bamer - fche effect of interfering with or destroying a natural barrier. Tn a case tried upon an information by the Attorney-General to restrain the defendant from removing shingle forming a natural bank, Fry, J., granted the injunction, and rested his judgment upon the ground of the duty of the Crown to afford protection to the land of the subject, and in the course of some observa- tions upon the case of Hudson v. Tabor, drew the distinction between the case of an artifical hank or wall and a natural pro- tection (d). Frontnpprs on The principle of the decisions relating to persons protecting ! idal river. (o) Fitz. N. B. 515; case of the Isle of Ely, LO Rep. Ill a. Before there is lien ice fco repair a trench coming from the sea, &c, there should be a writ ad quod damnum fco inquire what damage it will be fco the king and others, and Coke says that without a proper return the works would not be done. (b) Eudson v. Tabor, I Q. B. D. at p. 234 \ 45 L. J. Q. 15. at p. 109. (c) I!, v. Commissioners of Sewers for Pagham, 8 l>. & C. 355. (,/) Att. -Cm. v. Tomline, L2 Ch. D. 21 I ; 48 L. J. Ch. 593 ; II Ch. Div. 58; !'.» I,.. I. Ch. :>77. See also the report of a case, Williams '■.Nicholson, which was a prosecution Tor removing shingle from the foreshore at Wifchemsca, published l>> Bntterworfchs, L870. Liability to Repair, 147 lands fronting the sea is not applicable to the case of frontagers upon a river, although tidal (a). uszrs in: i axd ownership. Callis also mentions usus rei as a ground of liability, and U»u»rei, illustrates it by such instances of user as that of a river for boats, liberum passagium, a ferry, or an engine for drawing water, citing as Ins authority the Lib. Ass., where occurs a case of persons bound to the repair of the river because of their ownership and right of piscary, and the liability asserted of townships having a right of passage through the river (b). Ownership (c) of a bank or wall he also classes with iisits rei, Ownership, and frontage ('/) but he is careful to note that these obligations to repair only exist in default of a better ground of liability, such as prescription, custom or tenure. At the present time, how r ever, no common law liability can be said to exist in respect («) Att.-Gen. v. Earl of Lonsdale, L. K. 7 Eq. 376; 38 L. J. Ch. 335, citing the case of R. v. Commissioners of Sewers for Pagham, 8B.& C.355. (b) 120-122. See the case commented upon and explained by Cock- burn, C. J., in Hudson i>. Tabor, 1 Q. B. D. p. 232, 233 ; 45 L. J. Q. B. 190, at p. 198. See also 38 Lib. Ass. pi. 15, Case of Bridges, 13 Rep. 33. (c) In the case of Inhabitants de Oldberry v. Stafford, 1 Sid. 145, it was moved on certiorari to quash an order of Commissioners of Sewers on J. S. to repair the flood-gates of a mill, but it appearing that the prosecutor was the owner, the Court held that he ought to repair. In R. v. Matthias* 2 Jur. 13, one of the objections to a presentment to repair a bank was that the person charged was owner, and that he had erected it for his own benefit 25 years previously. The Court quashed the presentment on other grounds, and the point was not decided. See also Syson v. Johnson, 8 B. & C. 795. ( I l~ Land Drainage and Sewers. of usus rei and ownership, any more than in the case of Frontage, which as we have seen, the Courts refuse fco recognise (a). EXONERATION PROM LIABILITY. Exoneration In ordinary cases, persons bound on acconnl of any of the f ri mi liabilit v. . . , , ',- above reasons are exonerated d an extraordinary high tide, Extraordinary tempest, or vis majoi overthrows the defence which they are liable to maintain or repair, provided they are not in default. In such case the expense hills on the level (li). A1 the same time, in the face of authorities which undoubtedly appear to supporl this proposition, there is a decision in the Queen's Bench w the year 1840(c) where it is said by Lord Denman, that a liability of a more extended nature may exist at law. That learned Judge speaks of the liability in these terms ; " After argument and consulting the authorities, we are clearly of opinion that a liability of a more extended nature may well exist by law. Many prescriptive liabilities to repair must have existed before the date of the earliest .statute for the issuing of Commissions of Sewers; many such may now exist where no Commission has issued. In such cases there is no legal reason to limit the liability by anything but the ability of the party liable on the value of the lands granted, as the case may be." And further, according to the authority of this ease upon a presentment against an owner For want of repair, it ought not, in (a) Hudson o. Tabor, I Q. B. D.225; t5 L. J.Q.B. 190; 2 Q. B. D. 290j 16 I.. .1. Q. B. 163, i ite, p in (6) Callis, 146. Etooke Case, 5 Rep. 99 b ; Keighley's Case, 10. Coke L39a; Griffith's Case, Moore, 68, id. 73; Co. Litt. 53; 2 [nst. 305; Com- minsi;. Massam, March, L98 ; R. l\ Commissioners of Sewers for Somerset, 8 T. I!. 312; It. v. Commissioners of Sewers for Essex, I B. & C. 477; se< also River Wear Commissioners v. ^damson, 2 Ap. Ca. 743 ; t7 L. J. Q. B. L93; \miii. Dyer, 33 a pi. L0; Nitrophosphate Manure Co. v. Lon. & S. Kath. Docks, 9 I'h. Div. 503 ; 37 L. T. X. S. 330. (c) R. v. Leigh, L0 A. A E.398; 2 P. & D. 357. Evidence of liability may I"' given from orders of Courts of Sewers, though not proved to have been carried into effect, sed queen as to the admissibility of presentments of juries. Liability to R&pai/r. 141) point of law, to be left as the sole question for the jury, whether the walls, &c, are in a eondition to resist ordinary weather and tides, but it is a question to be determined on the evidence, whether the proprietor was bound to provide against the effects of ordinary tempests only, or of extraordinary ones also. A case (a) of considerable importance upon the question of R. v. Fobbing liability to repair against damage caused by an extraordinary storm and high tide recently came before the Queen's Bench Division, and it seems desirable to dwell at some length upon the facts of that case, if only for the reason that the subject has not received judicial consideration since the year 1840. The prosecutor, who was the owner of certain lands within the jurisdiction of Commissioners of Sewers, upon which was a sea-wall, sued for a mandamus to reimburse himself for the expense he had incurred in repairing damage to the wall caused by the effect of the storm and high tide of 18th January, 1881. It was sought by the Commissioners to impose this extraordinary liability upon the prosecutor by evidence of certain documents which were found amongst the books and papers in the possession of the Commissioners, the most important of which were certain jury presentments (&). The first presentment to which the attention of the Court was directed was one of the year 1831, which alleged thai the sea-wall in question was in a ruinous and defective state (a) 11. v. Commissioners of Sewers for Fobbing Levels, 53 L. J. Q. B. (to be reported). The facts were stated in the form of a special case. (b) Among these documents was a draft of an affidavit in the hand- writing of the Commissioner's Clerk in the year 1791, which had been used for the purpose of applying for the issue of a new Commission, and which, in furtherance of the application, alloyed that breaches had been made in the sea-walls by inundation caused by an extraordinary high tide; but the Court were unable to infer from the language of the document that the tide in question was so high that it could not have been foreseen, or that there was no negligence on the part of the then owner, and it was remarked in the judgment that the allegations contained in the document might be coloured by the anxiety of the clerk for the renewal of Ins office. This evidence was set out in the special case, subject to the objection taken to it by the prosecutor. L50 Land Drainage and Sewers. and condition Eor wanl of due reparation and amendment. which was ascribed to the negligence and defanll of the owner of the farm, bul the owner's neglect appeared so clearly, Erom the evidence given before the jury, that the Couri held thai the presentmenl was no authority for the existence of a liability to repair against extraordinary occur- rence.-. There was another present nietit of the year 1836, after the passing of the statute 3 & 4 Will. IV. c. 22, which was in noli relied on by the Commissioners. 'The presentment alleged a Liability of precisely similar form to that which was so critically examined in the case of I J. v. Warton (a), and which, in that case, was a presentment under s. 13 of the Act (//). Commenting upon this presentment, the Court («) 31 L. J. Q. B. 265; 2 It. & S. 719. See also Taylor v. Loft. 8 Ex. 269; 22 L. .1. Ex. 131. (b) Sec. 13. "And whereas doubts have arisen whether a presentment (if a jury is net necessary on each and every occasion to repair defences and works within the jurisdiction of Commissioners of .Sewers, he it therefore enacted that, whenever, under any Commission now in force, or which shall hereafter issue, a jury shall have found and presented that any person, hotly politic or corporate, is or are liable to and ought to maintain and repair, or contribute to the maintenance and repair, of any defence, wall, bank ) sewer, or other work within the jurisdiction of the Commission of Sewers acting under or by virtue of such Commission, in respect of any lands, tenements or hereditaments, or common of pasture or profit of fishing, it shall not afterwards, during the continuance of such Commission, be uecessary to inquire by jury and obtain a presentment upon any subse- quent wants of amendments and reparation of the same defences, walls, banks, sewers, or works, or any of them, but such persons, body politic or corporate, so presented as aforesaid, and the owners and occupiers for the time being of such lands, tenements, or hereditaments, or common of pasture, or profit of fishing, shall he liable, from time to time, to maintain and repair or contribute to the maintenance and repair of such defences, walls, banks, sewers, and other works, according to such presentment ; and H hall and maybe lawful for the Commissioners of Sewers to decree, order and direct, the same to be maintained and repaired by such person, body politic or corporate, from time to time during the continuance of such commission accordingly." Sec. 46. "And whereas in many cases the burthen of supporting, repairing and maintaining a common sea-wall, bank, sewer or other work ma;, be divided among divers persons, each of whom may be liable to the repair of a certain portion thereof; and in order to avoid the necessity of Liability to Repair. 151 observed as follows: "Tins presentment appears to have been made under the combined operation of ss. 13 and 46 of that Act, but it does not appear at this time that the sea-wall was out of repair, and we are of opinion that that section floes not warrant a presentment of liability to repair only where the wall is alleged to be out of repair, and that if the wall is out of repair in part it only warrants a general present- ment of such parts as may bo out of repair. There is no power to traverse a presentment where no default is alleged, and it is obvious that a trial of a presentment where no defauN was alleged, would impose an intolerable burden on the person supposed to be affected by such presentment, as it might happen that no default would occur while they continued owners." Pausing at this point, it is worthy of note that neither in this case nor in R. v. Warton (a) was any objection taken in the argument to this form of the presentment, and, as is remarked above, the presentment in both instances is verbatim the same. The view, therefore, taken by the Court of this section seems to show that where a presentment is once made against an presenting each such person separately in the respect of the non repair of such common sea-wall, bank, sewer, or other work, be it further enacted that it shall lie lawful for any sewers jury, bailiff, surveyor, expenditor, or ot her person, to present the whole of such sea-wall, bank, sewer, or other work respectively, or such part thereof respectively as shall at any time be out of repair or require cleansing, and to allege in such presentment what persons or bodies politic or corporate, are liable to the repair thereof, and also to specify what part or portion of such sea-wall, bank, sewer, or other work each such person, body politic or corporate, is bound or liable to repair, without making a separate and distinct presentment against each such person or body politic, or corporate ; and upon twenty-eight days notice of such presentment to be left with, or at the last or usnal place of abode or office of such person, body politic or corporate, each such person, bod} politic or corporate, shall be at liberty to traverse the allegation contained in such presentment as to his liability to the repair of such part of such sea-wall, bank, sewer, or other work as in such presentment is alleged against him; and the trial of such traverse shall be thereupon tad as if such presentment had been solely and exclusively made against such person, body politic or corporate, so traversing the same as aforesaid. ' (c) Supra. L52 Land Drainage and Sewers. owner in default, and that presentment has shown a want of repair, an order in virtue of this section can be made upon the same owner in respect of subsequent defaults; audit is presumed that an order Eramed tinder s. 1:1 of :'> A- I- Will. I V. c. 22, which there was no power to traverse, cannol now be the subject of an appeal to Quarter Sessions under the Land Drainage Act, Hdl. inasmuch as it is not an order which they (the Commis- sioners) might, 1 > 1 1 1 for s. 33 of the latter Act, have made with present ment. Another general presentment was made in L861, which was held by the Court to lie open to the same objection-, as that of i he year 1836. In 1874, the owners of the land, bound, ratione tenurce, to repair, were ordered to raise the height of the wall in con- sequence of (he damage caused by a tide higher than any before recorded, ami the owner- did the repairs in question; t he Court, however, declined to accept such evidence as sufficient to establish t lie fact from a proved usage that there was a liability to repair against I lie act of ( rod. It was pressed by counsel in argument for the Commissioners thai the fact that so far as could be gathered from the records extending back to I7 m 2'.\ no repairs had been done by the level, and thai damage in thai interval must have occurred at times from the act of God, pointed to the existence of the extensive liability con- tended for; but the Court held that it was ipiitc as reason- able to conjecture thai aothing of an extraordinary character had happened between L729 and 1881, as to suppose that it had taken place, and repairs had been done by the frontagers with- out any trace being left on the records of the Commission; and further, that aothing one-lit to be presumed against a frontager, who was virtually defending himself from anattempt to impose upon him a large and indefinite liability, and that the evidence to satisfy the Court should be such as would satisfy a jury of reasonable men upon the trial of a traverse of a presentment. From the evidence therefore of which this Liability to Repair. 153 outline is given, the Court declared thai the Commissioners of Sewers had failed to prove that the prosecutor was liable to make good all damage, however caused, and that the liability only extended to damage which could be traced to the negli- gence of the prosecutor or his predecessors. It is also important to observe certain propositions of law w hich may be deduced from the judgment in this case. (1.) In establishing the liability of a frontager, the onus probandi is upon the Commissioners, who must show from usage the extent of the liability, whether arising by tenure, prescription, or custom, and that the damage which it is alleged the frontager is bound to repair, is such as falls within the ambit of the liability so made out. (2.) When repairs have been executed in accordance with the presentment of a jury, or an order of Commissioners, until the presentment is successfully traversed, or the order appealed from reversed by the Court of Quarter Sessions, or either pre- sentment or order is quashed on certiorari, the presentment or order stands, and while it stands, a mandamus to reimburse will not be granted by the Court ; but where repairs have been done on the direction of the marsh bailiff or other officer of the Commissioners, the mandamus will go to reimburse the frontager for expenses so incurred (a). (3.) The question of liability to repair, whether against ordinary or extra- ordinary occurrences, is for the jury, following the decision of the Queen's Bench in 1839 (b). And accordingly, where the practice is under the Land Drainage Act, 1861, it is within the jurisdiction of the Commissioners to make an order of like tenor with the finding* of a jury. Callis also mentions other instances where, in his opinion, Extingui8h- ment of tenur liability would, of necessity, be cast upon the level, e.g., where the lands in respect of which the obligation arises are " over- thrown by the sea" (c) ; where the tenure becomes extinguished ; (o) 11. v. Essex, 8 T. E. 312. (6) E. v. Leigh, 10 A. & E. 398. (c) Keighley's Case, 10 Coke, 139 a. 154 Land Drainage and Sewers. [nsufficiency and the land escheats ; where the holder of the lands is unable, ■ ■I estate. or incompetent, to make; the repairs; or where lands are held by yearly paymenl of ten shillings towards the repair of a wall, and the money will not defray the charge (a). Construction of The liability by prescription, ratione tenures, &c , becomes new wnrk. ..,,.„ extinguished it a new work is erected in lien of the one to which the prescription, &c, attached, and it is submitted that any substantial (b) alteration of the structure would, in the same way, determine the obligation. COMMUTATION OF LIABILITIES. Commui All these liabilities may now be commuted (c), (24 & 25 Vic. of liabilities. c. 133, s. 3-1), the Commissioners have first to obtain the con- sent of the Inclosure Commissioners (d). The commutation may be by way of gross or annual charge on the land, which is recoverable as a tithe rent-charge, with priority over other in- cumbrances (s. 35), and the record of snch charge is to be deposited in the office of the Clerk of the Peace of the County (s. 36). All existing liabilities of this character are saved, un- less thus commuted, and the rates to be levied under the Act are to be made only for purposes to which such liability does not extend (s. 37), so no one bound to repair ratione tenurce escapes his liability by refusing to commute, nor can the Com- missioners relieve him of his liabilities at the expense of the level (e). («) Callis, 145, et seq. See also I!, v. Leigh, supra. (b) Callis, 148. Instances of exemption from liability to contribute to the rates of the level, are noticed mile, Chap. Rating. (c) The principle and working of commutation under the Act are con- sidered in Chap. I., ante, p. 23. See the commutation sections of the Somersetshire Drainage Act, 1S77, set out post, Appendix C. ((/) Compare the enforcement of a rent -charge granted under the Land Clauses Act, 1845, s. 10, in lien of payment of a gross sum. (<0 ib. Liability to Repair. ENFORCEMENT OF LIABILITY TO REPAIR. By 23 Hen. VIIT. c. 5, s. 3, the Commissioners, upon a neglect fco repair, may execute the necessary work without notice to the party, and inflict a fine upon him equivalent to t be rusts of the repairs. A further and better mode of enforcing liability to repair is ; ■• iwiii iv. ° J L c. 22, s. 1-). conferred by 3 & t Will. IV. c. 22, s. 15, by which, after seven days notice to the defaulting party (a), the Commissioners may execute the repairs, ami charge him with the expenses. In giving 1 tins further power of enforcing - liabilities to repair, Cumulative powors. the legislature did not repeal that conferred by 23 Hen. VIII. c. 5, s. 3, and consequently the Commissioners may proceed by either mode (b). In a decision upon a case (c), in which this very point arose, the Court observed that the effect of tin's loth section of 3 & 4 Will. IV. c. 22, was not to take away the procedure which existed under the statute of 23 Hen. VIII. c. 5, and that the object of the legislature was to give a cumulative mode of procedure, and that the Commissioners are at liberty to proceed in the same way as before 3 & 4 Will. IV. c. 22, was passed. The payment of these fines, as well as amercements and Enforcement of penalties, imposed by the Commissioners for not repairing, cleansing. Ac. may be enforced by distress and sale, either under 3 & 4 Will. IV. c. 22, s. 53, or the more comprehensive powers of 12 & 13 Vic. c. 50, s. 7 (d). («) Corporations arc included in this section, as well as by the general interpretation section (s. 60). (h) There is also a writ of distringas ad reparandvm, mentioned by Callis, p. ls:s. in which case the distress can only be taken within the districts of the Commission. See Lib. 8 E. 2. Fit/. Avowry. 2.V>. (c) R. v. Baker. 1,. II. 2 Q. B. 621, at p. 629; 36 L. J. Q. 15. 242. ( & !• Will. IV. c. 22. s. 55, the costs, charges and expenses of the Commissioners and their oliieei's, which would include the expenses incurred under s. 15, may, after the same are ordered by decree, be levied on the goods and chattels of t lie person or body corporate ordered fco pay. But as 12 & 13 12& i:i vic ^''*- ''■ 50, s. 7. embraces the various charges above referred fco, the powers of enforcement conferred l»y that section will in all these instances lie found Sufficient (a). c. 60, s. 7. payment of a fine incurred under 23 Ilea. VIII. c. 5, s. 3, or expenses incurred under :'> & 1 Will. I V. c. 22, s. L5, may, in default of a sufficiency of goods and clan t els. be Levied on any lands of the defaulting party situate within t he Commission. See this .section discussed in the preceding chapter, p. L24. (a) See the section discussed in the preceding chapter, p. 124. Ih-m-ni mill ['nmlties. I">7 CHAPTER VII. DECREES AND PENALTIES. PAGE PAGE Laws - - - -157 Ordinances - - - 157 Decrees. - - 158 Imprisonment - - 158 Pines - 159 Amercements - - L62 Kiil'orceiiient of Penalties 163 THE statute of 23 Hen. VIII. c. ">, in the 7th section, trives power to Commissioners of Sewers (a) to make laws, ordinances, and decrees. The definitions of these terms and their distinct ions are a matter of antiquarian interest, rather than of practical value. &awa. " Commissioners of Sewers," says Callis (6), " not only have power, jus dicere, but also jus facere." Therefore the Com- missioners may make laws for the particular purposes of the Commission, i.e. for the maintenance and improvement of existing works, for their alteration, and for the abatement of nuisances, and "the laws which the Commissioners shall make have the power of an Act of Parliament to strengthen and assisl them." An ordinance is a law of only secondary power, and is com- Ordinance*, pared by Callis bo a bye-law, which has little strength of itself, lint depends upon some Act of Pa rl iantcn i (a) Drainage Boards can avai] themselves of all the powers of Commis- sioners of Sewers, 24 & -~> Vic. c. 133, s. t>7. (b) At pp. 281 284. (c) ('.-illis. l's |. Ordinances are set out in Hall v. Ma ,262; and in Crossman v. Bristol Land Drainage and Sewers. ■ Dural Costs A decree is a sentence or judgmeni in a Coud of Justice, which is grounded upon a law or ordinance (a). [t is unnecessary now to consider the once vexed question as in the binding effect of laws, ordinances and decrees, mode by one set of Commissioners upon their successors, since 3 & 4 Will. IN', c. '1'2, s. 7, extended the effed of all laws, ordinances and decrees from one Commission to another, until they were altered or repealed, while now by the Land Drainage Act, 1861, all Commissioners of Sewers are continued in existence until superseded by Her Majesty. By 3 & 4 Will. IV. c. 22, s. 55, Commissioners of Sewers are empowed to order that the costs, charges, and expenses incidental to the making - and putting in force of their orders or decrees be paid by the person by whose default or for whose benefit the decree is made. PUNISHMENTS AND PENALTIES. Imprisonment. ( lontempt of ( !ourt. Imprisonment. Fines and Amercements. It was the opinion of Callis (6) that the power of punishing by imprisonment was conferred on Commissioners by the statute 23 Hen. VIII. c. 5, s. 3, and that they possess this power because they have a Court of Record (c). If they seek to punish for contempt, the offence must have been committed in (a.) Callis, 285. For the Form of decree see Appendix B, post. ('/) Callis, 1G9. " I suppose there will bewordsin the Commission and Statute which will hear t his construct .ion, which areas follows: "And all such as ye shall find negligent, gainsaying or rebelling in the said works, reparations or reformations of the premises, or negligent in the due execu- tion of this our commission I hat, ye do compel them by distress, lines and amercements, or by other punishments, ways or mean'. Ac. which words are strong enough, and targe enough, to authorise the Commissioners of Sewers upon just cause to imprison the body." (c) Callis, ih. Decrees and Penalties. L59 their presence, as for a mere disobedience to their orders, it seems they cannot imprison (")■ A ease is cited in Callis, in whieli Commissioners wer se severely punished Boran illegal imprisonment (6). The power of inflicting fines was also conferred <>n them i by 23 lien. VIII. c. 5, s. 3 (c), as a means of punishing their collectors who Failed to account, and persons who failed to pay " arrearages " of tax, and also those persons who failed to execute repairs for which thej were liable. "Recourse is had to [aiteu'of _ . . .. , • , exp this power to recoup the ( ommissioners the expenses to wnicb they have been subject in executing repairs which the persons liable have refused or neglected to execute. In such case it is customary for the Commissioners to execute the repairs themselves, and fine the party liable in the amount of the expenses (d). A report of an old case (e) states that a '"fine" was assessed on the village of D., and appointed to be levied on one man's cattle, but upon more accurate examination of i he report, it appears to have been a tax or assessment, and so illeg-al on the principle laid down in the ease of the Isle of Ely (/). In cases where Commissioners may imprison they may also (a) Inhabitants do Oldberry v. Stafford, 1 Siderfin, 145 : " Though Commissioners of Sewers being a Court of Record may imprison for a contempt to them committed, yet they cannot imprison one for disobeying fcheir order, I'm- this is contrary to Magna Carta, c. 29. Nullus liber homo imprisorietur, &c. Miner's Abr. tit. Sewers. See also Groenvelt r. Burwell, 1 Ld. Raym. 451-. (b) Heiley v. Boyer & Others, 2 Bulstrode, 197; Cro. Jac. 336. It must, however, be observed that in this case the offence of the Commissioners was one of contempt of the Court of Queen's Bench rather than of excess of jurisdiction. (c) Supra, note ('<). p- 158. (d) See an exampleof thisin It. v. Baker, L. R.2 Q, B.62] ; 36 L.J.Q. B. 242. A better mode of raising these expenses is, as has been pointed out ante, p. 155, by 3. 88. (h) Ex parte Taylor, :? Yonng A Jerris, 91. (. ■■) /•: parte Owst, '.1 Price, 1 17. (i) These fines would be enforceable by the justices according to the procedure indicated by that section, (-■) Callis, 176; tines may be assessed only in plenil Mtr/ Vic. c. 50, s. 7, it is unnecessary to do more than refer to the former statute. The powers conferred by the latter Act have been fully discussed under the title distress (b). The fines imposed by Commissioners of Sewers on a sheriff, juryman or witnesses under 3 & 4 Will. IV. c. 22, s. 27 (c), an; enforceable according' to the procedure of that section — viz., by the justices. By the Land Drainage Act. 1861, any person polluting any Penalties. watercourse within the jurisdiction of the Commissioners of A a ? c \I^ mage Sewers incurs a penalty, unless he bad a right to do so ('v acting oetine without l " ' • tfimiiftcation. wit Ik nit qualification by 3 & 4 Will. [V. c. 22, s. 4, which is to be recovered by action or information under the powers of thai sect ion (c). Penalties under The recovery of penalties under the Land Clauses Act. 1845, Lands Clauses ' ' Aet, 1845. is regulated by ss. 13G-149 of that Act (8 Vic. c. 18). (a) R. r. Wigg, 2 Salk. 40G ; Mayor of Blackburn v. Parkinson; 1 E. i\ ision. namely : (n) Order XXVI 1 1. (Amendment ) ; (b) Order XXXIV. (Special ease) : (c) Order XXXVIII. (Affidavits) ; (d) Order LII. (Motions) ; (e) Order I, VIII. (Appeals) ; (/) Order LXIV. (Time); (.,) Order LXV. (Costs) ; (!,) Order LXVI. (Notices, &c.) ; (/) Order LXX (non-compliance); Provided that Order LVIII. shall uol apply lo '/»", warranto. (b) The illegality must appear on the face of the presentments; the Court will not go behind them. Mayo County, in ,->■ Ir. ('. L. Rep. 392. (c) Corner's Crown Practice, p. 50. The statutes regulating this exercise of the writ are o & 6 Will. IV. e. 33, and Id A 17 Vic. c. :'•", extending the earlier statutes. See I!. u. Oastler, L. R. Q. B. 132 ; 43 b. J. (>. B. 42, Legal Proceedings. L67 proceedings taken under them by certiorari, e.g., The Public Ilea I (h Act, 1875. When, for example, by a local Act, Com- missioners were appointed to drain the Ten lands of Lincoln- shire within certain parishes, and the Act contained sections relating to summary proceedings before justices, and a clause prohibiting the removal of proceedings by certiorari, and a subsequent section gave aright to appeal to Quarter Sessions (a), it was held that the clause taking away the certiorari applied to the section giving the appeal to the Quarter Sessions. Accordingly it lias been decided that the prohibition only applies to the defendant and not to the Court; but where, upon the face of the proceedings, there appears an absence ol jurisdiction, it has been held that the prohibition does not operate ( h). The writ is granted upon motion to the Court to remove the Tiic writ. orders of the Commissioners, or inquisitions, or presentments found before them, unless it appears that injury to the public would result from the necessary delay to the works, &c, which may have been undertaken by the Commissioners (c). (<>) R. v. Lindsey, J.J. 14 L. J. M\ C. 151. (6) R. v. Gosse, 30 I,. J. 11. ('. 11 ; G Jur. N. S. 1369; R. V. Broughton, Local Board, 12 L. T. N. S. 310: so also where there has been an avoid- ance of jurisdiction, R. v. Wood, 5 E. & B. 40. See Corner's Cr. Practice, pp. Go-<3t>, and note (c) post. (c) The Jurisdiction of the Court of King's Bench peremptorily A.D. 1700. v ' •' _ . . R. r. Inh:ii>s. of and in all cases to inquire into the proceedings of the Commissioners, Glamorgan- was in former times a much contested question, and there is some I^J^^ pr little difficulty in reconciling the older decisions. In the year 1700 was p. 400 and cases decided the case of Bex. v. Inhabitants of Glamorganshire, Triu. T. 12, [l.^^ppl'ic;. Will. III. S.C. 12 Mod. 403; Salk. 146 ; 1 Ld. Baym, 5S0. where it is said 289-201; ' that "this Court will examine the proceedings of all jurisdictions created ^'^-' ' by Act of Parliament, and if they, under pretence of such Act, proceed to encroach jurisdiction to themselves greater than the Act warrants, this Court will send a certiorari to them to have their proceedings returned here, to the end that this Court may see that they keep themselves within their jurisdiction, and if they exceed it, to restrain them. And the exami- nation of such matters is more proper for this Court, as in the case in question, whether the Act of Elizabeth impowers the justices to raise money to mend the wears and to determine the doubts upon the Act. As to the cases of orders made by Connnissiouers of iSewcrs.. and of the Pens, 168 Land Dr linage and Sewers. notion for rule The motion (") is for ;i rule nisi, fco show cause (/-) of which it is unnecessary to give any notice, according to the present the Conrl is (Sir. 609; Com. Dig.; certiorari) cautious in granting certiorari, and firsi they make inquiry into the nature of the Eact, and what will be the consequence of granting the writ, because the country may be drowned in the meantime, whilst the Commissioners are suspended by certiorari, bui that is only discretionary executl •• the Partridge, J i Sid. 206, pi. 20. Court held that no writ could issue) as the Commissioners were vested with a "new judicature," 12 Car. II. c. LI, giving them authority to receive claims concerning the Pens, to decide upon boundaries, to make, decrees, and return them into Chancery. " Czo est novel judicature absolute en les Commissioners." But if they exceeded their statutory powers, all their proceedings would be void. " Mes si Us ne proceed accordant al statute donque tout est void (coram non jud/ice) ei les partie, sont alarge pur examine ceo in unaction post al Common Ley." And in the same case reported (2 Kel>. 82), the court likens the position of the Com- missioners of Sewers to that of Commissioners of Bankrupts. It may be stated generally that the Court seldom refuses to issue the writ where A.n. 1700. there appears to be no danger to the country from delaying the orders or Cardiffe Bridge, (j ecreeg ,,f the Commissioners, and for this purpose affidavits usually 1 frill K. 110. t accompany the application, alleging that no injury will happen m con- sequence; seethe case of Cardiffe Bridge, I Salk. L46, the same ease as Rex. v. [nhabs. of Glamorganshire, supra. The following language is used by Eolt, C.J., in Grenville v. College of Physicians, 12 Mod. 386: "We do take it, that where a Court, in its nature is a Court of record, a certiorari will lie to it by reason of the greal superiority of this Court; which may command them to send their proceedings before them up hither that it may he seen whether they confine t hemselves to their jurisdici ion ; which, if they exceed, this Court may correct them; and how conies it to lie granted upon convictions by Justices of Peace or orders of Commissioners of Seioers ? I remember formerly the Commissioners of Sewers were advised by counsel not to obey certiorari' s, bui they were all laid by the (a) The application is by affidavit) intituled in the Q. B. I). (Rules of Court, 1883, Order LXVIII. 4), in the preparation of which great care must he taken. The application may he made before the Vacation Judge ill Chambers. Reg. i\ Allen, :i.'i L. .1. M . C. !>H ; Corner Cr. Pr., p. 72. (6) Corner Cr. Pr. 86; iM'hitty Rep. Anon. I:i7. where Lord Ellenborough said — " It must be a rule nisi, for we do not remove the proceedings from Commissioners of Sewers in the first instance." The rule should be served upon the clerk, :5 & I Will. IV. c. 22, s. 57, and perhaps on those Com- inissioners who acted, Legal Proceedings. 1.69 practice of the Court. Rules of Court, 1844, rule 14. The rule R is as follows : No motion tofilea writ. — It shall not henceforth be necessary to make any motion to file any writ or other heels for following such advice, and obliged to obtain the king's pardon for the offence!" Jt lias been said that the issue of the wril is the right of flu- subject, and to support this view is the ease of Arthur v. Commissioners of Sewers for Yorkshire. There the plaintiff, who had Commiss been chosen clerk, was at a second meeting turned out, and he veel ".' ^T' 1 '" 11 for a certiorari to have the order returned, alleging the right of the 9 Mod. 331 ; subject. The Commissioners opposed the application, offering to read q§^' ' affidavits to show that the first meeting at which application was made was informal. The Court, however declined to hear the affidavits, and granted the certiorari, which was a writ of right, although one of the judges observed that " a certiorari was not a writ of right, for it' it was, it could never be denied to grant it, but it has often been denied by this court, who, on consideration of circumstances, may deny it or grant it at discretion, so that it is not always a writ of right. It is true, when a man is chosen into an office or place by virtue whereof he lias a temporal right, and is deprived thereof by an inferior jurisdiction, who proceed in a summary way. in such case he is entitled c > debito j ustii ice, because he has no other remedy, being bound by the judgment of the inferior judicature." The decision in this case corresponds with that in Hex. i\ Comms. of the A.D.16C3. Fens, 2 Keb. 43, where a certiorari was prayed to remove the Act of Parlia- m j S si ners cf mint, and their proceedings which are absolute without appeal, suggesting, the Fens, only without affidavit, that the Commissioners had proceeded unreasonably, ' which the Court granted as the right of the subject. Theremay be noticed at this point a curious case, R. v. Lewis, I J or. 151 ; W. W. & Dav. 60, where a R. c. Lewis. certiorari was granted to remove a presentment of Commissioners of Sewers, the Chairman confessing he was ignorant of the law on the subject. It may be concluded, from an examination of the above case-. and others of like import, that the issue of the writ is discretionary with the court, that it. is seldom, if ever, refused, and that as regards the general principle of granting it, an obvious distinction exists between cases where the removal of orders may or may not be prejudicial to the country. Thus, on this question of prejudice to the district, we find in the old case of Signeur cle Dunbarr, 1 Sid. 78, that a procedendo was awarded because the person found liable to repair had not repaired the bank in accordance with the order, Viner's Ab. 424, tit. Sewers : Rex. & Day v. Commissioners of Sewers (a case bearing upon prescriptive liabilities). 2 Keb. 129; Viner's A.b. 129 tit. Sewersj 7 Com. Dig. 351. Instances are found of the remedy of certiorari being expressly taken away by Act of Parliament, as in the ease of Birley t". Constables, &c, of Chorl- ton-upoii-Medlock, 3 Beav. 199, where a final jurisdiction was given to justices at Quarter Sessions, and their judgment was not to be removed by certiorari or otherwise. L70 Laud Drainagi and Sewers. proceeding returned into the said Courl [i.e., Queen's Bench , bu1 thesame shal] be filed at the Crown cilice without any rule first granted for thai purpose. Crown oifi.ee; new regulations, pursuant to the statute 6 Vie. c 20 (" I. Time for Unless specially provided for bv statute, there is no limi- applicatioii. i . i taticn of tune for making the application for the writ, the Courl judging of the reasonableness of the application, Looking to all the circumstances of the particular case (6). Re ignisanccs. It was formerly the practice of the Court of Queen's Bench not to require a recognisance from a, prosecutor who had obtained a certiorari to remove ;i presentment made by a Court of Sewers (c), but now by a more recent decision (. only applied to orders. &c, of justices, and that there is no general rule el' practice which requires application for certiorari to be made within si\ months el' the making of the order, &c, sought to be quashed. Upon this point the ease of tt. v. Tower Hamlets Commissioners, 5 Q. I!. :;.">7 : 13 L. J. Q. I!. 12 is remarkable; also upon the pleading by traverse and demurrer in the Commissioners' Court. (c) So stated by Corner. Cr. Pr. p. <'>:!. and referred to in R. V. Baker, 2S L. J. Q. B. :!77. (./) J!.-'. Baker, supra. Seealso E. i'. Wilks, 5 E. & B. 690; 36L.J.Q.B. - 12, as Lo the discretion of the Court. Iji'i/iil Proceedings. I * 1 other matters is not interrupted (a). Supposing the ordet Ac, to have been acted upon, and the Commissioners have knowledge thai they will be objected in, the Courl has still power to review them, although if they have been bond fide acted upon, and the parties have altered their position without being aware of (he objection, it may he a proper thing lor the Courl to consider whether in its discretion the certiorari should he granted to quash the orders (//). The "'rantiiK'- of the writ, it should here lie observed, is a Granting o) o o writ discrc- Diatter for the discretion of the Court, even in such a case as a tionary. fatal delect being patent mi the face of the proceedings which it is sought to bring before the Court (c). Moreover, tin; Court will take into consideration the conduct of the party applying for the writ — for example, if he has waived his objections to the proceedings in the first instance (d). After the issuing of the certiorari the return is made, which The return, is now hied without any further formalities at the Crown office (e). It depends upon the nature of the ea.se and the return of the writ whether the party moves to quash the orders, &C., which are now before the Court, or whether he traverses or pleads and goes to trial thereupon. As to the sufficiency and nature of the return (/) made by l he Commissioners, it may lie observed that the Court bestows a (a) See on this point The Protector v. Bruster, Sty, l l*>. (/>) Reg. v. Mayor of Sheffield, L. Rep. 6 Q. B. 652, at p. 660 j 1U L.J. Q. 13. 247. (c) lieu, r, Manchester and Leeds Railway, 8 A. & E. U3. (d) Reg. v. South Holland Drainage Committee, 8 A.. & E. 12'.'. Sei Corner, Cr. Pr. p. 'JO. (e) Again, upon the question of filing the return, the Eormalities of moving to file with other preliminaries have all been done away. See the cases upon this ancient practice cited in Woolrych on Sewers, ed. m. L864. (/) The return to the certiorari ought to return the original proceedings, Corner, p. 75. It has been beld insufficient to set out thetenor of the order, Askew v. llitylon, 1 D. P. C. 510; or to return a copy of it. Palmer r. Forsyth, 4 13. &C. JUL \7'2 Land Drainage - and Sewers, liberal construction upon it, and it has been said («) that the forms of Commissioners of Sewers are not so stricl as indict- ments, and again thai " the Commissioners shall have as much favonr as may be " ( o). Amendment of The return to the writ may be amended, provided that the " lmn - . amendment is effected during the term in which the return was made, for in a case where, in consequence of several exceptions being taken to the return, the Commissioners desired to amend, and their motion to amend was made in the term following, the Court refused leave, ordering cause to be shown on a later day why the return and proceeding should r.ot be quashed (c). Orders con- A.ssuruing then the certiorari to be before the Court, ami thai iii me (tins case discusses fully the old pleading and practice). Rex r. Wright, 2 Keb. 42 pi. 85; Anon. .Mar. 123, pl.202; .Mich. Car. I!. I!. Anon; -Mien v. Carter, Sty. 85, and cases there cited; Rex. v. J Licit', Sty. 00; Rex. v. Commissioners of Lincolnshire, 2 Barnard, 379 Hex. v. Apsley, Sty. 85; tnhabitants <\v Oldberry r. Stafford, 1 Sid. 115 ; ! Keb. 521 : 7 Com. Dig. 351. (c) Rex. i". Apsley, Sty. 85. The case is mentioned al length hi Callis, p. 291. (,l) Inhabitants de Oldberrj i\ Stafford, I Sid. L45; 1 Keb. 521; 7C Dig. 351 ; Callis, 290. This practice as to amendment of the return, and to the confirming and disallowing orders pro tamto must be taken to be of the imp si occurence, and to be practically obsolete. The Court may also moderate a fine set by the Commissioners, Hammon r. Roll, March 'JO'2. /, gal Proceedings. 1 7:'. Queen's Bench DiYision) by moving for an attachment againsi Attachment, them (a) and the same remedy is available for other offences. Order LXVIII. of the Rules of the Snpreme Court, 1--::, makes order LXV. as to costs applicable to all civil pi'oceedinga i on the Crown side of the Queen's Bench (//). Proceedings before the Commissioners of Sewers (not being indictments) which are removed into the Queen's Bench Division, it is submitted are "civi] proceedings," and consequently the ordi- nary law as tn costs, which leaves t hem in the discretion of the Court or Judge, musl be taken to apply. MANDAMUS. Commissioners of Sewers are subjeel to the jurisdiction of Mandamus, the Queen's Bench Division by the writ of mandamus in the exorcise by that Court of its superintending and controlling power over public officers and others who .are vested with the administration of law (c). Tt is impossible within the Hunts of the present publication to enter into a discussion either of all the principles regulating the granting of the writ or of the definitions of the particular cases to which it is applied ; it is only proposed here to instance a few of the leading- cases which more particularly affect the suhject of Commissioners of Sewers (. Eetley v. Sir John Boyer, Sir Anthony Mildmay and others; Cro. Jac.1,336; l' Bnlst. 299 (see iliis case also upon an indictment for a praemunire) ; Callis, 290. (M See Order LXVIII., Etnles of Court, 1883, ante p. 166. (c) Case of Cardiffe Bridge, 1 Salk. 146; S.C.,1 Ld. Raym., 580; anil the eases there cited. (i/) On the general law ami practice of this writ see Tapping on Man- damus; Boiler. X.l\. p. 199, ei seq.; Corner's Crown Practice, p. 205; Chitty's Statutes. 1th ed. tit. Mandamus; Bacon's A.b. Tit. Mandamus; Com. Dig. tit. Mandamus; Order LIU. of Rules of Supreme Court, Inn:*. •• The mandamus spoken of in the 8th sub-sot', of sec. :.'."> of t lie .1 ndicat are 17 1 I. "ml DraincLQi and Seiuers, Grantad where Mandamus is a prerogative writ, and is onlv erranted bv the no other *• D J lv,u ' llv - Couri where there is no other specific legal remedy, and where in justice there ought to be one (a). Tims, for example, "where such a remedy as amerCemenl remained to Commissioners of Sewers the wril was refused. A rule had been obtained by the Conservators of the Bedford Level for a mandamus to compel certain persons Liable rations tenures to do repairs, and was discharged on the ground thai by L5 Car. II. e. 17. s. 5, they had the powers of Commissioners of Sewer-. and could therefore put in force a remedy (&). So. too, where recourse could be had to an action or proceedings in equity, the Court, it is apprehended, would deny the writ (c), although the decisions of the Courts on this point are not at firs! sighl Act, 1873, is not tlic prerogative mandamus, l>ut only a mandamus which may be granted to direct the performance of some act, of something to bo done, which is the result of an action where an action will lie," per Brett, L.J., Glossop r. Ilrston and rslosworth Local Board, 12 Oh. D. p. Il'2; 49 L. .1. Ch. 89. (a) Hex l\ Barker, :: Burr, 1267, per Mansfield, ('. J.; Rex v. Bristol Dock Company, 1- East, -I-'-'. See Bacon's Ah. tit. Mandamus, V. 25G; Comyn's Dig. V. 27, 28. An indictment is not a remedy within this rule, being a proceeding in poznam .- Rex v. Severn and Wye Railway Company, 2 B. & A. 346; ea parte Robins, 7 D. P. C. 566; 3 Jur. 10:5; Rev v. Bristol Dock Company, supra. Where the remedy by certiorari is taken away, the couri will not grant a mandamus, which will in effeci gei rid of the clause taking away the certiorari, R. i\ Yorkshire, J.J. 1 A. & E. .">(;:{. (/,) i:. ,-. Gamble, 11 A. & E. 69 ; 3 P. & D. 122. See also Reg. v. Bristol Dock Company, supra conf. 1!. v. Stoke Damerel, 1 N'.A P. 56; 5 A. & E. 584. (c) Ex parte Robins, 7 I). P. C. 566; 3 Jur. L03 ; Reg. r. Hull and Selby Railway, 6 Q. I!. 70; L3 L. J. Q. B. 257; Reg. v. Port of Southampton Commissioners, 1 li. & S. "> : 30 L. J. Q. I>. 244 ; 7 Jar. N.S. 990, infra. In this latter case proceedings were taken by mandamus by the Corporation of Southampton to compel the defendants to take "the necessary and legal measures and proceedings for obtaining and recovering payment," and it was held by the majority of the Court that the mandatory part of the writ was not too large, as it did not neces- sarily import that the defendants were to commence litigation, which mi»h1 be unreasonable without an indemnity from the prosecutors. See also Cane 1*. Chapman, 5 A. & E. 647. As to the remedy in Equity, see I,'. ,-. Stafford, 3 T. R., per Buller, J., al p. 651. Legal Proceedings. 17*> easily reconcileable, nor will the Court grant the writ where the delay in applying for ii has been considerable (a). Where a certiorari does not lie to remove proceedings they cannot be brought indirectly before the Court by mandamus (h). If the Commissioners bave exercised their discretion the Queen's Bench Division will not issue the writ to control thai discretion or to order a rehearing of the case (c). Neither will the Court grant the writ unless it lias been preceded by n dis- tinct demand of the specific thing the performance of which is the object of the mandamus, and by a refusal of performance or conduct equivalent to that (d). It is necessary to show clearly by the affidavit in support of the rule that the party against Affidavit. whom the motion is made ought either by the common law or by statute to do the act required to be done, that he has been required to do such act, and that he has refused : the allidavit must make out a complete case, and show a title to the writ (r). The writ has been issued to command the swearing in of a offices. Commissioner of Drainage for certain lands; but where an office is full by an appointment to it made by those who primd facie have the power to appoint, and where there are means of trying the title to the office by action, the Court will, it has been held, not grant the writ (/'). The writ will also lie to compel the Commissioners to make to make com. tiensal , (a) R. u. Cockermouth [nclosnre, 1 Ii. v Ad. 378; Corner, p. 219; but nee :ils., Want v. Lowndes, 1 E. & E. 940; i".> L. .1. Q. Ii. 40. (b) !,'. t\ Yorkshire. J.J. 1 A. A E. .'-i'.::. Sei ante, p. 171 (a). (c) Corner, Cr. I'r. p. 209. (d) R. v. Bristol Company, 4 Q. 15. 162; :i G. & D. 38-J ; 12 I.. -I. < t >. B. 106; R. v. Sealoy, 8 Jnr. 496 ; e.i parte Thompson, 6 Q. B. 721. (e) Corner. Cr. I'r. 220. (/) 1!. v. Kelk, I Q. 15. 660; !) L. .1. Q. 15. 362; I 1'. A D. Is.": 1 G. & D. 127. The proceedings wen- under a local Act (30 Con. III.) for draining lands near Newark, and i he question was, whether the defendant ought to have admitted a person who was supposed to he elected to an office having reference to the drainage of the lands in question. See also 17(5 Land Drainage and Sewers, compensation, and it Is nol necessary for the claimant to demand any specific sum before he applies Eor the writ (a). In an important case upon tin- question of repair (which has been already disenssed) il>) a rule nisi for a mandamus had been granted calling upon the Commissioners to reimburse the prosecutor for the cost he had incurred in respect of the repair of damage thai had been caused to a wall abutting on his property, occasioned by an extraordinary high tide, and the Court said that, had he not been in default, or if the default had been doubtful, they would have granted the mandamus (c). This ease lias recently been followed by a decision of the Queen's Bench Division ( this, ante, tit. ( >ffieers. ( n ) ,,,, i;. ,-. Burslem Local Board, 28 I.. .1. Q. B. 345 3 29 L. J. Q. B. 242; 1 E. .V E. I<»77, 1088; 6 Jur. X. S. 696. (/.) 1!. v. Essex Commissioners of Sewers, 1 B. & C. 177; 2 I). .V 1!. 7110. (c) Ante, p. 1 t8, liability to repair. (,/) 1:. r, Fobbing Commissioners, ."<:! I.. .1. (,). 1!. (1 1 he reported), Lc East, L09, where see tonus of writ and return. This was an old ease which turned upon the inter- pretation of 23 Hen. VIII. c. 5, s. 17, and 13 Eliz. c. 9, as to the enforce- ment of a decree made by a Commission under a former commission and i In- Court refused the mandamus to the new Commissioners to direct a rate to be levied on the level. Compare with this K. «■. Nene (hit fall Commissioners, t M. & 1!. 647. The writ was issued to command an apportionment among certain parishes of a sum of money which had been assessed by Commissioners mulor a Drainage Act, Et. p. Whitaker, 9 B. & C. 648. See also Grindlej v. Barker, 1 B. & P. 229. (c) R. v. Norfolk Commissioners of Sewers. 20 L. .1. Q. lb 121. (,!) R. v. Bristol Dock Co., 2 Q. lb 64 ; 6 Jar. 216. (e) R, i\ Ouse bank Commissioners, 3 A. & K. 511. 178 Land Drainage and Sewers. Form of "'the Directors of the Bristol Dock Company fco make such mandamus. 1 • i -i • 1 alterations and amendments m the sewers as were necessary m consequence of the Boating of the harbour," was held to be in proper form, and thai H was no! necessary to call upon the Company for specific alterations, that being for their discretion in). Further, it is apprehended that a mandamus would he directed to a local body to maintain and repair any particular work which they have been specifically ordered to erect, even in the absence of any statutory provision as to the maintenance or repair, on the principle of the cases cited below (6). in pectionof In certain cases it is apprehended the writ will l>e issued to command the inspection of the Commissioners' rate-books, &c; but where it was claimed as of righj to inspect all entries of rales and matters not confined to the particular parish and the particular rate, the Court refused to grant a mandamus, (c) Eteturnto There is a noteworthy case upon the return to a mandamus "!IHS. which may he here mentioned. To a writ of mandamus obtained againsl the Commissioners of the Ouse Bank, a return was made that t he ( 'ouim issioners had executed all such works "as should lie or were from time to time; deemed necessary." This the Court held bad, saying that if the return bad stated that the Commissioners thought such and such things necessary, and that they had done them, that would have been a sufficient answer (cZ). Again, upon the validity of a return where the mandamus alleged a, want of repair, tin; defendants returned that they were not required by the statute to repair, and were not (a) 1!. v. Bristol Dock Co. 6 B. & C. L81 ; !) 1). & 1!. 309. (6) J!. t i. Severn & Wye Rail. Co., 2 I'.. .V A. 646; I!. v. [nhabs. of Kent, L3 East, 220; I!, v. [nhabs. of Lindsey, 11 East, 317; R. i\ Kerrison, 3 M. & S. 526. (<•) R. v. Commissioners of the Tower Hamlets, 3 Gale & D. !)2 ; :i Q. I!. 670; 11 L. J.Q.B.231. See upon this, Buller N. P. p. 200 (»). Reg. v. Ambcrgate Railway C pany, 17 Q. B. 957. (d) R. v. Ouse Bank Commissioners, :'> A. & E. 544. As to the nature of a return gonerally, see Corner, p. 228. The ret urn should be very minute, Reg. i\ Port of Southampton, 1 B. & S. 5 ; 30 I . .1. Q. B. 24 I. Legal Proceedvings. 1 7'd otherwise liable, and that as near as circumstances bad admit they had maintained, \ In like manner the Court will grant an injunction to restrain ji landowner from taking proceedings before justices of the peace on irregular notices under the Lund Drainage Act, Land Drainag 10 ° ' Act, L« 1. 18GI (a). An injunction was applied for at the instance of the Commis- sioners of the River Witham (b) against the erection and use of a steam engine by the Nocton Trustees for draining adjacent lands. The engine was to be employed instead of the windmills Which in that district had been used for draining the lands, and the Witham Commissioners based their application on the ground that the engine would, by throwing an increase of water into the Witham, probably damage the banks, and otherwise injure the drainage of land within their jurisdiction. The application was refused by Lord Brougham, who held that the injury was problematical, and n L. J. Ch. 726. The Public Health An, 1S7"> (:*s & 39 Vic. c. 55)^8. 69, requires the sanction of the A.ttorney-General to be obtained by local authorities before taking any pro* ceedings to protect watercourses within their jurisdiction from pollution by Bewasre. 182 Land Drainage and 8ewerB. which had beer formed by natural deposits and was a protection against inundations. Il was shown thai the embankment was the property of the lord of the manor, and had been conveyed to the defendants, bu1 evidence was given thai the Commissioners had for forty years exercised jurisdiction Over it, and had lined persons Eor taking material from it in contravention of their ordi- nances. Page Wood, V.-(\. held under these circumstances that the embankmenl was within the " view, cognisance or manage- ment" of the Commissioners, within the meaning of 3 & 4 Will. IV. c. 22, s. 47 (a). It, is also submitted thai Commissioners of Sewers are support. entitled tu restrain anyone from depriving works under their jurisdiction of lateral support, in accordance with the view taken by Cleasby, 15., in a case where the Metropolitan Board of Works claimed to be entitled to such a right of support for their sewer against the Metropolitan Railway Company (&). The judgmenl of that learned judge thus proceeds : — " I ought to say that I still retain the doubt expressed by me during the argument whether where works have been con- i meted, as in tin's ease, by a body acting with all the powers originally given by23 Hen. VIII. c. 5, and continued by various subsequent Acts, a right to lateral support ought not to be considered as conferred by those Acts, otherwise 1 should expect to find clauses enabling the Commissioners compul- sorily to acquire so essential a right. The consequence would be that, after a work of greal national importance- a sea-wall, lor instance — had been constructed under those Acts protecting a large area of country, an adjoining owner might dig down any depth below its foundations, and on the water rising the wall would give way, and the country be Hooded. The idea in (-/) Crossman v. Bristol A S. Wales Co. 1 II. .V M. 531 ; II W. I!. 081. (6) Metropolitan Board of Works i\ Metropolitan Kail. Co. L. R. i C. P. L93; 38 L. .I.e. I'. L72. See Wbolrych Metropolis Loc. Man. Acts, 2nd ed. p. 73. As to prescriptive righl to lateral support, Angus i\ Dalton, fl Air. Ca. 7lo : 50 L. .1. II. L. 689. Legal Proceedi/rigs. 1 - ; ! my in i in I is that, as there is a righi conferred to have the sewer, and there is conferred along with ii a righl to the under supporl and the lateral supporl by a libera] application of tin maxim that, when anything is granted whatever is essential to the enjoyment of it, is. if it e,-in be, granted also. It is true that the judgmenl of the Conn was againsl the plaintiff, bni thai case has recently been explained \>\ theCourl tit' Appeal (a) to the effed that the Exchequer Chamber would not say that there was an implied righl to lateral support because there was no compensation clause in the Act of Parliament . The principle of law, however, laid down by Cleasby, 13., in his judgment, which has been cited, seems to be fully affirmed throughout the judgments of Brett and Ldndley, L. J J. INDICTMENT. A remedy by indictment is available againsi Commissioners oi feewers in all cases where public bodies would be indictable (b) . Se^ Thus, in the language of Bay ley, J. (c), "if they made unneces- sary or improper works, not wild a view to the protection of the level, but with a malevolent intention to injure the owner of oilier lands, they would be amenable to punishmenl i>. criminal information, or indictment for an abusi of the powci (o) b\ re Corporation of Dudley, 8 Q. B. D. 86; 51 I.. J. Q. B. L21. This case was under the Public Eealth Act, 1875, and the result ot decision was the passing of the Public Eealth Act, L875 (Support of Sewers), Amendment Act, L883, li! & 17 Vic. c. 37. (6) Et. v. Birmingham & Gloucester Ry., 3 Q. B. 223; LO L. J. M. C. L36; R. v. Scott, 3 Q. B. 543 ; 11 L. J. Q. B. 254 ; R. r. Gt. Northern Ry., 9 Q. II. 315; L6 L. J. M. C. L6; li. t\ Betts, L6 Q. B. L022. The indictmenl can In- removed into the superior Court by writ of certiorari, and in such case the prosecutor has to enter into recognisances (16 & 17 Vic. i s. I 1 , li has been held thai a corporation was not within this statute, R, v. Manchester, 26 L. .1. M . C. 65, (<•) R. r. Commissioners of Sewers for Paghatn, BB & C : ''""' 184 Land Drainage and Sewers. vested in them." The ordinary instance in which an indictment would lie against a quasi-corporate body such .'is Commissioners of Sewers (a) would be for a common nuisance, e.g., any interference with the rights of the public as distinguished from private rights (6). The remedy can be preferred by indictment or presentment (/;). Nuisance to Any encroachment on or obstruction to a highway is mi N^bie river indictable nuisance (7; 5 B. & S. 150; Benjamin v. Stun- J,. K. 9 C. 1'. 400; ]:; I.. .1. ('. I". L62. (c) Hale de Portibus Maris, c. YII. 2 [nst. 701. Presentment for non- repair el' highways is now abolished by "> & 6 Will. I V. c. 50, s. 99. In Stephen's Digest of Crim. Procedure, p. L18, itis said that presentment is a more general term than indictment. (il) Stopping a water-course and thereby overflowing the highway. ( 'row n ( 'inuit ( lompanion, 376. (e) Hawk, P. C. c. 32, s. 1; Com. Dig.' tit. River; Hale, de Jure Maris, l't. i. r.v. 2, 3. (/) Hale de Portibus Maris, Pi.ii. c. 7; Lutw. L523. i i) I Hawk. P. ('. s. 11. ( h ) Bac. Abr. tit . Nuisance [a i (/) Dimes r. Petley, 15 Q. B.276; L9 L. J. Q. B. it'.'; R. v. Grosrenor, 2 Stark, 511. (/) R, ,-. Ward, I A. & E. 384. (it) 1?. r. lints. L6Q. It. 1022. Legal Proceedings. L85 the Witham Commissioners, a verdicl of the jury negativing obstrnction was beld to be a verdict of not guilty (a). It has also been beld thai the .amount of obstruction may be so insignificant as not to constitute a nuisance (6). It is ao defence to such an indictment that although the work be in some degree :i hindrance to navigation, it is advantageous, in a greater degree, to other uses of the port (/■)■ The neglect to repair a river bank pursuant to a liability Ji " r '"' ' ratione tenurce (d), or a sea-bank pursuant to a liability arising out of grant is indictable (e). So, too, the straightening or enlarging of ancient weirs as well as the erection of a new one Weirs. is treated as a public nuisance by Magna Cart. c. 23. For such acts Commissioners of Sewers would be liable on indictment if committed in excess of their statutory powers, and even if within their statutory powers, it would be incumbent on them to show that they were acting reasonably within those powers, and doing an act absolutely necessary for the perform- ance of the object of the statute (/). Thus, where a Canal Company were empowered by Act of Pollution of Parliament to take water from certain brooks, which ;it the time of the passing of the Act contained pure water, and the water afterwards became polluted by drains, and the Canal Company continuing to take it occasioned a nuisance by storing the polluted water in their canal, the Court of Queen's Bench held the Company to lie indictable on the ground that the Act of Parliament did not directly authorise the nuisance, as in R. v. Pease ( I!. & C. 566. (,/) R. t\ Earl of Cadogan, 5 B. & A. 902. (e) Eenly v. .Mayor. Ac. of I, vine Regis, 5 Bing. 91 ; 3 B. & Ad. 77; 1 Bing. X. C. 222. (/) R. o. Proprietors of the Bradford Navigation, 31 u. J. Q. B. 191. ( ; /) I 15. & Ail. 30; 2 L. J. .M . ('. 26. ]s<; Land Drainage and Sewers, smoke, Ac, caused by the working of the engines of a railway authorised by Ad of Pai-liament. The obvious distinction between the case of the Canal Company taking water for their canal, and the Commissioners of Sewers committing sonic ad of nuisance within the powers of their Ads, would be thai the former body were committing a nuisance for the purpose 03 their adventure, while the latter body would presumably be acting in the performance of a duty they owed to the public, namely, thai of protect in g the land from Hood ; nevertheless it is useful to notice the decision as showing that when once a public nuisance is established, it lies on the party causing it to show a justification, and that the Courts will require the jurisdiction to be dearly demonstrated (a). H 0W laid. An indictment against Commissioners of Sewers would have to lie laid in the name of one Commissioner or their clerk. By 3 A 4 Will. IV. e. 22, s. 57, it is enacted that Commissioners of Sewers may sue or he sued at law or in equity for or con- cerning any matter or thing "whatever in the name of anyone Commissioner, or in the name of the clerk. These words are large enough it is submitted to include Indictment, and this view is strengthened by the language of the succeeding section (58), which enacts that such Commissioner or clerk shall he reimbursed the costs, damages and expenses which he shall he put to in consequence of any such action, suit, hill, informa- tion, indictment or prosecution. This statutory power avoids any difficulties which might lie raised as to the manner of laying indictments by or againsl Commissioners oi Sewers by reason of their ipiasi-corporate status (&). In tin' ease of an indictment, it would for many reasons be more convenient thai the Commissioners should he indicted in the name of the clerk. It is provided by s. 59, that the clerk may he a witness, though the indictment is preferred (•. Bristol and S. Wales l,'\ I II. & M. 531 ; 11 W. K. 981. lss Luiul Drainage and Sewers. 2-t&25Vic.07 l!\- 24 & 25 Vic. c. 97, s. 30, any malicious injuries to sea or s. 30. ■ ' J fiver banks, or to quays, flood-gates, harbours, &c, is made a felony ; and by s. .'!1 the unlawful removal of piles or other materials used to secure sea or river banks, quays, harbours, Ac, or the unlawful and malicious opening of floodgates with inieiit to obstrucl aavigation is a like offence. There Is a report of an old case (a) where the defendant moved to quash an indictment taken before Commissioners of Sewers for penning up the water in t he river at his mill, whereby the highway was Hooded. The indictment being moved into the King's Bench by the defendant, was there ipiashed on the ground thai a nuisance to the highway was not within the: jurisdiction of the Commissioners of Sewers. HowMd. The indictment would. be preferred in the name of the clerk or one Commissioner, in the same way as an indictment against the Commissioners. It is discussed in the pages of Callis (6) whet her Commissioners of Sewers may he indicted for sitting without proper qualification, and he concludes that they may not (although Crofton's case ( '■ ) was tot he cont rary ). on t he ground that where the statute appoints a penalty for doing a thing which was no offence before, and appoints how it shall be recovered, it shall he punished by that means and not by indictment (d). The penalty for acting without qualification is tixed by ;> & 4 Will. IV. c. 22, s. 4, and the means of re- covering it are there indicated (e). This is only one instance of an application for the formidable writ of praemunire against Commissioners of Sewers, and that was (d) Lt. y. Eide, Sty. 60. Though it would appear from this case that. Commissioners of Sewers were in the habit of trying indictments in the sense iii which bhe proceeding is now understood, yet it is submitted tins is not the case, but that the defendant in I!, v. Bide was brought before fchem on presentment. Presentment is a more general term than indict- ment, see Stephen Crim. Proced., p. 118. (b) See p. 249. (c) 1 Mod. 34. (d) See Dwarris on Statutes, p. 537; Maxwell, p. 366. (r?) See Qualification of Commissioners, ante, p. 39. Writ of nra munirt Le ; Uttlev c Todmorden Local Board, 44 L. J. C. P. lit ; Hiscoe v. Great Eastern Hail. Co., L. I!. If. Eq. 636; Brine v. Great Western Kail. Co., 31 L. .1. Q. B. 101 ; Bramlen v. Met. Bd. of Works, 13 C. B. N. S. 768; Clothier u. Webster, '.> Jur. X. S. 23. (ut which has been authorised by the Legislature, then, though it is a damnum to the party affected, it is no longer an injuria, and the loss must fall on him. To prevent that injustice the Legislature has said in most of ill.- A.cts authorising interference with private rights, that the parties affected shall he compensated whenever bhej are injured by the exercise of the powers given by the statute, and where the thing done is authorised by the statute the action at common law is taken away, and it is the object of compensation only. Where, however, the act done is not authorised by the statute, the action at common law remains." Liability Their liability depends upon the construction of the statute statute? "^ statutes under which they act. The correct rule of inter- pretation of such statutes may be said to bo that unless the Act of Parliament has expressed otherwise, the intention of the Legislature is t hat t he body thus created by the statute shall be under the same obligations as the general law lays upon an ordinary individual under the same circumstances (//). In Forbes /■. the Lee Conservancy Hoard (c), the defendants had („) i N,.\ V Rep. 394. See also R. i\ Burslem Local Board, 28 L. J. Q. B. 345; 29 L. J. (y H. 212; 1 K. A- K. 1077. IONS ; Ferrar r. Commissioners of Sewers Eor London, L. K. I Ex.lj .'58 L. .). Ex. 17:5. This last-mentioned case was reversed on appeal, L. R. I Ex. 2l'7 ; :is L. J. Ex. 102, upon the question as to whether s. 68 of the Land Clauses Act. L845, was incorpo- rated with the local Act. (h) Mersey Docks v. Gibhs, L. R. 1 E. & I. App. 93; .'Sr> L. J. Ex. 22."». (r) 1 Ex. Div. 110; 48 L. J. Ex. 102. Legal Proceedi/ngs. l'.M a discretionary duty to remove obstructionSj bul they bad nol removed them, and damage was occasioned to the plaintiffs by non-removal. The Courl beld thai theaction could ool be main- tained, for the defendants were nnpaid trustees Eor public purposes, and that theirduty to remove the obstructions under the statute was only discretionary, and nol compulsory, and the learned judge appeared to distinguish this case from that of the Mersey Dock Trustees v. Gibbs (a) on the ground (inter alia) that the language of the Act of Parliament was very different. And where a public body acts in discharge of a public duty. and the injury occasioned is the inevitable result of what Par- liament has expressly authorised to be dime', an action will fail (&). But the Commissioners, being entrusted with the execution Negligence, of certain works, musi use pi*oper care and reasonable skill, For persons injured by their negligence will be able to maintain an action. Instances are given in the note below which, out of a large number of cases illustrating this proposition, appear to be especially in point as affecting Commissioners of Sewers (c). («) For cases where the duty imposed is express and liability follows upon the neglect of the duty, see Bartnall v. Rydo Commissioners, I B. & S. 3G1 ; 33 L. J. Q. B. 39; and Ohrby v. Ryde Commissioners, 5 B. & S. 743 ; 33 L. J. Q. 15. 296; while for the discretionary instance see re Newport Bridge, 2 E. & E. 377 ; 29 L. J. M. (..'. 52 ; ami Parsons v. St. Matthew, Bethnal Green, L. Rep. 3 C. P. 56; 37 L. .1. C. I'. 62. (6) Dixon v. Met. Heard of Works, 7 Q. B. D. U8j 50 L. .1. Q. B. 772 (c) Where bricklayers, acting under the orders of Commissioners of Sewers, were repairing a public sewer, and in course of their work did damage to a n< ighbouring bouse, it was held that Commissioners of Sowers and persons working by their order, in the course of the necessary repair of a sewer in the ueighbourhood of houses, are bound to take all such proper precautions Eor securing them, and to shore them up, if necessary, as skilful persons would do, Jones i'. Bird, 1 D. A K. 197; 5 B. & A.. 837; see Drew y. New River Co., • > C. 4 I'. 75 1. 'This caa aidorable importance as bearing upon t he general proposition that the defendants, (Commissioners of Sewers), in discharging a public duty,hadact d I'nl-. and were therefore Mot liable to an action. Bayley, J., then' said : " As to the merits of the co e, it is contended the defendants are protected if they acted b >n > fide, and to the best of their skill and judgment. Hut !<);> Land Drainage and Sewi rs. Commissioners 1 A public body Like Commissioners of Sewers are answer- able Eor the negligence of their servants just as if they were acting as the servants of a private individual and not for a corporation incorporated Eor a public imrjH.se (a). commissioners' Neither will the Commissioners be excused from liability by reason of their having employed a competenl contractor to servants contractors. that is nut enough; they are bound to condud themselves in a skilful manner, and the question was mosi properlj lefl to the jury to say whether the defendants had done all thai any skilful person could reasonably be required to do in such a msc." Bui where Commissioners of Sewers were found nor guilty of negligence, although the probability of damage accruing would have been in some degree less if the sewer in question had been made otherwise, the courl gave judgmenl Eorthem.il being held thai the decision in Sutton v. Clarke, 6 Taunton, 29, in favour of public func- tionaries, who, withoul emolument, and acting bond fide according to the be > skill, are to be held harmless, was well founded. Grocer's Co. v. Donne,3 Bing. X.('.:U; :i Scott, 356; 2 Eodges, L20. Nevertheless, in the event of Commissioners acting bond fide, and being a public body l„, mill to discharge a public duty, without rewind and without funds, the} are liable for the negligence of those whom they-employ. Coe -. Wise. L.E. 1 Q..B. 711; 37 L. J. Q. B! 262 (Ex.Ch.); 7 B. & S. 831 ; 1 I L. T. X.S. 891. This case, which was decided upon 7 & 8 Vic. c. L06 (an Act for improving the Drainage and Navigation of the .Middle Level of the Fens), is in principle the same as the Mersey Docks and Earbour Trustees v. Gibbs L. 1!. 1 E. A: [.Ap.93; 35 L.J. Ex. 225, where the authorities are collected, and which is confirmed in Winch v. Conservators of the Thames. J.. Rep. 7 C. P. L58, affirmed L. Etep. 9 C. P. 378; 43 L.J. C. P. L67; see also Forbes v. Lee Conservancy Hoard, 1 Ex. Div. L16; 48 L. J. Ex. W2, and remark- of Pollock, B., at p. 1 2 k in addition fco these ca 68, there may be noted the authorities collected under s. L35 of the Metropolis Local Managemenl Act, L8 & 19 Vic. c. L20, by Mr. Woolrych in his work orj the Metropolis Local Management Act, 2nd ed. p. 7:?-7s ; sec also Gale on Easement, 4th ed. p. 11 I. (a) Mersey Docks v. Gibbs L. K. I E. & I. A.p. 115; 35 L.J. Ex.225. See also Forman v. Mayor of Canterbury, L. II. 6 Q. B. 214; tO L. J.Q. B. 138. In Scott c. Manchester Corporation, I II. A N. 59; 26 L.J. Ex. L32, it was held that a corporation employing workmen is responsible for the negligence of the men employed. Alderson, B., there says : " The person who selects the workmen is the party liable. Commissioners may gel rid of their liability by making contracts, but :f they employ their own servants and do the work they wrll he liable tor the acts of those servants." Srr Hall r. Smith, 2 Bing. 156; '.» Moore, 22ti: Harris v. Maker. I M & S., 27. As to the corporate nature of Commissioners of Sewers, see post, p. 194. Legal Proceedings. \'J-'> execute work ; but if they are able to prove satisfactorily that t he work was, in fact, done in a competent manner, and that the injury arose from some accident or the act of God, they will be not liable (a). Where they have employed an independent contractor, and injury is occasioned, as a natural consequence of the work which they have ordered to be done being executed without proper precautions, they will be held responsible. Supposing, however, the contractor to have been negligent during the process of carrying out the work in a manner which forms no part of the Commissioners' order, in that case the action would be against the contractor and not against the Commissioners (b). The Commissioners are none the less Liable in cases where they have done a negligent act in the first instance, but such act is separated from the injury done by the wrongful inter- vention of third parties. Thus by a Drainage Act for im- proving the navigation of the Middle Level of the Fens, Com- missioners were to construct a cut with gates and sluices to keep out the waters of a tidal river, and a culvert under the cuts to be always kept open, but in consequence of the negligent construction of the gates and sluices the waters of the river flowed into the cut, and bui'sting the bank, flooded the adjoining land. The plaintiff impeded the passage of the water at the lower end of the culvert, but the occupiers of lands on the other side removed the impediment, and so let the water through on to the plaintiff's land to a much greater extent. (a) Grote v. Chester & Holyhead Ry. Co., 2 Ex. 251, of which the principle is explained in Francis v. Cockrell, L. Rep. 5 Q. B. at p. 505 ; 39 L. J. Q. B. 113; 9 B. & S. 950. For an instance where a statute specially absolved from liability persons acting under the authority of Commissioners of Sewers (Metropolitan), see Ward v. Lee, 26 L. J. Q. B. 142 ; 7 E. & B. 426. The Court also said that the plaintiff's remedy was by action against the Commissioners as a body in the name of their clerk, and that damages would have been recoverable from the funds at their disposal. (b) Gray v. Pullen, 5 B. & S. 970, 9S1 ; 34 L. J. Q. B. 265 ; Bower v. Peate, 1 Q. B. D. 321 ; 45 L. J. Q. 15. 1 16. O 194 /,'///'/ Drainage and Sewers. The Court held that the Commissioners could not excuse themselves by pleading the wrongful ad of other persons, but thatthey were liable for the resull of their own negligence, (a) Commissioners Commissioners of Sewers are not, strictly speaking, a corpora- tion. They may be considered ;i qttasi corporation, and this term turn. has judicial sanction. (I>) Although possessing some incidents of a corporation, in the stricl legal sense of the word they cannot be termed one. The various Acts creating and clothing them with authority nowhere constitute them a corporation; but for certain purposes, such as holding lands (3 & 4 Will. IV. c. 22, s. 47), they have corporate powers (c). It should be observed that Drainage Boards, under 24 & 25 Vice. 133, s. 66, are made a body corporate, and Conservancy Hoards proposed to be established under the Rivers Conservancy Bill, 1883, were so described. :i> 1 will. [V. It has already been noticed that by 3 & 4 Will. TV. c. 22, c ■'■' ss 57 58 .v.i."' ' ss. 57, 58, 59, it is provided that Commissioners of Sewers may be sued at law, or in equity in the name of their clerk (<1) for the time being (e), or in the name of any one Commissioner, (a) Collins r. Middle Level Commissioners, L. R. -1 C. P. 279; 38 L.J. C. P. 236. (6) They arc spoken of as a quasi corporation in Grossman v. Bristol & S. Wales Rail. Co., L H. & M. 531; 11 W. R. 981. (c) Stracey o. Nelson, ' 2 M. & W. 535 ; 13 L. J. Ex.97. The case of the Conservators of the Tone v. Ash, 10 B. & C. 349, is instructive upon this point where the body in question, although not created a corporation by express words, were held to he one by implication. A> to the term "quasi corporate " and its application, see Witenell v. Gertham, 6 T. R. at p. 396. In Ruck i'. Williams, 27 L. J. Ex. 357; 3 II. & X. 308, Bramwell, I'.., describes the [mprovemenl Commissioners as a quusi corporate hod^ ; trustees of turnpike roads an- similarly described, Whitehouse v. fellows, IOC. B. N. S. 765. (). Upon the receipt of the petition the Inclosure Commissioners send down an inspector to report upon the advisability of con- (V;) See Report of IIousc of Lords Committee on Conservancy Boards, 1877, question 117. ('>) A form of Petition is set out in Appendix B. Elective Drainage Districts. 203 stituting the proposed district, and to ascertain generally the opinion of I be proprietors. The inspector then furnishes the Enclosure Commissioners (2) with his report, and after due notices in the Gazette and news- papers, it' they are satislied, they may, by provisional order, under seal, declare the area a separate drainage district. The Inclosure Commissioners are empowered to make such (3-c.) alterations of the boundaries of the area mentioned in the petition as they think tit; but it seems doubtful whether they could alter the boundaries so as to include land not mentioned in the petition (a). As soon as the Inclosure Commissioners conveniently can, Provisional order, fchey must take steps to procure the continuation of the pro- visional order by Act of Parliament ; and, this done, it takes effect as a public general Act. Provisional orders confirmed by Parliament have taken the place of private Acts, and are obtained at much less cost and with greater facility. The Bills for confirming such orders are treated as private Bills, subject to the proof of certain proofs before the examiner. In discussing the effect of a provisional order made by the Board of Trade under the Tramways Act, 1870 (33 & 34 Vic. c. 78), the late Master of the Rolls, Sir G. Jessel, said : — " The legislature, instead of allowing proceedings to be taken before a Committee of either House, or a joint-committee of both Houses of Parliament, decided that these inquiries mighl be prosecuted more cheaply and beneficially before a local tribunal, or persons appointed to inquire into the matters locally. These proceedings are instituted, and the parties, instead of applying to Parliament, apply to the Board of Trade; and, after making a proper investigation into the locality, the (a) See In re the District of Todmorden, 1 B. A S. 11l' ; 130 L. J. Q. B. 305, where the question was raised, hut not decided, whether the Secretary of State, in settling the boundaries of a district under 21 A- 22 Vic. c. 98, had power to include portions of a neighbourhood not mentioned in the petition. 20 1 Land Drainage and Sewers. Board of Trade makes a provisional order; and then, if Parlia- ment sees lit. t hat provisional order generally, with a great many more, is confirmed by an Act of Parliament, which is no1 procured at all by the applicants, l>ut by the Board of Trade — that is, by the executive Grovernmenl of the counl ry " (a). Conftrmedby Until the provisional order is confirmed by Art of Parlia- A.t ol Parlia- ' ment. inriit, it litis no validity (l>), and the Courts oi Law will not entertain any application to interfere with its provisions, for if there is any opposition to it the Bill will be referred to a Seled Committee (c). But a local Board was restrained from proceeding with tin application for a provisional order, anderthe .Metropolitan Commons Act, 1866 (29 & 30 Vic. c. 122), when the application was contrary to equity (7/). Petition against If any pet it ion he present ed to the 1 louse against a provisional provisional -i-wn e i order. order iii the progress ol the Bill, the Bill, so Ear as it relates to such order, is referred to the Committee of Selection, by whom a Private Bill Committee is appointed, and the petitioners are allowed to appearand oppose as in the case of private Bills. The Select Committee may award costs and examine witnesses on oath, 34 & 35 Vic. c. 83. Where orders are amended, the preamble recites that a provisional order has hern made by the department and amended by Parliament , and is as so amended set out in the schedule to the Bill ; and in the schedule appears the amended order referred to and confirmed by the Bill, com- prising every amendment introduced by the committee (e). Bills for confirming provisional orders or certificates being brought in as public are after the first reading referred to the examiner, and are not further proceeded with until after their report (/). (o) In re Morley, L. R. 20 Eq. 17. (b) Sec. 64 (6). (c) Frewon r. the Local Board of Health of Hastings. 6 B. & S. 401 ; 3t L. J. Q. B. 159. (d) Telford v. Met. Board of Works, L. R. 13 Eq. 574; 41 L. J. Ch. 389. (e) Erskine -May's Parliamentary Practice, 733. (/) lb. Elective Drainage Districts. 205 Several orders are generally grouped together in one Bill. Orders grouped. Thus 26 & 27 Vic. c. 63 includes provisional orders under the Land Drainage Act, 1861, for constituting the following Drain- age Hoards: -Morden Carrs Drainage Hoard in Durham, the Longdon and Elderstield Drainage Board in ( !loucestershire, and the Ma\e_\ Drainage Hoard in Northamptonshire. These Arts heiiiLT puhlic general Acts, were formerly published in the edition of public statutes, but now they are published among the local Acts. See, for instance 36 Vic. c. XXIV., establishing a Drainage Board in Deeping Fen, in Lincolnshire; 44 & 45 Vic. c. I, establishing Drainage Boards at Swavesey and Ken Drayton in Cambridgeshire, and at Feltwell and Methwold in Norfolk. If the petitioners are successful in obtaining the constitution costs of the district, the costs of the proceedings may be discharged out of the rates leviable in the district in pursuance of this Act ; if their application prove abortive, they will themselves have to defray the COSl S. Prior, however, to the Inclosure Commissioners entertaining Security for any petition, the petitioners have to give such security for costs as the Commissioners require. The taxation of these costs proceeds on the Chancery and not on the Parliamentary scale (a). DRAINAGE BOARDS. The drainage district once constituted is superintended in all sec 66. matters relating to drainage by an elective body, called the Drainage Board, which is made a body corporate. Board. Then comes the most important section of the enactment See. 67. (s. 67), which defines the powers of the Board. It pro- vides that the Board may, within the limits o\' the district, exercise the same jurisdiction as is vested in Commissioners of («) In re Morley, L. R. 20. Eq. 17. 206 J, ami Dramagt and Sewers. Sewers, while all the powers of the Commissioners of Sewers are &i the same moment swepl away (a). It will be remembered thai by s. 47 of this Act, (h) where Commissioners of Sewers have made any order, requisi- tion or rate, or done any act, an aggrieved person has the righi of appeal to Quarter Sessions, and accordingly a proviso to this section is here inserted giving the same liberty of appeal in like cases to any person a» - uTicved by tlie orders, &c, of the 1 drainage Board. INSULATIONS AS TO DRAINAGE BOARDS. The next section proceeds to enumerate certain regulations to be observed in respect of Drainage Boards, and first as to what the provisional order must contain, which is as follows : — 1. The names and number of the members of the first Board. 2. The number of members who are to serve upon the Board. 3. The mode of summoning the first meeting of the Board. 4. The qualification of subsequent members of the Board. 5. The time at which the first members of the Hoard are to vacate their office, provided that the time is not later than the end of September in the year alter the confirmation of the order by Act of Parliament . The remaining sub-sect ions provide for t he vacal ion of office (r) by members of the Board (sub-sees. 2 and 3); for there- at) But the consent of the Commissioners of Sowers must bo obtained to the establishment of a drainage district wit bin the area of the Commis- sion (s. 63). (}>) See ante, p. I 1 "). (c) See for similar provisions, Public Eealth Act, 1875, 38 & .39 Vic. c. 55, Sched. II. Klcrtiri'. Drainage District*. 2<>7 election of retiring members (sub-sec. 4) ; for the appoint- ment by the Board to casual vacancies on it (sub-sec. 5) ; for t he conduct of the Board during such vacancies (sub-sec. 6) ; Eor the disqualification of members who become bankrupt, the consequent vacation of office and the penalties attaching in case of members acting after such disqualification (sub-sees. 7 and 8), and for the validity of acts done by the Board previous to the discovery of defective appointments or disqualifications of any of its members (sub-sec. 9) (a). Assuming that the provisional order does not lay down any- Qualification ° a of electors, thing to the contrary, the electors of the Drainage Board are subject to the following regulations. The persons who have during- the year preceding such election been rated to the sewers rate of the district, and have paid all sewers rates, are the electors (h). By the interpretation clause of the Act (c) corporations would be included; but such bodies cannot, it is apprehended, vote as ratepayers, except by an officer appointed to vote in their name (f Christohurch, 7 E. & B. -109; affirmed, ib. 421; 27 L. J. .M. C. 23. Elective Drainage Districts. 211 preserve the plaintiff's land from inundation, and that it was approved by the other two members of the committee ; but the Court held that the plaintiff was entitled to succeed, because it was not competent to the committee to delegate their powers. In giving judgment, Lord Coleridge said : " I have come to this conclusion with reluctance, because I find that in this case the power which the defendant assumed to exercise was exercised bond fide, and if not to the direct advantage of the plaintiff, at least with no appreciable damage. The case raises a grave question upon an important Act of Parliament. It may be con- venient that such things as were done here should be done in cases of emergency ; but the powers conferred by the Act in question are very strong, practically superseding to a great extent the rights of private property, an interference with which is only permitted where it is for the general good ; and in all cases the authority must be strictly followed." After discussing the rules of the schedule, his lordship continued : — " The committee, it seems, met and agreed that the part of the drain in question should be dealt with exclusively by the defendant. That was in effect, the committee assuming to clothe the defendant, a member of their body, with a power which the Board alone could clothe him with. It was not com- petent to them to delegate their powers, which required the united action of the three, to be exercised according to the unaided judgment of one of them. I come, therefore, to the conclusion that these powers should be carefully maintained by the Courts ; that the authority given by the Act has not been exercised either according to the letter or spirit ; and that judgment should be entered for the plaintiff." Lindley, J., concurred, and this decision was afterwards affirmed by the Court of Appeal (a). Rule 9 provides for the keeping of minutes, of the appoint- Minutes, ment of officers, of the names of the members present and the committees, of all orders made by the Board and committees, (a) Cook v. Ward, 2 C. P. D. 255 ; 46 L. J. C. P. 554. P*2 212 Land Drainage and Sewers. and of all resolutions and proceedings of meetings of the Board or committee of the Board, and declares that it* duly signed, these minutes shall be receivable in evidence without further proof. In a ease where a Local Act directed the chairman of the meeting to subscribe his name a1 the end of the proceedings, it was held that the book of proceedings was admissible in evi- dence, although it appeared thai In point of fact the chairman did not sign at the meeting itself, or at any other meeting (a). In another local Act where the language was similar to the miles of the Land Drainage Act, 1861, it was held that a book of proceedings, purporting to he signed "W.S., deputy chairman," was evidence per se, without proof that W. S. was in fact deputy-chairman, or as such presided at the meeting (/*). («) Miles v. Bough, 3 Q.B. 845; 12 L. J. Q.. B. 74. (b) The Sheffield and Manchester Railway Company v. Woodcock, 7 M. &W. 574; 11 L. J. Ex. 26. Compensation. 213 CHAPTER X. COMPENSATION. The Land Drainage Act, Assessment of com- 1861, incorporating pensation - 219 the Lands Clauses (a) By justices 219 Consolidation Act, (b) By arbitration - 222 1845 ---- 213 (c) By jury - 227 Interpretation of terms - 214 Lands injuriously aff- Lands purchased by ected (s. 68) 231 agreement 215 Assessment of com- Lands purchased other- pensation - 231 wise than by agree- Lands taken - 232 ment - 216 Lands injuriously Notice to treat 216 affected 234 Service of 217 Common lands 238 Effect - 218 Costs --- . 239 The Lands Clauses Consolidation Acts, with certain excep- Landa clauses tions, to be noticed in due course, are incorporated into the Acts, 1845, i860 Land Drainage Act, 1861, 24 & 25 Vic. c. 133 (a). The pro- aud 1869 ' cedure to be observed in obtaining the requisite powers to put the Act into operation has already been noticed (b). (a) 24 & 25 Vie. c. 133, s. 28. (6) Ante, p. 78, Purchase of Lands j 24 & 25 Vic. c. 133, Part ii., s. G7, gives Drainage Boards all power vested in, and exerciseablo by Commis- sioners of Sewers. 16. Part iii., s. 76, where adjoining owner dissents from the application for an outfall, or is under disability. 214 Land DraiiKdji and Sewers. Compensation under :t & 1 Will. IV. c. 22. Interpret at ion of terms. Special Acts. Promoters. Lands. Lease. The fact that the Act, 3 & 4 Will. IV. c. 22, contains sections (ss. 24-40) (a) which supply a mode for making compensation to persons whose lands arc required by Commissioners of Sewers for the purposes of carrying out their works, must not be overlooked. That Act was passed twelve years before The Lands Clauses Consolidation Act, and'there has been no subsequent amending enactment incorporating the latter; consequently, the diffi- culty (b) raised by s. 60 of the Land Drainage Act, 1861, occurs in this question of land purchase. In strictness it would seem that there is nothing to prevent Commissioners of Sewers proceeding under the extensive provisions of the earlier Act (c) if they choose to do so; but it must be remembered that the powers of land purchase conferred by ss. 24-40 of 3 & 4 Will. IV. c. 22, are limited to the purposes of maintaining and improving existing works (d). It is necessary to direct attention to the meaning of the follow- ing expressions which are used in the Land Drainage Act, 1861, and defined by the Lands Clauses Consolidation Act, 1845. The " Special Act," that is the Land Drainage Act, 1861 ; " Promoters," this includes Commissioners of Sewers and Drainage Boards (Land Drainage Act, 1861, s. 28) (e) ; " Lands," this expression embraces easements (Land Drainage Act, 1861, s. 28) (/) ; "Lease," includes an agreement for (a) The Lands Clauses Consolidation Act has no retrospective opera- tion, re Cherry, 31 L. J. Ch. 351 ; 10 W. R. 305; 6 L. T. N. S. 31. See also ex parte Eton College, 20 L. J. Ch. 1 ; Lancashire & Yorkshiro Rail. Co. v. Evans, 15 Beav. 322. (b) Ante, p. 36. (c) See ante, p. 76, Purchase of Land, (d) lb. (e) Throughout this chaptor ex convenienti, the word " Commissioners" is used to designate the corresponding expression " promoters," and in- cludes, unless the contrary is specified, Commissioners of Sewers and Drainage Boards. (/) Pinchin v. London & Blackwall Rail. Co., 5 De G. M. & G. 851; 24 L. J. Ch. 417 ; Baker v. Vestry of St. Marylebone, 35 L. T. 129 ; 24 W. H. SIS; Great Western Rail. Co. v. Swindon & Cheltenham Rail. Co., 22 Ch. I). 677; 52 L.J. Ch. 806. Comjie/ixutiori. 215 lease (Lands Clauses Consolidation Act, 1845, s. 3); " Owner, " Owner. is any person or corporation who, under the provisions of tin- incorporated Act, the Land Drainage Act, 1861, is enabled to sell and convey land, and the Land Drainage Act, 1861, 24 & 25 Vic. c. 133, confers the power of purchasing the land by agree- Purchase of land by agree- ment ; but it is submitted that the provisions of the Lands ment. Clauses Consolidation Act, 1845, in such case, will be advan- tageously followed (a). The land purchased must be strictly for the purposes of the Purposes of Act (b) ; these purposes, it will be remembered, in the Land Drainage Act, 1861, are limited to "new works." Lands which the Commissioners may be compelled to take under s. 92 of the Lands Clauses Consolidation Act, 1845, as forming part of a house or manufactory, would be " for the purposes of this Act"(c). In all cases of purchase of land a notice to treat in accordance Notice to treat, with s. 18 of the Lands Clauses Consolidation Act, 1845, should be given. Such a notice is a neutral proceeding, and is not a putting in force of the compulsory powers of the Act. The notice to treat does not in itself constitute a contract, but places the parties in a condition to enter into a treaty and agree- ment (d), but when once an agreement to purchase settling the price is made a binding contract is effected (e). The notice to (a) It has been pointed out that Commissioners of Sowers can purchase land by agreement under 3 & 4 Will. IV. c. 22, s. 24, but only for tho purposes of maintenance and improvement of existing works, ante, p. 76. (b) Bostock v. N, Staff. Rail. Co., 4 E. & B. 798; 25 L. J. Ch. 325, where a railway company wero restrained from using for the purposes of a regatta, a reservoir they had purchased. (c) Governors of St. Thomas's Hospital r. Charing Cross Rail. Co., 1 J. & H. 400 ; 30 L. J. Ch. 395. (d) Guest v. Poole & Bournemouth Rail. Co., L. R. 5 C. P. 553; 39 L. J. C. P. 329 ; Haynes v. Haynes, 1 Dr. & S. 420 ; 30 L. J. Ch. 578, where tho effect of the notice and the views of various judges are minutely examined by Kindersley Y.-C. See also remarks by Page Wood, V.-C, in Gardner v. Charing Cross Rail. Co., 31 L. J. Ch. 181 ; 2J.&H. 2 48; Richardson v. Elmit, 2C. P. D. 9. (e) Harding r. Met. Rail. Co., L. R. 7 Ch. 154 ; 41 L. J. Ch. 37 ; Mason 216 Land Urai/uujc and Sucrrs. treat in case of compulsory purchase under the Act is now considered. LANDS PURCHASED OTHERWISE THAN BY AGREE- M I NT. Notice to Tn at. Lands Clauses The first step to he taken by the Commissioners in putting in idation . Act, 1816. force their compulsory powers for the purchase or taking of Notice to treat, lands is to give a notice to treat (a) to the persons interested, and in the form prescribed by s. 18 of the Lands Clauses Con- solidation Act, 1845. Accurate This notice must show with accuracy the quantity and situa- description of " •* * haul., in notice, tion of the lands required, although it is not absolutely essen- tial to adopt any special form (6). Wording uf notice. v. Stokes Bay Pier & Rail Co., 32 L. J. Ch. 110 ; 11 W. R. 80. In re Pigott 18 Ch. D. 146 ; 50 L. J. Ch. 679. A Drainage or Conservancy Board being a corporation must contract under seal, Finlay v. Bristol & Exeter Rail. Co., 7 Ex. 409 ; 21 L. J. Ex. 117. (a) The notico to treat is not confined to cases of compulsory purchase. It may be used with a view to an amicable arrangement to be followed by an ngreement. Guest v. Poole & Bournemouth Rail. Co., L. R. 5 C. P. 553 ; 39 L. J. C. P. 329, see supra. The Commissioners may, as is often done, give more than one notico to treat to the eamc owner, but it is the first notice which binds the lands and fixes the legal relationship between the parties ; Tawney v. Lynn, &c, Rail. Co., 16 L. J. Ch. 282 ; but the power of the Commissioners to take land and to give a second notice to treat is nut exhausted when they have given one notice for a small quantity, and afterwards require a larger quantity for their works ; Stamps v. Birming- ham, &c, Rail., 17 L. J. Ch. 431. (b) Stone v. Commercial Rail. Co., 4 My. & C. 124 ; 1 Rail. Ca. 375, see as to lands taken in small excess of powers and notice, and construction of word " delineated," &c, Dowling r. Pontypool Rail. Co., L. R. 18 Eq. 714 ; 43 L. J. Ch. 761 ; lluddcrsfield Corporation v. Jaeombe, L. R. 10 Ch. 92; 43 L. J. Ch. 748. Tho form of the notice may run as follows : " The lands of which particulars are contained in the schedule hereto, and which said lands so required are for tho better description thereof delineated on the plan attached hereto and delivered herewith, and are thereon distinguished by a red colour." As will bo stated later (post, p. 228), the warrant to the sheriff must coincide with the notice to treat. Compensation. 217 The notice to treat must be given to "till the parties in- To whom given terested in such lands, or to the parties enabled by this Act to sell and convey or release the same, or to such of the said par- ties as shall, after diligent inquiry, be known to the promoters of the undertaking." As a matter of practice, it will be found more convenient to give a notice only to the parties enabled by the Act to sell, &c, when by so doing it diminishes the number of parties to be dealt with. Under the expression " parties interested " are included the rarties inte- rested. following : Mortgagees, equitable mortgagees (a) , trustees and cestui que trustent (it is only where a trustee has a discretionary power of sale that he should alone be served), lessees and sub- lessees. The notice should in case of Commissioners of Sewers be Notice : how signed. signed by the clerk (b), in case of Drainage Boards (under the Land Drainage Act, 1861), being corporations by statute, it should be authenticated bv the seal of the undertaking. No Does not J require stamp. stamp (c) is required, as it does not, as already stated (d), create a contract between the Commissioners and the owners until the price is ascertained, neither does it constitute " a debt is not a "debt x owing, &c., owing or accruing " which can be attached under Order xlv., ™g e ^ t uc ^ c 7 g" Rules of Court, 1883 (e). But when the price has been ascer- tained after the notice to treat, the contract can then be enforced by an action of specific performance (/) by either (a) Martin v. L. C. & D. Rail. Co., L. R. 1 Ch. 501 ; 35 L. J. Ch. 705. So, too, a tenant having an equitablo lien on premises in respect of build- ings erected by him ; Rogers v. Hull Dock Co., 34 L. J. Ch. 165 ; 11 L. T. N. S. 463. It is always better when possible to serve both trustee and cestui que trust. (6) s. 42, Land Drainage Act, 1861. (c) Rawlings v. Met. Rail. Co., 37 L. J. Ch. 82-1; 18 L. T. N. S. 871. (d) Ante, p. 215. (t>) Richardson v. Elmit, 2 C. P. D. 9 ; Howell v. Met. Rail. Co., 19 Ch. D. 508; 51 L. J. Ch. 158. (/) Harding v. Met, Rail. Co., L. R. 7 Ch. 154 ; 41 L. J. Ch. 371 ; Mason v. Stokes Bay Pier Co., 32 L. J. Ch. 110; 11 W. R. 80; Regent's Canal v. Ware Co., 26 L. J. Ch. 566; Grierson v. Cheshire Lines, L. R. 19 Eq. 83; 44 L. J. Ch. 35. In re Pigott & The Great Western Rail. Co., 18 Ch. D. 146; 50 L. J. Ch. 679. 218 Land Drainage and Sew&rs. Service of. Lands Clauses i !i rosi ilidal Lon A.ct, L846. Sees, lit, 20. See. 21. Sees. 59—07. Time within which served. Lands Clauses Consolidation Act, lslo, s. IS. Notice binds the Commis- sioners. party, bul the provisions of the contract must be capable of being enforced at once (a). The notice must be served in accordance with ss. 19 & 20 of the Lands Clauses Consolidation Act, 1845. In the case of land being required from a corporation, the notice should be left at the principal office. A V inn the owner is absent from the kingdom and cannot therefore treat, provision is made by ss. 58-67 (6). It -will be seen on reference to the Land Drainage Act, 1861, 24 & 25 Vic. c. 133, that the provisional order, which is a pre- liminary necessity to the Commissioners putting in force the compulsory clauses of the Lands Clauses Consolidation Act, 1845, may contain certain conditions and modifications as the Inclo- sure Commissioners may deem fit to make, and the time within which the notice to treat must be served may well be specified in 1 hat order. If, however, the Commissioners are not restricted to any period in the execution of their works, it would seem that no intendment as to reasonable time can be made (c). The party upon whom the notice to treat has been served is required by it to state the particulars of his estate and interest in the land required, and his claim in respect of the same. If the description of the land in the notice (d) differ from that in the precept to the sheriff to summon a jury to assess compensa- tion, it is an irregularity which is waived by appearance before the jury (e). The Commissioners having once served the notice to treat are hound by it (/), and within a reasonable time must take (a) Blaokett v. Bates, L. R. 1 Ch. 117; 35 L. J. Ch. 324-. (6) As to costs in such ense, see }><>yt, ji. 231*. (c) Thicknesse v. Lancaster Canal Co., 4 M. & W. 472. (d) Under s. 23 arc words synonymous with these, viz. : " nature and interest." (e) Ex parte Bailey, 1 Bail Court Ca. GO. (/) Except where, under s. 22, there is a counter notice, see Steele o. Mayor of Liverpool, 7 B. & S. 2(31 ; 14 W. R. 311. Compensation. 219 the necessary steps for assessing compensation (a), while the owner of the property thus affected by the notice to treat, remains also bound until the special time has elapsed which may be fixed by the provisional order for the completion of the works (b). The time at which an owner's interest for the purposes of Period fixing owner's compensation is to be considered must be determined solely by Merest. the date of the notice to treat, from which time he can no longer deal with it, e.g., by lease (c). A Court of Equity will restrain by injunction an owner from selling the property par- ticularised in the notice (d). PROCEEDINGS BEFORE JUSTICES. The purchase-money or compensation to be paid by the justices. Commissioners is ascertained by justices under the following consoi Nation 3 circumstances : — Act> 1S45 ' I. — By s. 22 it is enacted that where the claim for the Sec. 22. value of land taken or for injury done to it is under the sum of £50, the amount is to be determined by two justices. The claim of the owner is that which brings the case within the operation of this section of the Act (e). (a) Rex v. Hnngerford Market Co., 4 B. & Ad. 327; Morgan v. Metro- politan Railway Co., L. R. 3 C. P. 553 ; L. R. 4 C. P. 97 ; 37 L. J. C. P. 205 ; 38 L. J. C. P. 87. (b) Richmond r. North London Railway Co., L. R. 5 Eq. 352 ; 37 L. J. Ch. 273 ; L. R. 3 Ch. 679 j 37 L. J. Ch. 886 ; Kemp v. South Eastern Rail- way Co., L. R. 7 Ch, 364 ; 41 L. J. Ch. 404. See also Baker v. Metropolitan Railway Co. 32 L. J. Ch. 7. (c) Ex parte Edwards L. R. 12 Eq. 389; 40 L. J. Ch. 697; Tyson v. Mayor of London L. R. 7 C. P. 18 ; 41 L. J. C. P. 6. (d) Metropolitan Railway Co. v. Woodhouse, 34 L. J. Ch. 227 ; 12 L. T- N. S. 113. (e) Barber v. Nottingham & Grantham Railway Co., 33 L. J. C. P. 193 ; 15 C. B. N. S. 726. 220 Land Drainage and Sewers. Bec.m. II. By s. 12] it is enacted thai where a tenant for a year or from year to year is required to give up the possession of the lands he occupies before the. expira- tion of bis tenancy, the value of Buch interest and the injury done to it in the event of ik portion only of his holding being taken is to be settled l>y two jus- tices. It is to l»e noticed thai it is a condition pre- cedent to a proceeding 1 under this section that the tenant should have been required to give up his land, for the notice to treat is not sufficient for this purpose (a). Land taken. A distinction must be drawn in proceedings under t his section which may be stated as follows : — Where the interest of a party comes within the language of the section and the land is taken, even though his claim exceed £50, this section applies (b). Landinju- But where the land is only injuriously affected and not Ly affected «,»««■ -ii t ,, i j <• ami not taken, taken, the claim, if above £50, falls under the large words ot s. 68 (jury or arbitration), and not the restrictive ones of s. 121 (c). Lands Clauses The qualification of the justices is defined by the 3rd section Consolidation „ . „,, , , n ,, • • At, L845.S.3. of the Act. They must be justices of the county, city, cinque Qualification of port or place where the matter requiring their cognisance arises justices. ....,, and where the lands are situate. The expression " two ]ust ices means "two justices assembled and acting together." The Commissioners at the hearing will appear by their clerk. Again, with reference to the 121st section, it may be observed that when a tenant has less than one year to run of a term of years, it has been held that the proper course is to proceed under that section and not by arbitration under the G8th sec- (a) R v. Stone, L. R. 1 Q. B 529; 35 L. J. M. C. 208 ; 14 L. T. N. S. 552; 11- W. E. 791. Burkinshaw <-. Birmingham, &o., Railway Co., 5 Ex. 475. See also R. V. Commissioners of Rochdale, 2 Jur. N. S. SGI. (b) Knapp v. London, Chatham & Dover Railway Co., 32 L. J. Ex. 230. (o) Somors v. Metropolitan Railway Co., 31 L. J. Q. 13. 2G1 ; R. v. Man- chester, Ac, Railway Co., 4 E. & B. 88; 2 W. R. 591. Compensation. 221 tion (a). But a tenant holding under an agreement with his landlord that he shall not be turned out so long as he pays his rent lias an interest which excludes the operation of this section (b). The tenant's interest must be reckoned from the time of the Period of tenancy : how Commissioners giving notice of their intention to require the determined. property and not from the expiration of such notice (c). • The 122nd section enacts that upon a claim for compensation Sec. 122. being made in respect of an unexpired term or interest under any lease or grant, the claimant may be required to produce such lease or grant or the best evidence of it in his power ; if, after demand made, such lease or other document of title is not produced within eleven days, the claimant is to be considered as a party holding from year to year and is entitled to compensation accordingly (d). The question of compensation is brought before the justices Lands clauses . Consolidation in accordance with the provisions of the 24th section, by which Act, 1845, s. 2-1. either the Commissioners or the claimant, as the case may be, Proceedings: how brought may apply to a justice for a summons calling upon the other to before justices. appear before two justices and naming the time and place. Upon proof of service of the summons, and upon appearance of both parties, or in their absence of either of them, the justices may proceed to hear and determine the question of compensa- tion (e). (a) Reg. v. Great Northern Railway Co., 2 Q. B. D. 151 ; 46 L. J. Q. B. 4 ; 25 W. R. 41. So too in the case of an office held durante bene placito the interest is one determinable nnder this section, R. v. Manchester, &c, Railway Co., 4 E. & B. 88 ; 2 W. R, 591. (b) In re King's Leasehold Estates, L. R. 16 Eq. 521 ; but secus Wood v. Beard, 2 Ex. D. 30 ; 46 L. J. Ex. 100, whero thero is an uncertainty in the letting clause. (c) Tyson v. Mayor of London, L. R. 7 C. P. 18; 41 L. J. C. P. 6. (rf) It is curious to note that this section entitles the claimant to 21 days' notice before ho need produce his deed. Under s. 68 the Commis- sioners must issue their warrant within 21 days after the claimant's notico for compensation. (e) The costs are in the discretion of the justices, see post, p. 240. The decision of the justices may be verbal, R. v. Combe, 32 L. J. M. C. 67. 222 Land Drainage and Sewers. Sec. 63. It is important to notice that in these proceedings before justices tlic assessment of compensation is to bo based upon a consideration no1 only of the value of the land purchased, but of the damage which may have been done by severance, &c, to other lands. Time for appli- If lands are I he subject of compensation (under £50) which lands inju- have been injuriously affected, and a portion of them has been riously affected. ,.,.,. » t j> ^i taken, the adjudication ot a justice is not an order tor the pay- ment of money within 11 & 12 Vic. c. 43, s. 11 (Jervis' Act), and the six months' limit does not apply (a). The justices may Mandamus. be compelled by mandamus to assess compensation if they refuse to exercise their discretion (b). ARBITRATION. Arbitration. The amount of compensation is ascertained by arbitration under the Lands Clauses Consolidation Act, 1845, in certain Land Drainage cases arising under the Land Drainage Act, 1861, 24 & 25 Vic. c. 133. Thus there is the general claim for compensa- tion, which may be raised by any person who has been affected by the powers of the Commissioners of Sewers, declared in s. 1G of that Act (c). Lands Clauses Adverting then to the Lands Clauses Consolidation Act, aX'h£ 1 s.'23. 18-15, the 23rd section of that Act points out that where the claim exceeds £50 it may be settled by arbitration or jury, at the option of the party claiming (d). Again under the 68th section, where the lands are purchased or taken, and the interest of the owner is greater than that of (a) R. r. Hannay, 44 L. J. M. C. 27. In this case the judges, though distinguishing it from R. v. Edmondson, 17 Q. B. 67, commented unfavour- ably upon that case. See also Jacombe v. Dodgson, 32 L. J. M. C. 113 ; Sweetman v. Guest, 37 L. J. M. C. 59. (b) R. v. Stone, L. R. 1 Q. B. 529 ; 35 L. J. M. C. 208; R, v. Vaughan, L. R. 4 Q. B. 190 ; 38 L. J. M. C. 49 ; 9 B. & S. 892 ; 17 W. R. 115. (c) Under ss. 17 & 18, the right of the Commissioners to undertake the works mentioned in those sections is determined by arbitration. (. Submission ii, rule of Court. of tlic parties, the arbitrator who alone has been appointed may an I'm- both and make a final award (a). Tims the claimant will first appoint his arbitrator and notify the appointment to the Commissioners, and then in writing call upon them to appoint t heir arbil rator. Before the two arbitrators enter upon the reference they must appoint by writing under their hands, an umpire to decide upon matters of difference between them; if the}' neglect or refuse to appoint an umpire, two justices on the application of either party appoint one (b). When there are two arbitrators and one refuses, or for seven days neglects to act, the other may proceed ex parte. "When the appointment is once made it is not revocable, except by consent, and the submission and arbitration may be made a rule of Court on the application of either party (o). And it may here be observed that arbitrations under the Lands Clauses Consolidation Act, 1845, fall within the provisions (d) Vacancy by deat h, &c. Sec. 28. (c) s. 25 ; Bradley v. Lond. & N. W. Rail. Co., 5 Ex. 769. (b) ss. 27 & 28. On tho death or incapacity of a solo arbitrator, the matter is referred de novo, a. 29. In case of one of the two arbitrators failing, see s. 2G. Where orie of the parties is a railway company, the Board of Trade appoint an umpire, s. 28, but now see 46 & 47 Vic. c. 15, explaining 8.28. and K. u. Sheward, 9 Q. B. I). 741. (c) This Act has been discussed with reference to arbitrations when directed by Quarter Sessions, under tho Land Drainage Act, 1861. See ante, p. 98, Russell on Awards, 4th ed., pp. 558, 568. (). It is here useful to notiee the procedure with regard to Sec.68. Lands mjn- assessment of compensation by jury under s. 68, in a claim tor riouslj affected. compensation for lands taken or injuriously affected. If the claim exceeds £50 and the claimant desires the question to be settled by a jury, he takes the initiative by giving notice to thai effect to the Commissioners, and unless they are willing to pay the amount they must within 21 days issue their warrant to the sheriff to summon a jury "for settling the same in manner herein provided (c)," or in default they will be liable to pay the amount claimed. The procedure regulating the assessment of compensation by Landss . be purchased, jury for lands which the Commissioners seek to purchase is to s. 38. be found in ss. 38-57. The Commissioners must give 10 days' (a) The assessment by jury under 3 & 4 Will. IV. c 22, has been discussed Assessment by ante, p. 76. It will be remembered that under that Act land cannot be pur- ■ )U1> ' chased for new works. (b) It has been seen that if the interest of the claimant is not greater than interest not. that of a tenant from year to year, and possession of the land is required, r-,',',1",',/ t , the compensation will have to be assessed by two justices under s. 1-1 of from year to the Lauds Clauses Act, 1845; but if the lands are merely injuriously y affected then the claim, it' over £50, falls under s. (IS, when the compen- sation may be assessed by a jury it' the claimant desires, 1'. o. Stone, L. R. 1 Q.B. 529; 35 L. J. M. C. 208; 7 B. & S. 769, see ante, Justices, \>. 219. (r) That, is when once the Commissioners have issued their warrant all subsequent proceedings arc to lie in accordance with the procedure of ss. 38 57. Railstone u. York, &c. Railway Co., 15 Q. 15. 404 ; 1:> L. .1. t,». 15. 464 ; South Eastern Railway Co. « Richardson, 21 L.J. C 1'. 122; Eayward v. Metropolitan Railway Co., 33 L. .1. <,> 15 7:5 I B A s. 787 228 Tui, ill Drinniuji mill Sinrers. notice of their intention to summon a jury, stating* the amount. ilu\ are willing to give tor the land and for damage sustained by tlif execution of the works. The summons of the jury is, it is to be observed, only to be issued at the instance of the Com- missioners. The owner has no power to commence these pro- ceedings, as he would have, in case the Commissioners had already entered on the land and he was claiming compensation for lands injuriously affected under s. 68. After the notice to treat which, as has been shown, binds the land, the Commis- sioners would, by neglecting to issue their warrant for a jury, tie up the lands for an indefinite period, and it has therefore been held that they must issue their warrant within a reason- able time, and that if they do not they may be compelled to do so by mandamus (a). Sec. -39. Section 39 provides for the issue by the Commissioners of their warrant summoning a jury, which must be addressed to the sheriff. Sec. 43. The jury having been summoned and impanelled (ss. 41 & preside. 42), the sheriff presides at the inquiry, and the party claiming compensation is to be the plaintiff, and to have all the rights (a) Fotherby v. Met. Rail. Co., L. R. 2 C. P. 188 ; 36 L. J. C. P. 88; Morgan v. Met. Rail. Co., L. R. 4 C. P. 97 ; 38 L. J. C. P. 87. The ten days' notice prescribed by s. 38 is required in those cases where the Commis- sioners are seeking to purchase the land, not to cases where they have already entered upon the land and compensation is sought under s. 68, Railstone v. York, &o., Rail. Co., 15 Q. B. 404; 19 L. J. Q. B. 464; Hay- ward v. Met. Rail. Co., 33 L. J. Q. B. 73 ; 4 B & S. 737 ; 9 L. T. N. S. 680 ; 12 W. R. 577. The warrant should follow the notice to treat in precise terms, Stone v. Commercial Rail. Co., 4 My. & C. 122 ; 1 Rail. Ca. 375; but there need not be a reference to the notice, Ostler v. Cooke, 13 Q. B. 143; 18 L. J. Q. B. 185. The jurisdiction should appear on the warrant and inquisition, Taylor v. Clemson, 2 Q. B. 978, affirmed 11 CI. & F. 610 ; and it would seem sufficient if the warrant substantially complies with the provisions of the Act, R. v. Lancaster & Preston Rail. Co., 6 Q. B. 759; 14 L. J. Q. B. 84; 3 Rail. Ca. 725; if issued by a Drainage Board the warrant should be under their common seal ; if issued by Commissioners of Sewers it should be issued under the hand of their clerk as a notice under the Land Drainage Act, 1861, 24 & 25 Vic. c. 133, s. 62. Compensation. 229 and privileges as a plaintiff in an action at law (a). It' cither party requires it the sheriff is to summon witnesses, and he may order the jury to view the locus in quo (hi). Sections 44, 45, mention the penalties to which the sheriff, jury and witnesses are subject for misconduct (c). By s. 46 ten days notice of the time and place of inquiry is Sec. 46. to be given by the Commissioners to the other party. inquiry. If the claimant fail to appear the inquiry cannot proceed, Bee. W. . . Claimant not but the compensation is to be ascertained by a surveyor ap- appearing, pointed by two justices (d). The jury are sworn and should deliver separate verdicts for Sees. 48, 49. the sum to be paid for the purchase of the lands or interests, sworn . ... assess sepa- and also tor the compensation for any severance or injuriously ratciy. affecting of other lands of the party claiming compensa- tion (e). In the same way as an arbitrator the jury have no jurisdic- tion to inquire into the questions of title, they have only to (a) These words are not intended to refer to costs, but to regulate the general course of proceedings, to remove doubts concerning the right to begin, and to show in other respects how the inquisition should be con- ducted, per Lord Denman, C. J., in R. v. Gardner, 6 A. & E. 112. A complaint for excess of jurisdiction should be by certiorari and not by prohibition to prevent the sheriff holding the inquiry, Chabot v. Lord Morpeth, 15 Q. B. 446 ; 19 L. J. Q. B. 377. (b) It is doubtful whether the sheriff could order a view in another county, Malins v. Lord Dunraven, 9 Jur. 690. It seems he would have power to postpone the trial, Fouraker r. Jackson, 2 Jur. 329. (c) If the sheriff does not act upon a requisition sufficiently valid, a mandamus will lie to compel him to do so, Walker v. London & Blackwall Rail. Co., 3 Q. B. 744 ; 3 Rail. Ca. 396. For recovery of penalties, see ss. 136 eb. seq. of the Lands Clauses Act, 1845, post penalties. (d) In accordance with the procedure in the case of owners who can- not be found, ss. 58-59. (e) This provision is directory, Corrigall v. London & Blackwall Bail. Co., 5 M. &G. at p. 249; 12 L. J. C. P. 209 ; and the inquisition will not be set aside because the compensation is assessed in one gross sum, /\V London & Greenwich Rail. Co., 2 A. & E. 678 ; ('// re Bradshaw's Arbitra- tion, 12 Q. B. 562 ; 17 L. J. Q. B. 362 ; 5 Rail. Cm r,,_ 230 Land Drainage and Sewi rs. decide apon I be quesl ion of compensal ion. (a) They may take into account prospective damages (/<)• When there are several interests to be compensated, they musl apportion the com- pensation, for tlic finding of a gross sum would be a fatal objection (c). If the inquisition is quashed on c> .rliom rl for wani of juris- diction, the sheriff is bound to proceed on the original warrant (./). The jury having returned bheir verdict, the sheriff gives judgment, and the record is kept by the clerk of the peace (e). Section 54 provides for the mode of summoning a special jury Sec. 54. Special jury. Inquisition. (o) K. b. Met. Rail. Co., 32 L. J. Q. B. 367; 4 B. & S. 315; R. v. London & X. Western Rail. Co., 3 E. & B. I t3 ; 23 L. J. Q. B. 185; Chabot v. Lord Morpeth, L5 Q. 15. 446; 17 L. J. Q. B. 33G. (b) R. v. Brown, L. R. 2 Q. B. 630; 36 L. J. Q. B. 322; 8 B. & S. 456. See also under s. 68, post. (c) R. v. Trustees Norwich & Walton Road, 5 A. & E. 563. The quan- t it tn of damages cannot be disputed afterwards, unless excess of jurisdict ion is shown, Mortimer b. S. Western Rail. Co., 1 E. & E. 375 ; 28 L. J. Q. B. 129 ; and on an action brought on the inquisition the defendants can show that the subject-matter of bhe claim is such as is not contemplated by the Act, Chapman b. Monmouthshire Rail. Co., 2 II. & X. 2(i7 ; 27 L. J. Ex. 97 ; R. b. London & X. Western Rail. Co., 3 E. & B. 443; 27 L. J. Q. B. 185; but they will not be allowed to plead that the claim is not bona fidt ; Eooper v. Bristol Rail. Co., 35 L. J. C. P. 299. (d) Horrocks b. Met. Rail. Co., 19 C. B. N. S. 139. As to time for applying for a certiorari to quash, see R. v. Sheward, 9 Q. B. D. 741. (c) The inquisition should be signed by the sheriff, though held by his d( piny, R, b. Perkins, 7 Q. B. 165; 9 Jnr. 686; Stroud b. Watts, 3 D. & L. 799 ; L0 Jnr. 497. The statute requires no regular form of inquisition, and the enactment that the verdict and judgment Bhould be kept among the records of the Sessions and to be deemed records, does not render it necessary to draw them up with the formality required in setting out the judgment of an inferior Court, R. v. Trustees of Swansea Harbour, 8 A. & E. fc39; R. b. Manchester and Leeds Rail. Co., 8 A. & E. 413. It is suffi- cient if the jurisdiction appear on the warrant and inquisition, Taylor b. Clemson, 2 Q. B. 978; 11 01. & P. 610; and it is not uecessary that the warrant and inquisition should refer to the notice; Ostler B. Cooke, 13 Q. B. L43; L8L. J. Q.B. L85, a ease in which compensation was sought Eor required by Commissioners under a Drainage Act. In the two last Forms ol inquisii ion are set out, Compensation. 23] at the request of either party. The request must be made to the Commissioners before they have issued their warrant (a). The 68th section of the Lands Clauses Consolidation Act, Si 1845, becomes applicable in those cases where — I. The Commissioners have entered into possession of property for which they have not paid. II. Where they have, in the execution of their works, injuriously affected property, and arc bound to make compensation (b). In some statutes, notably the City of London Sewers Act, 1848 (11 & 12 Vic. c. 143) ; the Metropolis Local Mnnagement Act, 1855 (18 & 19 Vic. c. 120), ss. 16-68 of the Lands Clauses Consolidation Act, 1845, are not incorporated ; the decisions as to the effect of this omission, are quoted below, but inasmuch as the Land Drainage Act, 1861 (24 & 25 Vic. c. 133), incorporates the Act without such qualification (c), it is not necessary to discuss the question. If the compensation claimed does not exceed £50, it must be Assessmentof 1 compensation. settled by justices (d), otherwise by arbitration or jury, at the option of the owner. After notice from the owner of his choice of proceedings, the Commissioners have twenty-one days in («) In the case of a notice given to the Commissioners under s. 68, thej must issue their warrant within twenty-one days, Grlyn 0. Abenlare Rail. Co., 28 L. J. Q. B. 271. (h) Per Wigram, V.-C. Adams w. London & Blackwall Rail. Co., 18 L. J. Ch. 357 ; 6 Rail. Ca. 271. The land must be actually taken, or actually affected, Burkenshaw v. Birmingham, &c, Hail. Co., 5 Ex. -175; 20 L. J. Ex. 246. The distinction between the mode of procedure tinder s. 18 and s. 68, is well pointed out by Lord Cottenham in Adams u. London & Blackwall Rail. Co., 19 L. J. Ch. 557 ; 2 Mac & G. 118. (c) Ferrar v. Commissioners of Sewers, L. R. 4 Ex. 227 ; 38 L. J. Ex. 102, 21 L. T. N. S. 295 ; Dungey v. Mayor of London, 38 L. J. C. P. 298 ; 20 L. T. X. S. 021 ; R. v. Vestry of St. Luke's, Chelsea, L. Et. 7 Q. B. 148; 41 L. J. Q. B. 81 ; 25 L. T. N. S. 914 ; H. v. Lord .Mayer of London, L. R. 2Q. B. 292; 16 L.T.N. S. 2S0. Ami as to the effeot of incorporating certain sen ions by their introductory heading, get Ferrar v. Commissioners of Sewers, (,:) Ante, p, 219 ■2:V2 L. |». 432; 48 L. J. Q. B. 248. (/-) Clarke e . Wandsworth. L. B. 17 L. T. N. S. 549. Compensation. S'>'-'> tion of the works upon the rent, for when it is Lowered a Vj 1 tenants. reduction of the tenant's claim should be considered (a). The tenant of lands taken is entitled to the full marketable v;ilue of his holding. If the Commissioners give him notice ending with the current year of the tenancy, and at the expiration of thai time take possession, he is not entitled to compensation (b). On the other hand the Commissioners may take possession Measure of ' x compensation. and compensate the tenant for the value of his term between the time of his giving up possession and that when a landlord's notice to quit would have expired (c) . It will be remembered that, under s. 121 (V), the compensation in cases of yearly Sec. 121. tenancies is assessed by two justices. With respect to lands subject to tithes, it was decided in the Titheabie lands. year 1829, in a case where such land was required by the Com- missioners of the Nene Outfall for a new cut, that the tithe owner was not entitled to compensation (e). An owner of an estate in fee simple of which he is in Fee simple owner in possession, is entitled to compensation according to the possession, following: basis of calculation. The annual value of the lands Compensation : o how calculated. is taken, and that is multiplied by the number of years pur- chase which the special circumstances require. The number of years purchase is calculated upon the interest which the purchaser would receive according to the recognised tables (/). In the case of a lessee or tenant, the value of the term or Tenants of lessee, tenancy is the difference between the actual rental paid by him (a) Lloyd on Compensation, 5th ed., p. 103. (b) R. ?■. Southampton Rail. Co., 10 A. & E. 3. See also ev parte Nadin, 17 L. J. Ch. 421, as to claim by tenant against landlord. (c) Em parte Nadin, 17 L. J. Ch. 421. When a tenant prefers to continue in occupation, and gives up his right to claim for disturbance, he is in the same position as if he had received an ordinary landlord's notice, and cannot claim compensation. R. v. Southampton Hail. Co., 10 A. &E. 3. (d) Ante, p. 220. («) R. r. Commissioners of Nene Outfall, B. & C. 875. (/) Inwood's Tallies, sec Cripps's Principle- of Law of Compensation, p. 147. _ >: '< 1 Liiii'l Drainage and Sewers. Compensation, and the improved annual value thai the property is worth to ln'm multiplied by the number <>f years purchase, which depend upon the character of the property and on the length of the term or tenancy (a). Compulsory Ten per cent, is added to the value of lands taken under ale. [nterest compulsory powers ; and interest at t lie rate of 4 per cent, is paya e " payable mi I he purchase-money (b). Lands inju- There have been numerous decisions on the effect of the nously affected. words " injuriously affected by the execution of works," some of them difficult to reconcile, but the following principles deduced from principles in the House of Lords have now been established. 1. The damage must be such damage as would have been actionable if it had not been done in the exercise of the statutory powers of the Commissioners ; if done in excess of their powers or in wanton use of them, an action lies (c). 2. The damage must be an injury to the estate and not to any particular use to which it may from time to time be put, nor an interference with personal inconvenience (cZ). (a) Cripps's Principles of Law of Compensation, p. 148, where a calcu- lation in a given case is worked out, and in one also of the compensation payable for a reversion. See also Lloyd on Compensation, p. 67, quoting an abstract from Inwood's Tables. At the same page he considers a scale of claims, and gives some of the usual items. (b) The question of the payment and the time from which it accrues is carefully considered by Jessel, M. R., in In re Pigott & The G. W. Rail. Co., 18 Ch. D. 146 ; 50 L. J. Ch. 679 ; where he lays down the rule that upon the completion of the contract, the ordinary rules as between vendor and purchaser apply, disapproving of In re Eccleshill Local Board, 13 Ch. D. 365; 49 L. J. Ch. 21 I ; 28 W. R. 531. (c) Ricket v. Met. Rail. Co., L. R. 2 E. & I. Ap. 175 ; 36 L. J. Q. B., 205; 16 L. T. N. S. 542; Beckett v. Midland Rail. Co., L. R. 3 C. P. 82; 37 L. J. C. P. 11 ; 17 L. T. N. S. 499. (d) Met. Board of Works v. McCarthy, L. R. 7 E. & I. Ap. 243; 43 L. J. C. P. 385. An injury temporary and personal is not the subject of compensation, Ricket r. Met. Rail. Co., supra, while an injury permanent to the premises would be the subject of compensation, Chamberlain v. West-end, &c, Rail. Co., 2 B. & S. 617; 31 L. J. Q. B., 201. The distinc- tion between these two classes of injury is thoroughly investigated in Mel ■ Board, of Wot] BIc< 'arthy, u%> ( 'o7wp< nsation. - : '> r > 3. The damage musl arise by reason of the execution of the works of the Commissioners, and not from the use of them when executed (a). In accordance with these principles the destruction of a draw- compensation r L recoverable. dock (b), the obstruction of a public (c) or private (. Midland Hail. Co., L. R. 3 C. P. 82; 37 L. J.C. P. 11; Chamber- lain r. West-end, &c, Rail. Co., 32 L. J. Q. B. 173; 2 B. & S. 617. (d) Glover v. N. Staff. Rail. Co., 16 Q. B. 912 ; 20 L. J. Q. B. 37G. (e) In re Cooling, 19 L. J. Q. B. 25. (/) Duke of Bedford y. Dawson, L. R. 20 Eq. 353; 44 L. J. Ch. 549. (...) Knock v. Met. Rail. Co., L. R. 4 C. P. 131 ; 38 L. J. C. P. 78. (h) R. v. Nottingham Waterworks Co., 6 A. & E. 355. (i) R. r. Midland hail. Co., 2 Rail. Ca. 1; Ferrand o. Corporation of Bradford, 21 Beav. 412; Little v. Dublin & Drogheda Rail. Co., 7 Ir. C. L. Rep. 82. (j) Potter ,: Hamilton, &c, Rail. Co., 3 Scotch Sess. Ca., 3rd Series, 83. (k) R. . Rynd, 16 Ir. C. D Rep. 29. So also the substitution of a land access for a water access, Duke of Buccleuch v. Met. Board of Works. L. R. 5 K. a 1. Lpp U8i II L.J. Ex, IZ1 286 Land DruiinKjr. a ml. Savers. that this interference with the foreshore was to be paid for under s. 68 (a). Compensation Again referring to the principles enunciated in the decisions not recoverable. . _ . in the House of Lords, compensation has been held to be not recoverable in the following cases : — The destruction of a draw dock, where the interest was merely personal (b) ; causing temporary loss of custom to the owner of a public house by the obstruction of a passage (c) ; tunnelling under a highway (d) ; interference with a right of shooting (e). So, too, the Com- missioners would not be held liable to pay compensation for diverting subterranean water; as for instance, intercepting some underground spring, and thereby the flow of water to a well (/), nor for the loss of traffic to the owner of a ferry caused by a new highway, by bridge or ferry made to provide for a new traffic (g). No set-off for In assessing compensation in the case of a railway company, benefit. ox it has been held that they are not entitled to set off the benefit accruing from the construction of their works (/;), but it is curious to note that the Land Drainage Act of Ireland, 1863, (a) Conservators of River Thames v. Victoria Station, &c., Rail. Co., L. R. 4 C. P. 59 ; 38 L. J. C. P. 4. (6) R. v. Met. Board of Works, L. R. 4 Q. B. 358 ; 38 L. J. Q. B. 20. (c) Ricket v. Met. Rail. Co., L. R. 2 E. & I. Ap. 175; 36 L. J. Q. B. 205. (d) Souch v. East London Rail. Co., L. R. 16 Eq. 108; 42 L. J. Ch. 477. (e) Bird v. Great Eastern Rail. Co., 19 C. B. N. S. 268. (/) Galway v. Great Southern Rail. Co., 4 Ir. C. L. Rep. 456 ; New- River Co. v. Johnson, 2 E. & E. 435 ; 29 L. J. M. C. 93. The law relating to the rights to subterranean water, and the distinction between those rights and the rights to surface water is investigated and the result stated by Tindal, C. J., in the considered judgment of the Court of Exchequer, in Acton v. Blundell, 12 M. & W. 324 j 13 L. J. Ex. 289; see also Chasemore v. Richards, 7 H. L. Ca. 349; 29 L. J. Ex. 81; R. v. Met. Board of Works, 32 L. J. Q. B. 105. (g) Hopkins v. Great Northern Rail. Co., 2 Q. B. D. 224 ; 46 L. J. Q. B. 265 ; L. R. 6 Q. B. 422 ; reversing Reg. v. Cambrian Rail., 40 L. J. Q. B. 169. (M Senior v. Met. Rail. Co.. 32 L. J. Ex. 225 ; 2 Hurl. & C. 258. ('ompnixtititni. 2o7 26 & 27 Vic. c. 88, expressly provides by s. 28 thai this is to be an element of compensation. The question of application of the purchase-money or com- Application of pare! pensation for the protection of persons under disability or moony. having interests in reversion or remainder, together with the provisions relating to the application of the purchase-money or compensation assessed or agreed upon when possession of the Land is required, but the owners will not, under the special circumstances, convey, is purposely omitted (a). The treat- ment of this branch of the law of compensation would neces- sarily involve more space than the limits of this work permit, neither is the subject-matter so nearly related to the practical view of the law which the authors have endeavoured to give as to justify its insertion. For a lucid account of the various proceedings to be taken the reader is referred to Mr. Cripps's work on the principles of the law of compensation (b). Bv s. 10, the vendor absolutely entitled, or the party under Lands may be J ' J r J sold for a rent disability, 23 & 24 Vic. c. 106, s. 1, may sell for an annual rent- charge, charge : by s. 11, this is to be charged on the tolls or rates, and arrears of payment of the same may be recovered by action or distress on the goods and chattels of the Commissioners (c). It may be added that the Lands Clauses Consolidation Act, 1845, specially provides for the cases where the Commissioners have to deal with copyholds (d), lands subject to mortgage (e), rent-charges (/) and lands subject to leases (g). (a) ss. 69-80 of the Lands Clauses Act, 1845. (b) pp. 73, 204. (c) This would be on the goods which in their corporate capacity a Drainage Board may hold and on the goods which Commissioners of Sewers may hold in their qnasi-corporate capacity, as has been shown, ante, pp. 82, l'.tl, ((f) ss. 95-98, enfranchisement, compensation for enfranchisement, apportionment of rent. (e) ss. 108-114, part of mortgage lands taken, deposit of compensation money, rights against mortgagor reserved, compensation to mortgagee paid off before time. (/) ss. 115-118, release of lands, apportionment, charge continuing on lands not taken. (:/) ss. 119-123, apportionment of rent if part of lands underleased taken. 238 Land Drainage and 8ewt rs Sec. 09. Compensation when hi ■ j of lands ui the Commi Sec. 101. Right to soil in the commoners, Sec. 102. .Milling of pai 1 168 interested. Sec. 103. Sec. 104. Duties of committee. COMMON LANDS, ss. 99-107. When the righl to the soil in common lands is in the lord of the manor, the compensation is to be paid to him, and the com- pensation for commonable rights is to be paid in the same manner as is provided when the righl in the soil is in the commoners (a); upon payment, all commonable rights arc extinguished (b). The compensation being- paid, the lord conveys his right in the soil to the Commissioners, which has the effect of vesting the land in them ; in default of his doing so. the Commissioners may execute a deed poll in accordance with ss. 76 and 77 of the Lands Clauses Consolidation Act, 1845, and after making the deposit, the land vests in them. By s. 101, if the right to the soil is in the Commoners, the Commissioners may agree with a committee of the parties interested. By s. 102, a committee may be appointed at a meeting of the parties interested, to be convened by the Commissioners, by public advertisement, as required by the section (c). By s. 103, the decision of the majority at the meeting is to bind the minority, and all absent parties. By s. 104, the committee may enter into an agreement for the compensation, receive it and apportion it; the Commis- sioners are not responsible for the apportionment (d). By s. 105, all disputes are to be settled as in other cases of com- («) See ss. 101-107, v> (I) If after payment to the lord of the manor of compensation in respect of his right to the soil, and receipt of conveyance by him, t he Commissioners were to enter on the land and commence their works without having com- pensated the Commoners for their rights, an action wonld be maintainable against them by a Commoner for the disturbance of his rights of common; Stoneham v. London, B. & S. C. Rail. Co., L. It. 7Q.B.1; 41 L. J. Q. B. 1. (<-) Ss. 101-106, are directory only and not imperative, and therefore the parties may enter into an agreement among themselves without follow- ing the provisions of those elections, Bee v. N. Staff. Rail. Co., 23 W. R. st;s. (it) Instances of apportionmenl among the Commoners are to be found in Nash r. Coombs, L. R.6 Eq. :>l ; 37 L. .). Ch.600; Pox i\ Amherst. L. R. 20 Eq. L03; 1 ! I,. J. Ch. 666. nensation. By s. 106, if no effectual meeting takes place the ■ '"-■ i J ' x Abortive compensation is to be settled by a surveyor, nominated by two ""' justices, as under ss. 59, 60, 61 (a). On payment to the committee, or deposit in the bank asSec.iW. 1 ■ . Vesting of provided by ss. 76 (b), and execution of a deed poll as provided land. by ss. 77, the lands vest in the Commissioners freed from all commonable rights. As it is difficult to foresee the application of the sections (c) relating to superfluous lands, it has not been deemed necessary to encumber this portion of the work with a discussion of the principles and decided cases which surround the subject (d). Provision is made by s. 39 of 3 & 4 Will. IV. c. 22 for sale of lands by the Commissioners. COSTS. There is no provision for costs in the purchase of lands by Purchase by agreement. agreement under the Lands Clauses Act, 1845, or under the Land Drainage Act, 1861, and provisions as to costs should therefore be embodied in the agreement (V). The expenses of valuation by surveyors in the case of absent Valuation by . . . surveyors. owners (s. 58), persons under disability (s. 9), entry on lands («) Ante, p. 229. (b) See a recent case where the Crown making an adverse claim to a portion of the foreshore, the purchase-money was paid into Court under this section, In re Manor of Lowestoft and Great Eastern Eailway Co., 24 Ch. D.253; 52 L. J. Ch. 912. (c) Ss. 127, 131. (d) The meaning and application of the 127th section of the Lands Clauses Consolidation Act, 1845, which refers to superfluous lands, are dis- cussed at length in G. W. Rail. Co. r. May, L. R. 7 E. & I. Ap. 283; 43 L. J. Q. B. 233, and for recent cases upon the question, see Hobbs v. Midland Railway Co., 20 Ch. D. 418; 51 L. J. Ch. 320; London & South Western Railway Co. v. Gomm, 20 Ch. D. 562; 51 L. J. Ch. 193, 530; 1„ re Higgins, 21 Ch. D. 95; 51 L. J. Ch. 772. The costs of an arbitra- tion held to settle the amount to be paid for the purchase of superfluous lands are in the discretion of the arbitrators, s. 130. (c) Costs in cases of purchase of land under 3 iV I Will. I V. c. -'-. have been noticed ante, p. 77. 240 Land Drainage and Sewers. before purchase (s. 85), common lands (s. 106) are regulated by s. 62, and are to be paid by the Commissioners. Assessment by If compensation is settled by justices, the costs of the inquiry are in their discretion (s. 24.) By arbitrators. The costs of arbitration are paid by the Commissioners, unless the arbitrators (a) award the same or a less sum than was offered (s. 34), when they are in the discretion of the arbitrators. The costs need not be incorporated in the award, but may be ascertained at a subsequent time by the person who made the award (1>), and they may now be settled by a Master of the Queen's Bench Division (c), whose decision is final (d). The costs may be recovered by action, although proceedings have not been taken to have the amount settled by the Master (e). The taxed costs become payable within a reasonable time, Sec. 51. and the vendor has no lien on the land sold for the costs of the jury. arbitration, but only for the amount of the purchase-money (/). If the jury give a greater sum than was previously offered (g) (a) Or umpire; Gould v. Staffordshire Potteries Waterworks Co., 19 L. J. Ex. 281 ; 5 Ex. 215. (6) Gould v. Staffordshire Potteries Waterworks Company, supra. (c) 32 & 33 Vic. c.18 (Lands Clauses Act, 1869), s. 1. (d) See infra, note (b). (e) Holdsworth v. Wilson, 32 L. J. Q. B. 389 ; 4 B. & S. 1. See Martin v. The Leicester Waterworks Company, 27 L. J. Ex. 432. (/) Capell r. Great Western Railway Co., 9 Q. B. D. 459 ; 11 Q. B. D. 345 ; 51 L. J. Q. B. 601 ; 52 L. J. Q. B. 345 ; Ferrers v. Stafford and Uttoxetcr Railway Co., L. R. 13 Eq. 524; 41 L. J. Ch. 362. (g) If the proceedings are in respect of purchase of land, this would refer to the sum offered at the time of the notice under s. 38 ; see R. v. Smith, 12 Q. B. D. 481 ; 53 L. J. Q. B. 115 ; if the proceedings are in respect of compensation under s. 68, such sum as was offered in reasonable time previously to the inquiry ; Hayward v. Met. Rail. Co., 4 B. & S. 787 ; 33 L. J. Q. B. 73 ; Pearson v. G. N. Railway Co. L. R. 7 Q. B. 785; S. Eastern Railway Co. v. Richardson, 21 L. J. C. P. 122; pro- bably the same time as the notice of trial required under s. 46, viz., ten d:.\ b, Met. Rail. Co. v. Turnham, 14 C. B. N. S. 212 ; 32 L. J. M. C. 149 ; the offer must be unconditional, Balls v. Metropolitan Board of Works, L. It. 1 Q. B. 337; 35 L. J. Q. B. 101 ; 7 B. & S. 177; and the original offer may be amended, Hayward v. Met. Rail. Co., swpra; see R. v. Smith, supra. Compensation. 241 by the Commissioners, the latter will have to bear the costs c-1' the inquiry; it' the same or a less sum is given, or if the claimanl fails to appear, the costs of summoning, impanelling and returning bhe jury and taking the inquiry is divided between him and the Commissioners, and each party bear their own costs (a). In case of difference, the costs arc to be settled by a Master of the Queen's Bench Division (6). If the Commissioners have to pay the costs they must pay Sec. 53, 1 J " raymunt of them within seven days after demand, or in default they will be costs. recoverable by distress, and if any costs are payable by the claimant they may be deducted from the compensation, oi if such costs exceed the compensation, the excess is to be recover- able by distress or warrant of justices (c). In cases of money deposited in the bank, an order may be Sec. so. made by the Chancery Division upon the Commissioners to depo pay all reasonable charges and expenses, i.e., the costs of the purchase or taking- of the lands (d), of the investment of the moneys in Government or real securities, the costs of re-invest- ment in the purchase of other lands, and of obtaining the proper orders for any of such purposes, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimant-. (a) The costs to be divided between the parties would be merely the formal costs of the proceedings, Bray v. South Eastern Railway Co., 1'.' L.J. Q. B. 11. (?») The decision of the Master is final, and there is no jurisdiction to review his decision, Owen v. London & N. Western Knil. Co., L. R. 3 Q. B. 54; 37 L. J. Q. B. 35 ; 7 B. & S. 758; Sandbach Charity v. N. Staff. Rail. Co., 3 Q. B. D. 1 ; 47 L. J. Q. B. 10. (c) The sections regulating distress are s. 138 ei seq. of the Lands Clauses Act, 1845, see Appendix A. (d) E pari Flower, L. 15. 1 Ch. 599; 36 L.J. Ch. L93; of summoning a jury which was not afterwards required, Morris, L. R. L2 Eq. I is; for decisions upon this section see Chitty's Statutes, vol. iii. p. 1349, iih ed. ; Lloyd on Compensation, 5th ed. L98-215; Cripps on Compensa- tion, 199-204, and see In re Bareham, 17 Ch. D.329 242 Land Drainage and S( w< rs. possession. [nten omitted to lie purchased. The costs occasioned by the owner or occupier refusing to give up possession have to bepaid by him. The Commissioners may deduct such costs from bhe amounl of compensation money, or if they exceed the compensation may recover them by dis- t ress on win-rant of justices (a). The costs of claiming compensation for interest in lands omitted to be purchased (s. L24) are to be paid by the Commisr sinners if the claimant is successful in establishing his right (s. 126.) (a) Sec. 91. The sections regulating distress are ss. 138 ct seq. APPENDIX. APPENDIX A. The following Table shows by arrangement of sec- tions and subject matter the progress and state of the existing law, and has been compiled in order to furnish an easy and comprehensive scheme for purposes of immediate reference. The Acts of Parliament which succeed the Table are in chronological order, and, together with the two incorporated Acts, comprise all the law in the statute bock which relates to public arterial drainage. 24(5 PREAMBLE. 23 Hen. VIII. c. 5. 7 Anne o. 10. 3 & 4 Will. 1 V. c 22. To provide for To enable Com- To define the powers of Commissioners the issue of missioners of of Sewers as to Commissions Sewers to de- 1. Inquiry. of Sewers to rive the sale 2. Execution of new works. all parts of the of copyhold 3. Rating. Realm. lands in addi- 4. Borrowing. tion to free- And to increase the amount of qualifi- hold. cation of Commissioners of Sewers. ISSUE OP A COMMISSION AND A Commission may be issued to persons named by the Lord Chan- cellor, &c. Sec. 2. Form of the Commis- sion. The several causes of awarding the Commission. •2 17 PREAMBLE. I & ."> Vic. c. 15. To increase the powers oft a \;i- tion of Courts of Sewers. 12 & 13 Vk-. e. :>o. To make further provision for enforcing sewers rates. 24 & -i:> Vic c. 133. To amend the law relating to the drain- age of land. Sec. 2. To apply to all Commissions of Sewers in England. Sec. 60. The powers conferred to be cumulative. Sec. 63. Constitution of Elective Drain- age Districts. APPOINTMENT OK COMMISSIONERS OF SEWERS. Sec. 4. Commissions may be issued for new areas on the recommendation oi the Inclosure Commissioners. Sec. 5. Tbe recommendation to be ob- tained on the petition of proprietors after investigation by an inspector. Sec. 6. Definition of proprietors. Sec. 7. Trustees to be deemed pro- prietors in certain cases. Sec. 8. Corporations. Sec. 9. Joint proprietor-. Sec. 10. Provision in case of no pro- prietor. See. 1 1. Power of the inspector. Sec. 12. Expenses o\' obtaining the issue of the Commission. Sec. 13. Evidence of the issue of a Commission. 248 Ql AUFICATION AND OATH 23 lien. VIII. C. ."). Sec. 5. Commis- sioners to take an oath. Foi'm of oath. Sec. 6. Confirm- ation of pre- vious statutes, including 25 Hen. VIII. c. 10, which is to the same effect as sec. 10 (infra) . Sec. 10. No one to sit unsworn [or without having suffi- cient estate, repealed] penalty for so doing. ;{ A 4 Will. IV. c. 2-1. Sec. 1. Qualification. (a) Estate of freehold or copyhold in the county or in an adjoining county of the yearly value of £100; or the heir apparent of such estate of the yearly value of £200. (6) Or an estate of leasehold of 60 years of the yearly value of £100. (c) Or an estate of leasehold of 21 years, of which 10 are unexpired, of the yearly value of £200. (d) Or an agent of corporate bodies, or Commissioners of Sewers, whose estate is of the yearly value of £300. Sec. 2. Quakers may act upon making an affirmation. Sec 3. Additional oath (of qualifica- tion) to be taken by Commissioners. Sec. 5. Ex officio Commissioners not required to qualify. Sec. 4. Penalty on persons acting with- out qualification ; but proceedings of the Commissioners are not to be quashed on account of disqualification. •J lit OF COMMISSIONERS OV SEWERS. 4 & 5 Vic. c. 45. 2-1 & 2"> Vic. c 13;{. 250 DURATION OF 23 Hen. VIII. c.5. Sec. 16. A com- mission to con- tinue for three years — re- pealed. [Ex- tended to 10 years by 13 Elk. c. 9. A Commission or Commissioners discharged by writ of super- sedeas.] 3 & -1 Will. IV. v. -11. Sec. 6. A Commission to continue for 10 years, unless renewed or repealed by writ of supersedeas. LAWS, DECREES, Sec. 3. Commis- sioners autho- rised to make statutes, ordi- nances, &c, for the safe- guard, &c, of the district. Sec. 7. To have power to make laws, ordi- nances and decrees, and amend the same. Sec. 17. How long the Com- missioners' decrees shall endure — [re- pealed.] Sec. 7. The laws, decrees and ordi- nances made by any Court of Sewers to continue in force, notwithstanding the expiration of the Commission. Sec. 45. Laws, &c, of Commissioners, made at a Court held without the district of the Commissioners but within five miles, to be valid. A COMMISSION. 2:,] 4& 5 Vic c I."). L2 A L3 Vic 0. 50 24 .V -i:> Vic. c L33. Sec. 14. Commission to continue until superseded, and vacancies may be tilled up by Her Majesty, by writing under her si. Sec. 3. Commis- sioners of Sewers authorised to ap- point bailiffs, sur- veyors, collectors, expenditors, and other officers, for the safety, repara- tion, &c, of the premises, and to hear the account of the collectors for collecting and laying out of money, and to dis- train for arrear- ages of such col- lection. Sec. 48. Clerks, treasurers, &c, and other officers to account when re- quired, penalty on refusal. Sec. 49. Removing officer from the possession of the property of the Court of Sewers. Sec. 50. Court of Sewers may take security from officers, and sue for forfeitures. Sec. 51. Clerk and treasurer not to be the same person. Sec. 52. Constables to obey the orders, execute the warrants, &C, of Com- missioners of Sewers. MEETINGS OF Sec. 8. Regulations as to meetings of Commissioners. Six to form a quorum. Sec. 9. Special emergency meeting on 10 days' notice ; in the event of the apprehension of imminent danger, a special meeting may be called on shorter notice. Sec. 44. Courts of Sewers may be held five miles outside the district — [repealed.] Sec. 45. All acts, orders, &c, of the Commissioners, done and made with- out the district but within five miles of the limit, to be valid. 258 OFFICERS. !• & ~> Vic. c. 15. L2& 13 Vice. 50. Sec. 3. Power fortheCom- liiissioiicrs to appoinl dyke-reeves for districts and sub- districts. Sec. 4. Quali- fication of d y k e - reeves. Sec. 5. Dyke- reeves to serve witk- out fee or r e w a r d ; penalty on refusal. 24 . Power to Commission- ers to impose fines not ex- ceeding 40s. for breach of laws, orders, &c. Sec. 7. Proce- dure for re- covery of sewers lines by war runt of distress. Sec. 8-'.». Supra, Ratine. Sec. 58. Penalty for draining into sewers without the consent of the Commissioner-. See. 39. Penalty on overseers for n it allowing inspection of the poor rates by the Commissioners of Sewers. Sec. 51. Recovery of penalties before justices. PROCEEDINGS. Sec. 42. Notices by the Commissioners to be signed by their clerk. Sec. 43. Notices binding on assigns. Sec. 44. Notices on owners to be served personally, or left at their places of abode. Sec. 45. Notices to corporations to be left at their principal office. Sec. 46. Service of notice on occupiers. Sees. 47, 1:8, 49. Appeal to Quarter Sessions. (See supra, Rating.) Sec. 50. Decision of questions by justices or arbitration. 51. Recovery of penalties before justices. Sec. 53. Tender of amends. 268 COSTS AND 23 II. mi. VIII. c. 5. 7 Alinr 0. LO. :: ,. 1 Will. IV. C. 22. Sec. 13. Pees of the Commis- sioners and payment of the officers to be paid out of the rates. Sec. 15. The Commission to be obtained free of cha rge. Sec. 16. Clerks, witnesses, surveyors, &c, ninl expenses of working the Commission, to be paid out of the rates. Sees. 29, 36. Costs and expenses of pur- chase of land. {See supra, Purchase of land.) Sec. 55. Commissioners may assess costs of their decrees and proceed- ings, and in default of distress of goods may raise the same upon the lands of the defaulters. Sec. 56. Appropriation of costs when levied. Sec. 58. Clerks and Commissioners to be reimbursed costs and expenses of action, indictment, &c. SAVINGS AND Sec 6. Confirma- tion of other statutes. Sec. 20. Commis- sions in Wales and Counties Palatine. Sec. 15. Nothing in this statute to discharge persons from liability by tenure, &c. Sec. 17. Nothing to preclude Courts of Sewers from causing inquiry and presentment by jury as before. Sec. 20. This Act is not to interfere with the provisions of 16 Geo. III. c. 62, for preventing of prejudice to Sandwich Haven, in Kent. Sec. 61. This Act not to prejudice any local Act or any Commission of Sewers in the County of Middlesex within ten miles of the Royal Ex- change, or affect the charters of Romney Marsh and the Bedford Level. Sec. 62. Saving the rights of the City of London. EXPENSES. 269 •1 & 5 Vic. o. 5. \-2& I!? Vic. <•.,-,((. 24 & 25 Vic. c. 133. Sec. 12. Expensesof obtaining the issue of a Commission of Sewers under this Act to be a charge on the rates if the Commission is issued, but if not, to be paid by the promoters. Sec. 27. Expensesof obtaining a pro- visional order for purchase of land to be paid by the Commissioners out of the rates. Sees. 40, 41. Mortgage of the rates for costs and expenses. Sec. 52. Costs and expenses incurred by Commissioners in legal proceedings may be defrayed out of the rates. EXEMPTIONS. Sec. 13. Saving Sec 2. Act to include any Commission powers of Courts of Sewers in force, but not to extend of Sewers. to Scotland or Ireland or to any part Sec. 14. Indemni- of the Metropolis. ties of 3 & 4 Will. Sec. 60. Powers given by this Act to IV. c. 22, extend- be cumulative. ed to this Act. Sec. 15. This Act Sec. 54. Saving rights of canal owners not to prejudice and wharfingers. any local Act [fol- Sec. 55. Commissioners not to divert lows 3 & 4 Will. rivers so as to injure harbours. IV. c. 22, s. 61] See. 57. Exemptions under local Acts adding Commis- preserved. sioners of the Sec. 61. Nothing in the Act to affect North Level and contracts between landlord and tenant Portsand and of entered into before the passing o\' the the Nenc Outfall. Act. Sees. 16, 17. Saving See. 62. Provision in case of alteration the rights of 1 be of local boundaries. City of Loin Ion and Westminster. [repealed.] Sec. 18. Saving the rights of the Bed- ford Level Cor- poration. 270 LIABILITY, 23 Een. VIII. 3 & I Will. IV. c. 22. Sec. L5. Nothing in the Act to dis- charge persons from liability to repair, &c, by reason of frontage, prescrip- tion, custom, covenant, or grant ; after seven days' notice the Commissioners may do the necessary work, and charge the expenses to the party liable. INTERP.RE- Sec. 60. Court is to mean Court of Sewers. Words in the singular num- ber or feminine gender to include several persons, males and corpora- tions. •271 HAT [ONE TENURE, &c. 2 1 A- 2"> Vic. c. K5:S. Sec. 34. Power to commute liabilities fco repair, &c, by reason of tenure, custom, prescription, or otherwise. Sec. .">•">. * "ommutation may be by way of rent-charge. Sec. 3G. The record of such charge to be deposited with the Clerk of the Peace. Sec. 37. Saving of existing liabilities. TAT ION. Sec. 10. To the same effect as s. 60 of 3 & 4 Will. IT. c. 22, ad ding the words "lands," which are to include lands and heredita- ments of any tenure what- s o e v e r. " Oath" to in- clude affirma- tion or decla- ration. "Dis- trict and sub- district" to in- clude any dis- trict or sub- division with- in the limits of the Commis- sion. Sec. 3. " Watercourse" to include all rivers, sewers, &c, through which water flows. "Persons" to include corporation. " Owner," unless other- wise denned, to have the same mean- ing as in the Lands Clauses Act, 18 !••">. Sec. 38. Owner of land denned for the purposes of that section. 272 23 Hen. VIII. c. 5. STATUTES 23 HENRY VIII. c. 5. Bill of Sewers. A General Act concerning Commissioners of Sewers to be directed in all part* within Ihi.i realm. [a. d. 1531.] Si Stats. 6 H. OUR Sovereign Lord the King, like a virtuous and most gracious prince, , V V i'VyhV-' 'ml lung earthly so highly weighing as the advancing of the common profit, l.'o'll. v'lll. 10.' wealth, and commodity of this his realm, considering the daily greal damages and losses which have happened in many and divers parts of tins his said realm, as well by the reason of the outrageous flowing, surges, and course of the sea in and upon marsh grounds, and other low places hereto- fore through politic wisdom won and made profitable for the great common wealth of this realm, as also by occasion of land-waters, and other out- rageous springs, in and upon meadows, pastures, and oilier low grounds adjoining to rivers, Hoods, and other water-courses; and over that, by and through mills, mill-dams, wears, fish-garths, kedels, gores, gotes, flood-gates, locks, and other impediments in and upon the same rivers and ot her wal er- courses, to the inestimable damages of the common wealth of this realm. which daily is likely more and more to increase, unless speedj redress and remedy be in this behalf shortly provided : Wherein albeit that divers and many provisions have been In 'Core I his time made and ordained, yei none of them are sufficient remedy for reformation of the premises, hath therefore by deliberate advice and assent of his Lords Spiritual and Temporal, and also his loving Commons, in this present Parliament assembled, ordained, IA w hom a > ' . ,. , s 5.0.I locks, fish-garths, flood-gates, and other impediments and annoyances aforesaid; and to distrain for the arrearages of every such collection, tax and assess, as often as shall be expedient, or otherwise to punish the debtors and detainers of the same, by fines, amerciaments, pains, or other like means after your good discretions ; and also to arrest To take and take as many carts, horses, oxen, beasts, and other instruments workmen and nccessary arK l a s many workmen and labourers as for the said works C8 1TKI' r (.'S " timber, &c. and reparations shall suffice, paying for the same competent wages, salary, and stipend in that behalf ; and also to take such and as many trees, woods, underwoods, and timber, and other necessaries, as for the same works and reparations shall be sufficient, at a reasonable price, by you, or six of you, of the which we will thai .!., B. and C. shall be three, to be assessed or limited, as well within the limits and bounds aforesaid, as in any other place within the said county or counties near unto the said Tomako places; and to make and ordain statutes, ordinances and provisions from statutes and fcj me t(1 time, as the case shall require, for the safeguard, conservation, redress, correction, and reformation of the premises, and of every of them, and t he parts lying to the same necessary and behoveful, after the laws and customs of Rumney Marsh, in the county of Kent, or otherwise by any ways or means after your own wisdoms and directions ; and to hear and determine all and singular the premises, as well tit our suit, as at the suit of any other whatsoever complaining before you or six of you, whereof A., B. and C. shall be three, after the laws and customs aforesaid, or otherwise, by any other ways or means after your discrc- Toaward writs tions ; and also to make and direct all writs, precepts, warrants, or other sh'.'-'i''' 'v l ,' ls '" commandments by virtue of these presents, to all sheriffs, bailiffs, and all other ministers, officers, and other persons, as well within liberties as without, before you, or six of you, whereof the said A., B. and C. to be three, at certain days, terms, and places to be prefixed, to be returned and received ; and further to continue the process of the same, and finally to do all and every thing and things as shall be requisite for the due execu- The BUI of Sewers. 275 fcion of the premises, by nil ways and means after yonr discretion therefore we command you, thai a1 certain days and places, when and where ye, or six of yon, whereof the Baid A., />'. and ('. to l>o three, shall think oxpodient, ye do survey the said walls, fences, ditches, banks, gutters, gotes, sewers, calcies, ponds, bridges, rivers, streams, water- c es, mills, leeks, trenches, fish-garths, flood-gates, and other the lets, impediments, and annoyances aforesaid, and accomplish, fulfil, hear, and determine all and singular the premises in duo form, and to bhe effeci aforesaid, after yonr good discretions, and all such as ye shall findnegli , :1]1(1 eent, erainsaviner, or rebelling in the said works, reparations, or reform: to iiensel the premises, or negligent in the due execution <>l this our ( om- mission, that ye do compel them by distress, fines, and amerciaments, or by other punishments, ways, or means, which to yen, or si\ of you, whereof the said A., B. I ''.shall be three, shall seem most- expedienl for the speedy remedy, redress, and reformation of the premises, and duo execution of the same ; ami all such things as by you shall bo made and ordained in this behalf, as well within liberi ies as without, ye do cause the same (irmly to be observed, doing therein as to our justice appertained after the laws and statutes of this our realm, and according to your wisdoms and discretions. 4. " Saved always to US such lines and amerciaments as to us thereof shall belong: And we also command our sheriff or sheriffs of our said an B- county or count ies of that they shall cause to come before Sheriffs shall you, or six of you, of which A., B. and C. to be three, at such days and & c . places as ye shall appoint to them, such and as many honest men of his or their bailiwick, as well within liberties as without, by whom the truth may besi be known, to inquire of the premises; commanding also all other ministers and officers, as well within liberties as without, that they, and every of t hem, shall be attendant to you in and about the due execution of this our commission. In witness whereof we have caused these out- let t ers-pal cut bo be made. Witness ourself at Westminster, the day of in the year of our reign." 5. And it is also enact ed, t hat every such person as shall be named The Commis- Commissioner in the said Commission, after he hath knowledge thereof, ° ■ an oath. shall effectually put his diligence and attendance in and about the i tforcedby tion of the said Commission. And before he shall take upon him the jj g j ' execution of the said Commission, he shall take a corporal oath before the Lord Chancellor, or before such to whom the said Lord Chancellor shall direct the King's Writ of Dedimus Potestatem to take the same, or before the Justices of the Peace in the (Quarter Sessions holdon in the shire where such Commissions shall be directed; the tenor of which oath hereafter ensueth : •• Ye shall swear, tiiat you, to your cunning, wit and power, shall truly The form of and indifferently execute the authority to yon given by this Commission of °' u ' Sewers, without any favour, affection, corruption, dread or malice to bo borne to any manner of person or persons ; and, as the case shall 1 eqnire, ye shall consent, and endeavour yourself for your part, to the best of T 2 276 23 Hen. VIII. c. 5. your knowledge and power, bo the making of such wholesome, just, equal, and indifferent laws and ordinances, as Bhallbe made and devised by the most discreet ami indifferenl number of your fellows, being in Commission with you, for bhe due redress, reformation, and amendment of all and every such things as are contained and specified in the said Commission, and the same laws and ordinances to your cunning, wit and power, cause to 1)0 put in due execution, without favour, meed, dread, malice, or affection ; as God yon help and all Saints." A confirmation 6. And it is also enacted by the authority aforesaid, that all and every of other . statute Act and ordinance heretofore made concerning t lie premises, or as altered, &c. any of them, as well as in the time of our Sovereign Lord the King that now is, as in the time of any of his progenitors, kings of this realm of England, not being- contrary to this present Act, nor heretofore repealed. from henceforth shall stand and be good and effectual for ever, and to he put in duo execution according to the true meaning and purport of the same. Commissioners 7. And over that bo it enacted, that the Commissioners hereafter to be may make name d in any of the said Commissions, according to the purport and effect, OH ItTS, OfcCi J _ of the same Commissions, have full power and authority to make, constitute and ordain laws, ordinances and decrees, and further to do all and every- thing mentioned in the said Commission, according to the purport, effect, words and true meaning of the same ; and the same laws and ordinances so made, to reform, repeal and amend, and make new from time to time as the cases necessary shall require in that behalf. Commissioners 8. Provided alway, and it is enacted, that if any person or persons, 1 tnake heino- assessed or taxed to any lot or charge for any lands, tenements or decree upon 6 .,'.,,. „ . . -, £ , . i srefus- hereditaments, within the limits of any Commission heroatter to be 'an'tts 8 '*! 8 ' directed, do not pay the said lot and charge according to the ordinance extended to nm \ assignmeni of the Commissioners having power of the execution of the 7\\m'''' , ' 1 i . 1: i'n. , ] S ' said Commission, by reason whereof it shall happen the said Commissioners having power of the execution of such Commission, for lack of paymeni of such lot and charge, to decree and ordain the same lands, tenement s and hereditaments from the owner or owners t hereof, and their heirs, and the heirs of every of them, to any person or persons for term of years, term of life in fee-simple or in tail, for payment of the same lot and charge, that then every such decree and ordinance so by them made and ingrossed in parchment, and certified unto their seals into the King's Court of Chancery, with the king's royal assent had to the same, shall hind all and every person or persons, that at the making of the same decree had any interest in such lands, tenements, or hereditaments, in use, possession, reversion or remainder, their heirs and Eeoffees, and every of them, and not to be many- wise reformed, unless it be by authority of Parliament hereafter to be summoned and holdcn within this realm. Such decree 9. And also it is provided by authority aforesaid, that the same laws, shall bind the or< j mance s and decrees to he made and ordained by the said Com- [Ratesmade missioners, or six of them, by authority of the said Commission, shall leviable bj |iini| ag W( . n (h „ i andg] tenements :', II, n. VTTI. c 5. Treble costs. Pei , &c. to Commissioners iiiid clerk. How commie- l.ull be issued v. itliin the Duchy of Lancaster. And iet s. 18.] I obtaining the Cununi 3! ions. shall endure three yea actions; and upon the trial of thai issue the whole matter to be given on both parts in evidence according to the very truth of the same. 12. A.nd after such issue tried i\>\- the defendant, or nonsuit of the plaintiff after appearance, the Bame defendani to recover treble damages by reason of his wrongful vexation in thai behalf, with his costs also in that □ baini d, and I hal to be assessed by the same jury, or writ to inquire of damages, as the cause shall require. 13. Anil it is also enacted, that every of the said Commissioners shall have and perceive four shillings for every day that they shall take pain in the execution of this Commission of Sewers, and one clerk, by them to be assigned, two shillings for every day, of the rates, taxes, lots, and wains ttal] lu- assessed or lost by the authority of the said Commission, and to be levied and paid by their discretions. And thai the said Commis- sioners, or six of them, shall have power and authority to limit and assign of the same rail's, taxes, lots, and wains, by their discretions, such rea onable sums of money to the said clerk, for writing of books and process concerning the said premises, and to the collectors, expenditors, and such other as shall take pain in the due execution of the said Com- ion, as by the discretions of the said Commissioners, or six of them, shall be thought reasonable. 14. Provided alway, that whensoever, and as often as such Commission as is afore Limited shall be made and directed to any person or persons, for the reformation and amendment of or in any of the premises specified in the said Commission, within the fees, liberties, or possessions of the Duchy of Lancaster, that then such Commissioners, as shall execute any such Commission, shall be always named and appointed by the discretion of the Lord Chancellor and Lord Treasurer of England, and the said two Chief Justices of either Bench, and the Chancellor of the said Duchy for the time being, or three of them, whereof the said Lord Chancellor and the Chancellor of the Duchy to be two; and that in every such case two Commissions shall be awarded and mad.' according to the tenor of the Commission above expressed, one thereof under the Greai Seal of England and the other under the seal of the same Duchy, as beforetime hath been accustomed; anything afore rehearsed in this Act to the contrary hereof notwithstanding. 15. And it is further enacted, that the said Commissions from time to time, as the ease shall require, shall be had and obtained without any money, or other charge to bo paid for the seals or writing of the same, unless it be to the king, two shillings sixpence for the seal of every Commission, as hath been accustomed, and for the writing and inrolling of, any one Commission, five shillings, and not above. 16. (a) i And it ib further enacted, thai every Commission to be made by authority of this Aci shall endure and continue Eor the term of three yeai next after the teste of the Com mission] ; nevertheless after any (a) Words within brackets repealed by Stat. Law. Rov. Act, 1863. The Bill of Sewers. 279 Commission made and delivered era! of the King's Courl of Chancery, th( King's Highness BhaU always al his pleasure, by his wrii of supei iKliz". urn of bis said Court of Chancery, al any time discharge as well every Bnch ■'• '•'• '■ i mission, as every Commissioner thai BhaU be made or named by m<; authority of thisActj afterwhich discharge the said Commissioner BhaU bave oo power or authority to proceed in the execution of their Commission, nor in am thing by authority of this Act. 17. («) [Provided alway, that such laws, Aces, decrees and ordinances Duration, &c, .ill happen to be made by the said Commissioners, according to the doners' d tenor of their Commission, or by authority of this Act, shall stand good E?u' •** 13 ^> and effectual, and be put in due execution so long time us their Commission endureth, and ao Longer j excepi the said laws and ordinances be made and engrossed in parchment, and certified under the seals of the said Commis- sioners into the King's Court of Chancery, and then the king's royal assent be had to the same ; anything contained in this present Act to the contrary hereof notwithstanding.] is. Provided also, that whensoever and as often as such Commission as Commie is afore limited shall be made and directed i" any person or persons for the county Pala- ref ormation and amendment of or in any of the premises specified in the tines, Ac. said Commission, within the tees, liberties and possessions ot the 1 rinci- 8 , 20.J pality of Wales, the County Palatine of Chester, or within the fees, liberties and possessions of any other place where there is liberty and jurisdiction of County Palatine, that in every such case two Commissions shall be awarded and made according to the tenor of the Commission above expressed, one thereof under the Great Seal of England] and the other under the usual seal of the County Palatine, in manner and form as is above provided for the Duchy of Lancaster; anything afore rehearsed iu this present Act to the contrary notwithstanding. •• The King's royal assent (See s. 17) shall be certified into the Chancery (s. 19). [See now 13 Eliz. c. 9, s. 1]. 20. Provided alway, That the Chancellors, and such other as shall have Commisi the custody of the seals of the said Principality of Wales, or the County 4 C . f jnWs Palatine of Chester, or within the fees, liberties, and possessions of any and Count ■...,.. p /-< ,, , . ' Palatine. other place where there is liberty and jurisdiction ot County Palatine, upon [_,sw. s. 14, 18.] reasonable request, and upon the sighi of the Commission under the K Great Seal of his Chancery, shall without delay makcoul another Commis- sion under the seal of the said County Palatine, according to the tenor of the King's Commission to them shewed under hi- ( I real Seal ; and to t bose Commissioners as shall be named bj the Lord Chancellor, Lord Treat and the two Chief Justices, or bj three of them, whereof the Lord Chan- cellor to be one, excepi ii be within the fees and Liberties of the Duchj of Lancaster, within which fees and Liberties the Commissioners shall be named, and Commissions made, as is afore ordained by this Act ; anything [a) This section is repealed by Stat. Law. Rev. Act, 1SG3. 280 7 Anne, c. 10. contained in the said Act, or in any proviso thereunto added and annexed, to the contrary thereof notwithstanding. This Act to endure for twenty years. [Made perpetual, 3 Sf 4 /•.'. ti, c. 8, s. 1. : Explained and amended, 25 Hen. VIII c. 10; 13 Eliz. c. 9: Extended to the sea-sands in Glamorganshire, 1 Maria st. .'5, c. 11. — to all water-courses full inn into the Thames near London 3 Jac. 1 c. 14 — to copyhold lands 7 Anne, c. 10.] 7 Anne, c. 10. An Act for rendering more effectual the laivs concerning Commissioners of Sewers. [a.d. 1708.] Whereas by the laws now in force concerning Commissioners of, Sewers, it is provided, that if any person or persons being assessed or taxed to any lot or charge for any lands, tenements, or hereditaments within the limits of any such Commission, do not pay the said lot and charge, according to the order and assignment of the Commissioners, having power of the execu- tion of the said Commission, that then the said Commissioners, for lack of p:i\ merit of such lot and charge, may decree and ordain the said lands and tenements, from the owner or owners thereof, and their heirs, and the heirs of every of them, to any person or persons, for term of years, term of life, fee-simple, or fee-tail, for payment of the same lot and charge, the said decrees and ordinances to be executed in such manner, as by the said laws Decrees of Com- now in force is directed and appointed; and it is thereby provided, that s'!i" l \.r" to bind ' '"' Bame decrees and ordinances shall bind all and every person and persons every person, that at the making of the same decree had any interest in such lands, tene- ments, and hereditaments, in use, possession, reversion, or remainder, their heirs and feoffees, and every of I hem ; and shall also hind as well the lands, tenements, and hereditaments of the King of England, as all and every other person and persons, and their heirs, and such their interest, as they shall fortune to have in any lands, tenements, and hereditaments, or other casual profit, advantage, or commodity whatsoever they he, whereuuto the said laws, ordinances, and decrees shall in anywise extend, according to the true purport, meaning, and intent of the] said laws ; but the said Laws of Sewers now in force have been found defective, in that sufficient poAver and authority is not thereby given to Commissioners of Sewers to make sale of copyhold or customary lands within the limits of their Commission r i amissioncrs for the causes aforesaid ; for remedy whereof, be it enacted by the Queen's n-ivuM 'n'T'ue, tnos * Excellent Majesty, by and with the advice and consent of the Lords Lot assessed on Spiritual and Temporal, and Commons, in this present Parliament assem- decreethe " bled, and by the authority of the same, that from and after t lie five and same from the twentieth day of March, in the year of our Lord one thousand seven hundred and nine, it shall and may be lawful to and for the Commissioners Scire rs Acts Amemlmcni. 281 authorised by commission From her Majesty, her heirs, ami aci any six or more of ilu'in, to put in execution the laws now in force concern- ingsewers, for non-payment of any lot or charge assessed or charged upon any copyhold or customary lands within the limits of their Commission; and by the power ami authority of die said Commission of Sewer-, to and ordain the said copyhold or customaiy lands so charged, Prom the owner or owners, and their heirs, and the heir- of every of them, to any person or persons, for such estate and interest therein, as the said owner or owners thereof, or any claiming in remainder under them at the time of Such decree made, had in the same copyhold lands, tenements, and hereditaments; the said decrees to he made and executed, as decrees con- cerning freehold lands are by the said laws now in force, to be made and executed. 2. Provided always, that all and every person or persons, to whom any Thebuyereof sueh sale of copyhold or customary lands or tenements shall lie made, shall ^ mi jVt!!?eJr'e',- before such time as they or any of them shall enter, or take any profit of with ,,ir lords the same lands or tenements, agree and compound with the lords of the for the manors, of whom the same shall he holden, for such lines or incomes, as accustomed heretofore hath been most usual and accustomed to he yielded or paid lords to admit therefore; and that upon every such, agreement or composition, the said II "" 11 "ants. Lords for the time being, at the next court to be holden at or for the said manors, .-hall not only grant to such vendee or vendees, upon request, the same copyhold or customary hinds or tenements by copy of court-roll of the said manors, for such estate or interest as to them shall be so decreed or Mild, and reserving the ancient rents, customs, and services, hut also shall in the same court admit them tenants of the same copyhold or custo- mary lands, as other copyholders of the same manors have been wont to lie admitted, anil to receive their fealty .accordingly. .'!. And be it further enacted and declared, that it shall and may be Six Commis- lawful to and for t he Commissioners of Sewers, or anv six or more of them, si °uers " ,:l . v ''. v . .' • warrant em- by warrant under t heir hands and seals, to give authority t to any person or power any persons to levy the sums of money by them from time to time to be Jjff^S essments assessed or taxed upon the lands, meadows, marishes, or grounds, liable or by distress and chargeable with any sesses, taxes, impositions, or charges, by authority of xl '' their said Commission, by distress and sale of the goods of such person or persons that shall not pay, or refuse to pay the same; and the overplus of the money arising upon such sale, a Iter deduction of the reasonable charges of making such distress and sale, shall be restored to the owner or owners of the goods so distrained. 3 & I Wir.r,. IV. c. 22. .In .1.-/ ( • a,, i' nd the Laws relating to Sewers. 28th Jum . Is:i3.] Whereas an Act was passed in the twenty-third year of the reign of His 23 Hen. VIII. Majesty King Henry the Eighth, concerning Commissions of Sewers to be Ct "• 282 3 & 4 117//. TV. c. 22. directed into all puns within the then realm of England, including the Principality of Wales, in the manner and according to the Form, tenor, and effecl in thesaid \n set Forth, and which said An was made perpetual by an Act. passed in the third and Fourth years of the reign of Mis Majesty King Edward the Sixth, intituled an Act For the continuance of the statute c.8. ' ' of Sewers, and was amended and altered by an Act passed in the thirteenth \i-Av of t lie reign of Eer Majesty Queen Elizabeth, intituled an Act for t be Commission of Sewers: And whereas great difficulty, inconvenience, and expense are found to arise by reason that the laws relating to sewers are in manj respects defective: And whereas doubts have arisen as to the 13 Eli/., c o. extent of the powers given to the Commissioners of Sewers by the said recited Acts and the Commissions issued in pursuance thereof, and par- ticularly as to the legal mode of conducting inquiries by means of juries impanelled and returned by sheriffs, bailiffs, and oilier returning officers under the authority of the said recited Acts, and also as to the legal power of Courts of Sewers to decree and order new works to be made and exe- cuted tor I he better defending, draining, sewing, and securing the lands within the limits of their respective Commissions, and to grant, impose, and levy rates, taxes, scots, or assessments for or in respect of such new works, and to decree and order the taking up and borrowing of money at interest to repay the costs and charges of such new or any extraordinary or other works, so as to charge and recover of and from the owners and occupiers for the time being of lands, tenements, and hereditaments the amount of money so borrowed or any part thereof, and thereby to dis- tribute such costs and charges fairly and equitably among the parties w bo shall or may from time to time receive benefit or avoid damage by or from the same: And whereas it is expedient to increase the amount of qualifi- cation of Commissioners of Sewers, and that other provisions should be made tor the better execution of the powers by law vested or to be vested in Commissioners of Sewers: May it therefore please your Majesty thai it may be enacted; and be it enacted by the King's must Excellenl Maiesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of Qualification ,,[ the same, that no person who has not already acted as a Commissioner Commissioners. un der any Commission of Sewers already issued shall be qualified or capable of becoming or acting as a Commissioner in the execution of any Commission of Sewers unless such person shall be, in his own right, or in right of his wife, in the actual possession or receipt For life or for a larger estate of the rents and profits of lands, tenements or hereditaments situated in the county in which he shall act as a Commissioner, or in any adjoining county, of Freehold or copyhold tenure, or held For a term of not less than sixty years absolute, or determinable with a life or lives, of the clear yearly value of one hundred pounds above reprizes, or held for a term of years originally granted for no! less than twenty-one years, and of which ten years at the least shall then be unexpired, of the clear yearly value of two hundred pounds above reprizes, or shall he heir apparent of a person possessed of freehold or copyhold lands, tenements, or heredita- ments situated in such county as aforesaid, or in any adjoining county, of Snrr.rx Arts Amend/merit. 283 the clear yearly value of two hundred pounds above reprizes, or unless such person Bhal] be the agent duly appointed by writing under the seal of :ih y body politio or corporate, or under the band of any person uoi being himself present, and acting as a Commissioner in the execution of the Commission of Sewers, under or by virti E which such agent Bhall and which body politic or corporate shall Eor the time being be in the entsand profits of freehold or copyhold lands, tenements or hereditaments situated in such county as aforesaid, or in any adjoining county, and which person making such appointment thai! Eor the time being be, in his own right or in right of his wife, in the actual possession or iv. eipt of the rents and profits of freehold or copyhold lands, tenements or hereditaments situated in such county as aforesaid, orinanj adjoining county, and which lands, tenements or hereditaments, whether so belonging to such body politic or corporate, or to such other person, shall be actually taxed under or by virtue of the Commission of Sewers in respect whereof such agent shall act and shad be of the clear yearlj valueof three hundred pounds above reprizes, or unless such agent shall, before he acts, deliver his written appointment to the clerk to such Commission of Sewers, or bis , to be filed by such clerk among the records or proceedings of the Commissioners acting in the execution of such Commission: Provided always, that in cases where Commissioners of Sewers run into more than mnty, the qualification hereinbefore provided may be situated either partly in each of the counties into which such Commission shall run, or wholly in any one of such counties: Provided that nothing in this Act ted shad extend to give a qualification to any person as agent after he shall have ceased to be such agent. •_'. And be it Eurther enacted, that if any person being a Quaker shall Quakers may act as ( ommis- have been or shall hereafter be appointed a Commissioner ot bewers, and doners upon shall be in other respects qualified according to the provisions of the said ^^ reciti d Acts and of this Act. it. shall be lawful Eor such person, on making his solemn affirmation to the effect of the oath prescribed by the said recited Act of the twenty-third year of the reign of King lien. VIM., before the person or persons who for the time being shall be empowered by- law to administer such oath, and also upon his making and subscribing the affirmation directed by this Act, to act as a Commissioner of Sewers, without being subject, or liable to any penalty or forfeiture imposed by the said last recited Act for acting without having taken the oath therein contained. 3. And be it further enacted, that every such Commissioner before he Oath to be shall act in the execution of his office shall, in addition to the oath P r0 - oonmuMionera scribed by the said re.ited Act of the twenty-third year of the reign of beforeacl King lien. VIII. (or the affirmation in lieu i hereof substituted by this \ :niv, \u tenements, or hereditaments to be purchased by the said Commissioners l cjinmisMOiic.'s. l J of Sewers, shall be expressed in the following or some similar form of words, as the circumstances of the case may require : — " I, of in consideration of the " sum of to me paid by six or more of the " Commissioners of Sewers acting in and for several limits [here " describe the limits as set forth in flu; Commission of Sewers], do " hereby grant and release to the Commissioners of Sew ers act bag in "and for the said limits all [describing the premises to be con- " veyecV], and till my right, title, and interest in and to the same '■ and every part thereof, to hold to the said Commissioners, their " successors and assigns for ever, by virtue of the several Acts and " Laws now in force concerning sewers. In witness whereof I have " hereto set my hand and seal this day of in the " year of our Lord ." Where persons -''• ^"d be it further enacted, that if any such body politic, corporate, shall neglect or or collegiate, corporations aggregate or sole, tenants foi life or in tail, ftc, Commis- ' husbands, guardians, trustees, or feoffees, committees, executors, adminis- . ^'j.^^"' trnturs. or any other person interested in any such lands, tenements, herifl t<> hereditaments, or premises, or sustaining any damage as aforesaid, upon \xay. notice to him or them given or left in writing at the dwelling-house or place of abode of such person, or of the principal officer, of any such bodies politic, corporate, or collegiate, corporations aggregate or sole, tenants for life or in tail, or at the house of the tenant in possession of any such lands, tenements, hereditaments, or premises, shall, for the space of Setvers Acts Amendment. 295 thirty days M< -\t after such aotioe given or left as aforesaid, neglect or refuse to treat, or si mil not agree in the premises, <>r by reason of absence shall be prevented from treating, then and in every such case the said Commissioners of Sewers, or any six or more of them, are bereby empowered from time to time to issue out their warrant or warrants under t heir hands and seals to the sheriff, bailiff, or other returning officer of i be county or place wherein the matter in question shall lie, or if such sheriff, bailiff, or other returning officer shall be immediately interested in such maiter, then to one of the coroners of such county or place, commanding such sheriff, bailiff, or other returning officer, or coroner, to impanel, summon, and return a jury j and the said sheriff, bailiff, or other returning officer, or coroner, is hereby required accordingly to impanel, summon, and return twenty-four men qualified according to the laws of this realm to be returned for trials of issues joined in 1 1 is Majesty's Courts at Westminster; and the persons so to be impaneled, summoned and returned are hereby required to come and appear before the justices of the peace for the county or place in which such hinds, tenements, hereditaments or premises shall lie, or the matter in question or dispute shall arise, at some Couri of General or Quarter Sessions of the peace to be bolden in and for the - county and place, or at some adjournment thereof, as in such warrant or warrants shall be appointed, in order that out of them a jury of twelve may be sworn to impure touching the mailers in question; and in case a siiHirieni number of jurymen shall not appear at such time and place the said sheriff , bailiff, or other returning officer or coroner shall return other honest and indilTerent men that can speedily be procured to attend that service, to make up the said jury to the number of twelve; and all parties concerned mav have their lawful challenges against any of the said Jury may be , 7, , i , ■ challenged. jurymen; and the clerk of the peace for the Boid county or place, or his deputy, is hereby empowered and required to summon before the said Witi stohe • ' .. , . „ , ,, , , , • ■ summoned and justices all Such persons as shall be thought necessary to lie examined a£ witnesses touching the matters in question, and maj order and authorise oath, the said jury, or any six or more of them, to view the place or places or mallei^ in controversy; which jury (upon their oaths, to be administered ^"-^I^ 1 " by the said justices, which oaths, as also the oath to such person as shall be called upon to give evidence, the said justices are hereby empowered to administer) shall inquire of, assess, and ascertain the sum or sums of money to be paid for the purchase of such lands, tenements, or heredita- ments, or t he recompense to be made for damages thai may or shall be sustained as aforesaid, and to settle and ascertain in what proportions the sum or sums of money so assessed shall be paid to the several persons interested in the premises ; and the said justices shall give judgment for such purchase moneys or recompense so to be assessed by such juries; which said verdict, and the judgmenl thereupon pronounced as aforesaid, Verdict of the shall be binding and conclusive to all intents and purposes ogoinsl all bmcling. parties, bodies politic, corporate and collegiate, and all persons whomsoever. 27. Provided always, and be it further enacted, that if any such sheriff, < •> > , uiuv impose a bailiff, or other returning officer, or coroner, or his deputy or agent, shall 20G S & 4 Will. IV. c. 22. ine on sheriff , make default in the premises, every such person shall for every offence makinff default ' l "' n "' t ""' snm n * twenty pounds; and if any person so summoned and returned as aforesaid on such jury shall not appear, or appearing refuse to be sworn, or being sworn refuse to give his verdict, or in any oilier manner wilfully neglect his duty, contrary to the true intenl of this Act, or if any person so summoned to give evidence shall not appear, or appearing refuse to be sworn or examined or to give evidence, every person so offending, having no reasonable excuse, to be allowed by the said justices, shall for every such offence forfeit and pay such sum as the said justices shall appoint, not exceeding the sum of live pounds for any one offence. 28. And be it further enacted, that all the agreements, contracts, sales, and conveyances, and also all verdicts and judgments, which shall be made and given in relation to any such lands, tenements and hereditaments as aforesaid (such verdicts and judgments being certified by the clerk of the peace of the county or place in which such verdict and judgment shall have been given), shall be delivered to and deposited with the clerk of the sewers for the county, limits, or district wherein such lands, tenements, or hereditaments are situate, and shall be tiled with the rolls of the Court or Commissioners of Sewers of such county, limits, or district'; and the same, or a true copy thereof, shall be admitted as evidence in all courts whatsoever ; and all persons shall have liberty to inspect the same, and take copies thereof, upon paying for every such inspection the sum of one shilling, and for every such copy not exceeding seventy-two words the sum of fourpence, and so in proportion for any greater number of words. Agreements to be filed with tlic clerk of sewers. By whom costs of jury and wit aesses tu be paid. 29. And be it further enacted, that in case any such jury or juries shall deliver a verdict for more money as a satisfaction for such lands, tenements, or property, or for any such loss or damage, than that which shall have been offered by such Commissioners for the same before the summoning or returning the said jury or juries, then and in such case the costs and expenses of .summoning and ret liming t he said jury and witnesses, and all other expenses attending the hearing and determining of such difference, shall be bome and paid by the said Commissioners out of the same fund as the said purchase or compensation money is hereby direct ed to be paid, and such costs and expenses shall be ascertained and settled by an officer of one of His Majesty's superior Courts of Record at Westminster, to be noniinaied, in cast; of dispute, in the County of Middlesex by the Lord Chief Justice of tho Court of King's Bench, and in every other county by the senior judge of the gaol delivery for the time being ; but if any such jury or juries shall deliver a verdict for no more or for less money than shall have been offered by the said Commissioners before the summoning such jury or juries, then such costs and expenses (to be ascertained and settled in like manner) shall be borne and paid by the person with whom such Commissioners shall ha\ e such cont roversy or dispute, and shall and may lie le\ ied by distress and sale of I he goods and chat I els of the person liable to pay the same, by warrant under the hands and seals of two justices of the peace for the county or place wit bin which such verdict and judgment Sewers Acts Amendment. 297 shall have been given; and the overplus (if any), after such costs and Promwhat expenses, and the charges of such distress and sale, arc deducted, shall be an dcompensa- returned. upon demand, unto the owner of such goods and chattels. ''"'' moneys are 1 paid. :i0. And be it further enacted, thai every sun of money and recompense to be agreed for or assessed as aforesaid shall be paid for out of any moneys in the hands of the said Commissioners which may be levied on the messuages, tenements, hinds, and hereditaments which shall receive benefil or avoid damage by or from such widening, straightening, deepening, repairing, and amending as aforesaid, or by or from making and maintaining any new walls, hanks, sewers, guts, gotes, calcic slnic (S, flood-gates, cuts, ami other works, aids, and defences; and upon payment to such parties or persons, or their agents, or left tit their respective usual ] laces of abode, or with the tenant in possession of such lands, tenements, hereditaments, am! premises, or into the Bank of England in manner directed by this Act (as the case may be), then such lands, tenements, hereditaments, and premises respectively shall he vested in such Commissioners, and shall and may be taken and used for straightening, widening, deepening, repairing, and amending such rivers, streams, ditches, gutters, sewers, and water courses, or for making and maintaining any new walls, hanks, sewers, guts, gotes, calcies, sluices, Hood-gates, cuts, and other works, aids, and defences ; and all parties and persons whomsoever shall he divested of all right and title to such lands, tenements, and hereditaments. 31. And he it further enacted, that if any money shall he agreed or Application - sed to he paid for the purchase of any lands, tenements or hcredita- money exceed- ments purchased, taken or used by virtue of the powers of this Act, by mg E200. an\ Commissioners of Sewers, which shall belong to any hody politic, corporate or collegiate, or to any feoffee in trust, executor, administrator, husband, guardian, committee or other trustee, or for or on behalf of any infant, lunatic, idiot, feme covert, cestuique trust, or to any other person whose lands, tenements or hereditaments are or may he limited in strict or other settlement , or to any person under any other disability or incapacity whatsoever, such money shall, in ease the same shall amount to or exceed the sum of two hundred pounds, with all convenient speed he paid into the Bank of England in the name and with the privity of the Accountant- General of the Court of Exchequer, to be placed to his account there , parte the Commissioners of Sewers for whom such lands, tenements or hereditaments shall he taken, pursuant to the method prescribed by an Act passed in the first year of the reign of his late Majesty King George 1 Geo. IV. c. 36. the Fourth, intituled " An Act for the better securing moneys and effects paid into the court of Exchequer at Westminster on account of the suitors of the said court, and for t he appoint ment of an Accountant-General and two masters of the said court, and for other purposes " and the general orders of the said court, and without fee or reward; to the intent that Such money shall he applied, under the direction and with the approbation Of the saiil court, to lie signified by an order made upon a petition to he preferred in a summary way by the person who would have been entitled 298 3 & 4 Will. IV. c. ±2. to the rents and profits of the said lands, tenements and other heredita- ments in the purchase or redemption of the land tax, or in the discharge <'l any debt or debts, or such other incumbrances, or pari thereof, as the said coui'f shall authorise to be paid, affecting the same lands, tenements, or hereditaments, or affecting other lands, tenements, or hereditaments stand- ing settled i herewith to the same or the like uses, trusts, intents, or purposes ; or where such money shall not be so applied, then the same shall be laid out and invested, under the like direction and approbation of the said court, in the purchase of ot her lands, tenements, or hereditaments, which shall lie conveyed and settled to, for, and upon such and the like uses, trusts, intents and purposes, and in the same manner, iis the lands, tenements, or hereditaments which shall be so purchased, taken, or used as aforesaid stood settled or limited, or such of them as at the time of making such conveyance or settlement shall be existing undetermined and capable of taking ell'ect ; and in the meantime and until such purchase shall be made the said money shall, by order of the said court, upon application thereto, be invested by the said Accountant-General in his name in the purchase of Three Pounds per centum Consolidated or Three Bounds per centum Reduced Bank Annuities ; and in the meantime and until the said Bank Annuities shall be ordered by the said court to be sold for the purposes aforesaid the dividends and annual produce of the said Consolidated or Reduced Bank Annuities shall from time to time be paid, by the order of the said court, to the person who would for the time being have been entitled to the rents and profits of the lands, tenements, or hereditaments to be purchased as aforesaid, in case such settlement or purchase were made. Application of 32. Provided always, and be it further enacted, that if any money so compensation agre ed or assessed to be paid for any lands, tenements or hereditaments money when ° ' » . less than £200 purchased, taken or used for the purposes aforesaid, belonging to any tlmi'tiio 1 ' SS corporation, or to any person under any disability or incapacity as aforesaid, shall be less than the sum of two hundred pounds, and shall amount to or exceed the sum of twenty pounds, then and in all such cases the same shall, at the option of the person for the time being entitled to the rents and profits of the lands, tenements or hereditaments so purchased, taken or used, or of his guardian or commit lee in cases of infancy, idiotcy or lunacy, to be signified in writing under their respective hands, be paid into the Hank of England in the name and with the; privity of the said Accountant- General, and be placed to his account as aforesaid, in order to be applied in manner hereinbefore directed; or otherwise the same shall be paid, at the like option, to two or more trustees, to be nominated by the person making such option and approved by six or more of the Commis- sioners taking such lands, tenements or hereditaments, such nomination and approlial ion to be signified in writing under the hands of the nominating and approving parlies, in order that such principal money and the dividends and interest arising therefrom may be applied in manner hereinbefore directed, so far as the case be applicable, without obtaining or being required to obtain the direction or approbation of the said Court of Exchequer. Servers Acts Amendment. 299 33. Provided also, and be i1 further enacted, thai when such money so Applies! I , „ , . , 11)1 i ,i ,i coi msation agreed or assessed to be paid as before mentioned Bhall be less than the m w] sum of twenty pounds, then mid iii every Buch case the same shall belessthan 620. applied to the use of tin' person who would for the time being have been entitled to the rents and profits of the lands, tenements, or hereditaments so purchased, taken, or used as aforesaid, iii such manner as the said Commissioners, or any six or more of them, shad think lit ; or in ease of Lunacy, idiotcy, or infancy, then to Ids guardian or committee, to and for the use and benefil of such person so entitled. 34. And he it further enacted, that where any question shall arise Personam touching the title of any person to any money to be paid into the Hank of ^eem^* England in the name and with the privity of the Accountant- General of lawfuDy the said Court of Exchequer, In pursuance of this Act, for the purchase of piViniM^'mini anv lands, tenements, or hereditaments to he purchased in pursuance of the contrary J , . . . . , , shall be slinwii this Act, or to tiny l.ank annuities to he purchased with any such money, or ,,, , h( . Court of to the dividends or interest of any such bank annuities, the person who Exchequer, shall have been in possession of such lands, tenements, or hereditaments at the time of such purchase, .and all persons claiming under such person, or under the possession of such person, shall lie deemed and taken to have been lawfully entitled to such lands, tenements, or hereditaments accord- ing to such possession, until the contrary shall he shown to the satisfac- tion of the slid Court of Exchequer; and the dividends or interest of the bank annuities to be purchased with such money, and also the capital of such hank annuities, shall he applied and disposed of accordingly, unless it shall be made to appear to the said court that such possession was a wrongful possession, and thai some other person was lawfully cut it led to such lands, tenements, or hereditaments, or to some estate or interest therein. :!.">. And lie ii further enacted, thai in ease the person to whom any sum if compensation or sums of money shall he assessed or agreed for the purchase of ;my lands, J 1 | 1 1 'J'!' | '\ 1 '~ ,' tenements, or hereditaments to be purchased by virtue of this Act shall Qotmade.i refuse to accept the same, or shall not be able to make a good title to the ^ommonej premises to the satisfaction of the said Commissioners or any six or more assessed cannot ,. , . i ,i e in be Found mi mey of them, or in case such person to whom such sum or sums ot money shall t ,, , K , !i;nil mll , be so assessed or agreed to be paid as aforesaid cannol be found, or if the tlie bank,sub- ° r ject to order of person entitled to such lands, tenements, or hereditaments be not mown court of or discovered, then and in every such case it shall and may be lawful to Exchequer. and for the said Commissioners, or any six or more of them, to order the said sum or sums of money so assessed or agreed to be pa id as aforesaid to be paid into the Hank of England in the name and with the privity of the Accountant- General of theCouri of Exchequer, to be pi a ceil to his account to the credit of the parties interested in the said lands, tenements, or heredita- ments (describing them), subject to the order, control, and disposition of the said Court of Exchequer; which said Court of Exchequer, on the application of any person making claim to such sum or sums of monej or any pari thereof, by motion or petition, Shall be and is hereby empowered, in a summary way of proceeding, or otherwise, as to the said court shall seem meet, to 300 3 & 4 117//. IV. c. 22. Court of Exchequer may direct payment ni expenses in cases where purchases of other lands arc made. order the same bo be laid oul and invested in the public funds, and to order distribution thereof, or payment of the dividends thereof , according to the estate, title, or interest of the person making claim I hereunto, and in make such other order in the premises as to the said court shall seem just and and reasonable; and the cashier of the Bank of England who shall receive such sum in- sums id' money, is bereby required to give a receipt for the same (mentioning and specifying for what and for whose use the same is received) to such person as shall pay any sum or sums id' money into the Bank of England as aforesaid. :?„ r( .| iasi , ,,| an y M1( .i, messuages, lands, tenements, hereditaments, and premises, or as a compensation for losses or damages as herein men- tioned, to the proprietor or proprietors of such messuages, lands, tene- ments, hereditaments, and premises, or to such other person or persons. Souses and buildings, Ac. bo be i a ken \\ ithout consent. Si'in is Arts Am mint, ,//. 301 bodies politic or corporate or collegiate, as shall be interested therein or entitled to receive such i ley or compensation respectively within thirty days tiixt after the same shall bo so agreed for or assessed, or apon paymenl of such sum or sums of money, within the s;ii«l thirty days, into the Bank of England, in manner herein directed ami required, for the use of t ho persons out it led thereto, it shall he lawful for t he sail t Commissioners, and their agents, servants and workmen, to enter upon such mi a Ij i laud-, tenements, hereditaments and premises respectively, and thenceforth such messuages, lands, tenements, hereditaments and premises, togel her with the yearly profits 1 her. 'of. and all the estate, USB, trusl and interest of any person, bodies politic, corporate or collegiate, therein, shall become and be vested in the said Commissioners for ever ; and such payment or tender shall not only bar all right, title, claim, interesl and demand of the person, bodies politic, corporate or collegiate, to whom the same shall or ought to have been made, hut also shall extend to and be deemed and construed to bar the dower of the wife of every such person, and all estates tail, and all other estates in reversion and remainder of his or their issue, and of every other person, bodies politic, corporate or collegiate whomsoever therein. 39. And he it further enacted, that it shall and may be lawful for Enabling Com- Commissioners of Sewers, or any six of them, in whom any lands and ""i^^'iT^,'.' hereditaments shall be vested by virtue of this Act, to sell and dispose of not wanted, the same or any part thereof, either together or in parcels, as they shall find most convenient and advantageous, to such person as shall be willing to contract for' and purchase the same; and the money to arise ami In- produced by the sale or sales which may be made by the said Commissioners of Sewers of any land or hereditaments as aforesaid shall be applied to the purposes of making and maintaining sewers works in the limits, valley, level or district in which such land or hereditaments so sold as aforesaid shall lie or be, but the purchaser thereof shall not be answerable or accountable for any misapplication or nonapplication of such money; provided always, that the said Commissioners of Sewers, before they shall sell and dispose of any such lands or hereditaments, shall first First offer to be offer to sell the same to the owner of the adjoining land or -round j and an BJ y en*P owners J ° of adjoining affidavit made and sworn before a .Master or Master Extraordinary in the ground. High Court of Chancery, or before one of His Majesty's justices of the peace for the county, riding, or division in which such land and heredita- ments shall lie, by some person not interested in the premises, stating that such offer was made by or on behalf of the said Commissioners, .and that such offer was not then and thereupon agreed to or was refused by the person to whom the name was so offered, shall in all courts whatever be sufficient evidence and proof that such offer was made, ami was not agreed to or was refused by the person to whom Buch offer was made (as the case may lie) ; and in case such person shall be desirous of purchasing the same, and he ami the said Commissioners shall differ ami not agree with respect to the price thereof, in such case the price thereof shall be ascertained by a jury in manner hereinbefore directed with respect to the disputed value of premises to lie purchased by Commissioners lido ■3 & 4 Will. IV. c. 22. Form of Con- ■ from Commj Power to borrow and take up money :it interest for making and maintaining works. of Sewers in pursuance of this Act ; and the expense of hearing and determining such difference shall be borne and paid in like manner as hereinbefore directed with respect to purchases made by the said Commis- sioners of Sewers, mutatis mutandis. 40. And be it further enacted, that all such conveyances of any lands, tenements or hereditaments to be sold and disposed of by the said Com- missioners of Sewers shall he expressed in the following or some similar form of words, as the circumstances of the case may require: — "We, six of the Commissioners of Sewers acting in and for several limits [here describe the limits as set forth in the Com/mission of Sewers'], in consideration of the sum of to us paid by of do hereby granl and release to the said all [describing the 'premises to be conveyed"], and all right, title and interest of the Commissioners of Sewers in and to the same and every part thereof, to hold vtnto the said his heirs, executors, administrators and assigns for ever. In witness whereof we have hereto set our hands and seals this day of in the year of our Lord 41. And be it further enacted, that it shall and may be lawful for Courts of Sewers, from time to time as occasion shall require, to borrow and take up at interest any sum or sums of money for the purchase of messuages, lands, tenements or hereditaments, or for defraying the costs, charges and expenses of any work or works required to be done within the respective limits of their Commission, for making, repairing and main- taining any sea-bank, wall or other defence or defences against any violent, ei'uption or encroachment or apprehended encroachment of the sea or rivers, or for the making and maintaining any new cut, or for the more effectual and better draining and carrying off the floods and superfluous fresh waters, or for the building, constructing, repairing, amending, renewing and maintaining any flood-gates, sluices, bridges, dams, or other necessary works, or for any other construction, work, matter or thing which the said court shall judge necessary or expedient for the more effectual defence, security and improvement of the lands, grounds, tene- ments and hereditaments within the jurisdiction of such Court of Sewers ; and the repayment of such sum and sums of money, with interest, shall, and may from time to time, be secured to the party lending the same upon or by virtue of a decree or ordinance under the hands and seals of the Commissioners, or any six of them (which decree and ordinance they are hereby authorised to make), charging the lands, tenements and here- ditaments receiving benefit or avoiding damage from the several works, .and t he owners or occupiers, or owners and occupiers for the time being thereof, with the payment of such sum and sums of money, with interest, according to the proportions and in the manner returned in and by acy presentment touching or concerning the costs and charges of such last-mentioned works, Sewers Arts Amendment. •><)'■> or the lands, grounds, tenements and hereditaments receiving benefil or avoiding damage thereby; provided always nevertheless, thai no such money shall be borrowed or taken op at interest as aforesaid without the consent in writing certified to the said Commissioners or any six of them, of the owners and occupiers respectively, or their respective husbands, guardians, trustees, or feoffees, committees, executors, or administrators, of three-fourth parts at the least, in value of I he lands and hereditaments lying -within the valley, level, or district proposed to be oharged with the repayment thereof : Provided also, that do person being the owner for the time being of any lands, tenements, or hereditaments shall be chargeable or liable, in respect of such lands, tenements, or hereditaments, for or towards any principal money borrowed Or taken up as aforesaid, with or CO the payment of any greater sum of money than one-fifth part of the value of such lands, tenements, or heredita- ments at the time of borrowing or taking up the same: Provided also, thai it shall he provided, expressed, and declared in ami b\ the said decree and ordinance, that the sum or sums of money so borrowed and taken up thereon shall he repaid within a time to be named in such decree and ordinance, not being for a longer period than fourteen years from the making thereof, by equal annual or shorter instalment:?, together with interest on t he sum or sums so borrowed or taken up, or on such part thereof as shall from time to time remain due and unpaid; and the said last-mentioned decree and ordinance shall be and remain in full force and effect until such -am or sums of money, and all interest thereon, shall have been fully paid and satisfied ; anything in the said recited Acts or litis Act contained, or any custom or usage, to the contrary notwithstanding. 42. And for facilitating the raising, securing, and paying oft' from time Courts of to time, of the moneys which it may he necessary so to raise and borrow as |^™^aitiea aforesaid, be it further enacted, that it shall and maybe lawful for any topersona .,...,» „ ' advancing Court of Sewers from time to time to grant securities, m the torm or a cor- money. tificate, under the hands and seals of six of the said Commissioners, to each person who shall so advance any sum of money as aforesaid, Betting forth the amount of the sum borrowed, the rate of interest payable for the same, the periods at which the said principal money shall be decreed to be paid oft' by instalments, and a general description of the particular lands, or, if by assessment, the district, limit, or level in which the lands are situate, which are to be charged with the repayment thereof; and that every such security or certificate shall be made in the following words, or by any other words to the same purport and effect : — "Byvirtue of an Act passed in the third year of the reign of HisPormof Majesty Bang William the Fourth, intituled here insert the title of this SW ' U1 '". V - Act |, We, the undersigned, being six of the Commissioners [here insert the general description of tin- Commission under which thru ,/," , in considera- tion of the sum of of lawful money of Great Britain to [here insert the name of the receiver of the district] leni and paid by do hereby certify that [here describe the particular lands, or, if by assessment, the valh r limit in which the lands are 30-1 :; & 4 Will. IV. c. 22. Securities may be transferred. Form oi transfer. Transfers to be produced to clerk tu Commissioners, and to lie registered by him. Courts (if Sewers may lie held inn nt' the limits nt' the commission. situate, which are to be charged], arc become charged with the repayment of the said stun, in instalments of one pari on the ,l : , v f in every vein-, together with interest on sucli pari of the said principal money as shall remain unpaid from time to time, at and after the rate of ponnds per centum per annum, until the whole thereof shall be repaid. ; which sum so lent and. advanced by the said is part of a capital sum of which at a Courl of Sewers holden at on the day of last was decreed and ordered to be taken up and borrowed for the purpose of here briefly state the general cause or object of borrowing the money \. In witness whereof we have hereunto set our hands and seals, the day of 43. And be it further enacted, that every person, body politic, cor- porate, collegiate, aggregate, or sole, who shall be entitled to the money thereby secured, and his, her, or their executors, administrators and successors, may from time to time, personally or by attorney thereunto lawfully authorised, assign or transfer his or their right, title, interest, or lienefit to the said principal and interest money thereby secured, to any person whatsoever, by endorsing on the back of such security, in the presence of one credible witness, who shall subscribe his name thereto, the following words, or words to the like effect : — " I [or We], [A. B. of, &c], in consideration of the sum of to me this day paid by [C. D. of, &c], do hereby transfer the within certificate of charge, with all my right and title to the principal money thereby secured and now remaining due thereon, and to all the interest money now due or hereafter to become due, unto [his or their] executors, administrators, succes- sors, and assigns [as the case may be]. Given under my hand and seal, this day of " Witness which transfer shall be produced and notified to the clerk for the time being of the Baid Commissioners, before the party holding the same transfer shall be entitled to receive any principal or interest due or owing as afore- said ; and every such clerk shall make tin entry amongst the records of the said Commissioners of the particulars of every such transfer, and endorse a minute of such entry upon the back of every such transfer, signed by such clerk, and for which entry and minute he shall be entitled to a fee of five shillings, and no more. 44. [And whereas it has been found in some instances difficult or incon- venient to hold Courts of Sewers within the limits or districts of the Com- mission under or by virtue whereof such courts have been held, by reason that no house or other sufficient building could be procured within such limits or « | i - 1 nets : Be it therefore further enact ed, that it shall and. may be lawful for Commissioners acting under any Commission of Sewers to hold Courts of Sewers at any place not being at a greater distance than five miles from the limits or districts of such Commission.] (a) («) This section is repealed by Stat, Law Revision Act, 18C3. Seivers Acts Amendment. 305 to. And be it Farther enacted, that all laws, acts, decrees, oo ms All acta and ordinances heretofore made, done, decreed and ordained at or by any Conrl of Sewers holden without the limits or district of the Comn onder or by virtue whereof such conrl baa been holden, but within five butwithh miles of bhe limits or district of such Commission, shall be and they art hereby declared to be as valid and legal, and shall henceforth be and remain in as fall force and virtue, as if the same laws, acts, -. constitutions and ordinances had been made, done, decreed and ordained at a Court of Sewers holden within the limits or district of the Commission under or by virtue whereof such court was holden. any statute, law, '. or custom to the contrary notwithstanding. 46. And whereas in many eases the burden of supporting, repairing Several defaults and maintaining a common sea-wall, bank, sewer or other work may be ^onemclent? divided among divers persons, each of whom may be liable to the repair of a certain portion thereof: and in order to avoid the necessity of presenting each such person separately in respect of the non-repair of such common sea-wall, bank, sewer, or other work: licit further enacted, that it shall he lawful for any sewers jury, bailiff, surveyor, ezpenditor, or other person to present the whole of such sea-wall, bank, sewer, or other work respec- tively, or such part thereof respectively as shall at anytime be out of repair, <>r require cleansing, and to allege in such presentment what persons or bodies politic or corporate are liable to the repair thereof, and also to specify what part or portion of such sea-wall, hank, sewer, or other works each such person, body politic or corporate, is bound or liable to repair, without making a separate and distinct presentment against each such person or body politic or corporate ; and upon twenty-eight days' notice of such presentment to be left with or at the last or usual place of abode or office of such person, body politic or corporate, each such person. body politic or corporate, shall be at liberty to trtiver.se the allegation con- tained in such presentment as to his liability to the repair of such part of such sea-wall, bank, sewer, or other work as in such presentment is alleged against him; and trial of such traverse shall he thereupon bad as if such presentment had been solely .and exclusively made against such person. body politic or corporate, so traversing the same as aforesaid. •17. And be it further enacted, that the property of and in all lands. Property in tenements, hereditaments, buildings, erections, works, and other thines • ands,1,n V , ' ° ' • mis, poods, So., which shall have been or shall hereafter be purchased, obtained, erected, vested in Corn- constructed, and made by or by the order of or which are Or shall be within m or under the view, oognizance, or management of any Commissionei Sewers, with the several conveniences and appurtenances thereunto respectively belonging, and also all and singular the goods, tools, utensils, materials, and things whatsoever had and to be had, bought, procured, or provided by or by the order of or which are or shall be within or under the view, cognizance, or management of suoh Commissioners, shall be and the same are hereby rested in the Commissioners of Sewers, within or under whose view, cognizance, or management such lands, tenements, here- ditaments, buildings, erections, works, goods, tools, utensils, materials, and 306 3 & 4 IF///. IV. c. 22. things shall respeotively.be, who are hereby empowered to bring or cause o be broughi any action or actions, or to prefer or order the preferring of any bill or bills of indictment, againsl any person who shall dig up, break or pull down, damage, destroy, injure, spoil, steal, take or carry away or wilfully and wrongfully buy or receive, any such binds, tenements, here- ditaments, buildings, erections, works, goods, tools, utensils, materials and things whatsoever as aforesaid, or any part thereof; and in every such action and indictmenl the said lands, tenements, hereditaments, buildings, erections, works, goods, tools, utensils, materials and things shall be laid or described to be the property of the said Commissioners, without stating or specifying the name or names of till or any of such Commissioners. JSSSntwhen 48. And be it further enacted, that every clerk, treasurer, collector, required. receiver, and other officer appointed and to be appointed by any Court of Sewers shall, as often as required by such court, render and give to the stud court, or to such person as it shall for that purpose appoint, a true, exact and perfect account in writing under their respective hands, and produce and deliver unto the said court, or to such person as aforesaid, proper vouchers of and for all moneys which they shall respectively before the time of rendering such accounts have received, paid and disbursed for or on account or by reason of their respective offices ; and in caso any money so received by any such officer shall remain in his hands the same shall be paid by him to such person as the said court shall authorise and empower to receive the same; and if any such officer shall refuse or wilfully neglect to render and give such account, or to produce and deliver up such vouchers, or shall for the space of fourteen days after being thereunto required by the said court refuse or neglect to render, give, pro- duce, and deliver up to them, or to such person as they shall direct or appoint, such true and perfect account, and all or any such vouchers as aforesaid, and all or any books, papers, writings, matters, and things in his hands, custody or power, it shall and may be lawful for the said court, in a summary way, to cause such money as shall appear to be due and unpaid from such officer to be levied by distress and sale of the goods and chattels of such officer, rendering to such officer the overplus (if any) on demand, after payment of the money remaining due, and deducting the charges and expenses of making such distress and sale; and if sufficient distress cannot, be found, or if any such officer shall refuse or wilfully neglect to render such account, or to deliver up all or any vouchers, books, papers, writings, matters, or things in his custody or power relating to the execution of his office, the said court shall or may commit him to any house of correction or common gaol of the county, city, or liberty in which such Court of Sewers shall have jurisdiction, there to remain, without bail or mainprise, until he shall have made and given a true and perfect account, and shall have delivered up the vouchors relating thereto, and shall have paid the money (if any) remaining in his hands as aforesaid, according to the directions of the said court, or shall have compounded with the said court for such money, and paid such composition according to their direction (which composition the said court is hereby empowered to make and receive) , Sewer* Ad* Anirniliiirut. 307 or until lie shall have delivered up all such hooks, paper-, ami writ matt its ami things as aforesaid, or have given satisfaction to the aid courl concerning the same ; but n<> such officer who shall be committed on ace of his nut having sufficient goods and chattels as aforesaid shall bo detained in prison by virtue of this Act I'm- any longer time than six calendar niont lis. 49. Ami lie it further enacted, that if any officer or servant of any Removing Courl of Sewers who shall he by such court discharged from his offic shall bo in possession of any houses, buildings, lands, flood-gates, sluice- iporty dams, works, matei ials, tools, or implements i o belonging to or vested in - any such Commissioners of Sewers as aforesaid, and shall refuse to deliver up the possession thereof within two days after notice of his being discharged and of his being required to deliver up the same shall be given to him, or left at his last or most usual place of abode, or if the wife, widow, family, or representatives of any such officer or servant who shall happen to die, shall, after like notice given to her, them, any or either of them, refuse to deliver possession of the same within the like term, after she, they, or either of them shall be required so to do, then and in either of the said cases it shall and may be lawful for any such Court of Sewers for the county, limits, or district wherein the same property, matter, or thing refused to be delivered up may be, by warrant ander the hands and seals of six Commissioners of Sowers for the county, limits, or district, to order a constable or other peace officer, with such assistance as shall be deemed necessary, to enter any such houses, buildings, lands, flood-gates, sluices, dams, or other works, so refused to be delivered up in the daytime, and to remove the persons who shall be found therein, together with their goods ont of such premises, and also to take possession of the same, and of all such other property, matters, .and things belonging to or vested in the said Commissioners of Sewers as shall be so refused to lie delivered up as aforesaid, and to put the said Commissioners, or their officer or servant, in possession thereof. 50. And Ik- it further enacted, that it shall be lawful for any Court <s 8 <£■ 4 117//. 7T. c. 22. Treasurer and 51. And be it Further enacted, thai it shall uol be lawful for any clerk nol i o be ,.-./. oouri oi Sewer (sic) to continue or appoint the person who hath heen or who may he appointed their clerk in the execution of anj Commission of Sewers, or tbe partner of any such clerk, or the clerk or other person in the service or employ of any such clerk, or the clerk or oilier person in the service or employ of the partner of such clerk, the treasurer for the purposes of the said recited Acts or of this Act, or to continue or appoini any person who hath been or who may be appointed treasurer, or the partner of any such treasurer, or the clerk or other person in the service or employ of any such treasurer, or the clerk or other person in the service or employ of the partner of such treasurer, t he clerk of the said Commissioners; and if any person shall continue in or accept both the offices of clerk and treasurer in the execution of any Commission of Sewers, or if any person being the partner of anj such clerk, or the clerk or other person in the .service or employ of any such clerk, or of his partner, shall continue in or accept the office of treasurer, or shall act as deputy of such treasurer, or shall in any manner officiate for such treasurer, or being the partner of any such treasurer, or the clerk or other person in the service or employ of any such treasurer or of his partner, shall continue in or accept the office of clerk in the execution of any Commission of Sewers, or shall act as deputy of such clerk, or shall in any manner officiate for such clerk, or if .any such treasurer shall hold any place of profit or trust under such Court of Sewers other than that of treasurer, every such person so offending shall for every such offence forfeit and pay the sum of one hundred pounds to any person who shall sue for the same, to be recovered, together with full costs of suit, in any of His .Majesty's Courts of Record at Westminster, by action of debt, or on the case, or by bill, suit, or information, wherein no essoign, protection, or wager of law nor more than one imparlance, shall be allowed. Cen stul ilcs to "'2. And for the better carrying into execution the (lowers ami authorities obey orders oi f t ] 1( , sa ;j Commissioners of Sewers, be it further enacted, that till and i ommissioncrs. . every clued and pet,t\ r constables, headboroughs and tithmgmen, or by whatsoever other name or names such chief or petty constables may be called or known, and other peace officers, of or within the respective hundreds, parishes, townships, liberties, districts, or places within the jurisdiction of the said respective courts, shall and they are hereby authorised and required to obey and execute all and every the orders, wan-ants, precepts, or other process which may be to them directed by the said Commissioners; which said Commissioners respectively are hereby authorised t o direct such their orders, warrants, precepts, or other process to such chief or petty constables, headboroughs, tithingmen, and other peace officers accordingly. Fines, ,vc, may •":{. And be it further enacted, that no line, amoivment , penalty, or i ' 1 ' n| ' : ' forfeiture, which from and after the passing of this Act shall be set. or ioners imposed by any Commissioners of Sewers upon any person, body politic or of Sewers. ,. , . . . . . , . . » corporate, lor not cleansing, scouring, repairing, or maintaining, or for Sewers Acts Amend/merit. 309 obstructing or injuring any of the walls, ditches, banks, gutters, se i gotes, bridges, and si reams, or for any other cause, matter or t bing wit bin the jurisdiction of the said Commissioners respectively, shall bereafter be returned or estreated into the Court of Exchequer ; but thai the same fines, amercements, penalties and forfeitures, and all penalties and forfeitures imposed by this Act, except as herein otherwise provided, shall and may be demanded and received by the treasurer, clerk, expenditor, or other person appointed by the Said Commissioners to receive the same, audit' not paid, upon demand, shall and may he levied by distress and sale of the goods and chattels of the person, body politic or corporate, upon whom such lines, amercements, penalt ies or forfeitures shall or may be so set or imposed, by warrant under the hands and seals of the said Commissioners, or any six or more of them, togetherwith the costs and charges of such distress and sale, rendering the overplus (if any) to the party or parties entitled thereto; which warrant the said Commissioners are hereby authorised to issue ; and the said tines, amercements, penalties, and forfeitures, when so received or levied, shall and may be applied by the said Commissioners to such and the same uses and purposes as the moneys raised, levied, or set apart by the said Commissioners for defraying and reimbursing the general expenses nl' executing the Commission of .Sewers under which they shall or may act or may he applicable. 54. And he it further enacted, that the warrant authorising the levying Pormol of any such tine, amercement, penalty or forfeiture payable by virtue of "/"'.'j'^'. 1 ,' ,j n ','. this Act may be in the words or to the effect following : — &c. " To , our bailiff of sewers, and to and , our collectors, and to each and every of them, and to all constables and other peace officers. " WHEREAS at the Court [or Session] of Sewers holden for the limits [here state the name of the Commission] on the day of last, A. B., of , in the county of , carpenter, was fined [amerced or other- wise, as the case may be] in the sum of which sum it hath this day been proved to us, the undersigned, being six or more of the Justices and Commissioners of Sewers for the aforesaid limits, by the oath of , duly appointed to receive i be same fine [amercement, penalty or forfeiture, as the case maybe] that the said hath neglected or omitted to pay when demanded of him. These are therefore to authorise and command you, any or either of you, to levy the said sum of by distress and sale of the goods and chattels of the said , together with the costs and charges of such distress and sale, rendering the overplus, if any, to the said . (liven under our hands and seals the day of in the year of Our Lord one thousand eight hundred and ."' 55. And be ii further enacted, that in all and singular the orders. Commissioners decrees and other proceedings hereafter to be made touching or concerning may " ecre . e and i <- o »e assess costs. BIO 3 <£ 4 Will. IV. c. 22. any matter or thing within the jurisdiction of any <'<>nrt of Sewers, it shall and may be lawful to and for any such Courl of Sowers i" order and decree thai the costs, charges, and expenses of and incid.Mii a 1 to the making and putting in fo irder or decree, orders or decrees, shall be paid and borne by the person, body politic or corporate, upon or against whom, ib of whose default or for whose benefit such order or decree, orders or decrees, shall respectively be made, which costs, chargi ttses shall and may be ascrtained and settled by or by the authority of any such Court of Sewers ; and w hen any suet costs, charges and expenses shall be ordered and decreed to be paid as aforesaid, and such order or decree, orders or decrees, shall not he previously altered, reversed, or ((Hashed by or at any subsequent Court of Sewers, or by any other court rnrts, n[ removal of the same by certiorari or otherwise, the same -. charges and expenses shall and may. al any time after the Court of Sewers immediately following the granting or passing of such orders or d crees respectively, such court being at the distance of twenty-one days at the least from the- service of such orders or decrees respectively, lie levied and raised, together with the costs and charges of raising and levying the same, by distress and sale of the goods and chattel- of the person, body politic or corporate, by -whom the same shall or may respectively be ordered or decreed to be paid as aforesaid by the bailiff, expenditor, surveyor or other known officers of the said Commissioners of Sewers for the time being, or by any constable or peace officer or any oiler person to be named in and by such orders or decrees respectively, wit hout any furl aer A.nd in default order or decree of the said Court of Sewers: Provided always, that if no rais^th ach distress or distresses as aforesaid can be found, the same costs, thelands charges and expenses, together with the costs and charges of raising and defaulters. levying the same, shall and may be raised and levied apon and out of tie- lands, tenements and bereditaments within tin' limits of the Commission under and by virtue of which the same orders and decrees shall respec be made of, or belonging to the person, body politic or corporate, upon or against whom such orders and decrees shall respectively he made, in lcc and the same manner as tin- same would have been leviable if the same lands, tenements or hereditaments had been lawfully assessed in the amount or respective amounts of the same costs, charges and expenses to or for a lawful scot, rate or ent for the purposes of the same Com- mission, and the same lands, tenements and hereditaments shall be subject to all such and the same order.-, and decrees as the same would bave been Subject to, and such orders and decrees shall be of the same force and authority as if the same costs, charges and expenses were a lawful scot, rate or assessment as aforesaid and unpaid. ;i ''>" 5G. Provided also, and he it further enacted, that all and every sum and sum-, of money which shall or ma] be raised or levied by or for the nil expenses of any officer of Bewers as aforesaid shall he paid into i In- hands of the treasurer or expenditor of the said Commissioners acting for the district in or for which th -ders or decrees shall respectively be made, and shall he paid, applied and disposed of, so far as the same Seivers Acts Amendment. 311 will extend, in defraying and reimbursing the <•<> I . charges ami expenses which shall have been so incurred as aforesaid, subject to such order and disposition of the Baid Commissioners as the] or anj six or more of them shall deem to lie just, ami reasonable. 57. Ami be ii further enacted, that Commissioners of Sowers may sue ('oimnissionexa , , ..... . : i • of Sewers may and be sued at law, or m equity tor or concerning any matter or thing sll( . . U1(1 i, whatever, or Tor or relating to the lands and hereditaments or other inth ,_-,.,. ,. ., their clerk, property vested or f<> become so vested in them as aforesaid, or to any river, stream, sewer, wall, hank, or other work or matter within or under the view, cognizance, management or jurisdiction of such Commissioners, in the name of any one Commissioner, or in the name of their clerk for tin' time being; and in any action or actions of ejectment which shall or may he brought or prosecuted by the said Commissioners for recovering the possession of such houses, buildings, or other property so vested in them as aforesaid, it shall he sufficient to lay the demise in such action or actions in the names of six Commissioners, or in the name of such clerk ; and no action or suit to he brought or commenced by or against the said Commissioners or the said clerk in manner aforesaid shall abate or be dis- continued by the death, resignation or removal of such Commissioners or of such clerk, or by the expiration of any Commission of Sewers or other authority under which the said Commissioners or clerk may act as afore- said, provided that ho execution shall issue or be had in any such action or suit against such Commissioners or clerk until six months shall have elapsed after final judgment in such action or suit shall have been obtained. 58. Provided always, and be it further enacted, that every such clerk in Clerks and whose name any such action or suit shall he brought, commenced or sued, to'iJe'"^ and every such Commissioner of Sewers whose name shall be used in any reimbursed. hill, information, prosecution or indictment in pursuance of this Act, and that every such Commissioner of Sewers in whose name the said Commis- sioners shall so sue or be sued as aforesaid, shall he fully reimbursed and paid all such costs, charges, damages and expenses as by the event or in Consequence of any such action, suit, bill, information, indictment, or prosecution he shall pay, sustain, or be put unto or become chargeable with or liable to by reason of his being plaintiff or defendant as aforesaid, or his name being used as aforesaid, by and out of the moneys that, shall be in or come to the hands of the said clerk or of the treasurer or expenditor for the time being, as such clerk, treasurer or expenditor, or by and out of the moneys to arise and be colleoted by a scot, rate, or tax to be granted, raised, and levied, under the authority and direction of tho said Commis- sioners of Sewers having authority to raise and levy such scot, rate or tax, or such of l hem as shall be authorised to act on behalf of themselves and the others, as the case ma\ be, on the Bootable, rateable, or taxable lands, tenements and hereditaments, the district for which be or they so acts or act, or hath or have acted as clerk as aforesaid, or for which he is so authorised to act as aforesaid, and which said scot, rate or tax may be levied and raised under and by virtue of this Act for the purposes aforesaid. :',12 :\ A- I 117//. IV. <■. 22. plaint ■ ' be a w ' Rule Eor the Lnterpi i of certain words and terms 1 1 Act. ', c( QOt tO ce any local Act. of the C I.. .mi' a rights ily of 59. Provided always, and be il Further enacted, thai the clerk being the plaintiff, proseoutor or defendant in any such actions, suits, proceedings prosecutions or indictments as aforesaid, shall not affect the competencj oJ such clerk to be a writness in any such actions, suits prosecutions and indictments in the same manner as he might bave been if his name hud ii, ,i been made ose of as bhe plaintiff, prosecutor or defendant in any such actions, suits, proceedings, prosecutions or indict ments. 60. And be ii farther enacted, thai the words " Court" and "Court of Sewers" in this Act shall respectively be deemed to mean every court, as, assemblage, or meeting of any six or more Commissioners of Sewers (three whereof being of the quorum) named in any Commission of Sewers, and acting in the execution thereof; and wherever in this Act any word or words is or are used or employed importing the singular number or t lie masculine gender only, such word or words shall extend to and shall be construed to include several persons as well as one person, and females as well as males, and a body or bodies politic, corporate or collegiate, corporal ion or corporations aggregate or sole, as well as individuals, unless it be otherwise specially directed or provided for. 61. And licit further enacted, that nothing in this Act contained shall extend or be construed to extend to affect, alter, abridge, or interfere with any local or private Act of Parliament for Sewers concerning any county, city, town, district, lands, or limits, or any Commission of Sewers in the County of Middlesex, within the distance of ten miles from the Royal Exchange in the City of London, except such parts of the said county as may lie within any Commission of Sewers of the eomit\ of Essex; or to affect, alter, abridge, or interfere with any navigable river, c tl, port, or harbour under the management or power of any Com- missioners, trustees or proprietors by virtue of any local or private Act of Parliament; or to affect, alter, abridge or interfere with anj charter, law, • or custom in or concerning Etomnej Marsh in Kent, or the Great Level of the Kens called Bedford Level. 62. And be it further enacted, I hat nothing in this Act contained shall extend oi be construed to extend to repeal or in anywise affect, alter, abridge, or interfere with the Commissioners of Sewers of the Citj of I. Minion and liberties thereof, or the rights, powers or privileges of the Mayor and commonalty and citizens of the Citj of London, in relation to t he sewers, drains, vaults and bridges within the said city or liberties, or any Act or Acts of Parliament heretofore made for making, amending, defending, widening, altering or cleansing the said sewers, drains, vaults and bridges within the said city and liberties. Scioers Acts Amendment. 313 4 & 5 VIC. c. 45. .l/i Act to amend am Act passed in the third and fourth years of the reign of His late Majesty King WilUam the TPov/rth, intituled, an Act to amend the Laws relating to Sewers. [21s< June, 1841. Whereas as Act was passed is the twenty-third year of the reigs of His 23 n. VIII. c. 5 Majesty King Henry the Eighth, concersisg Commissioss of Sewers, to be directed isto all parts within the then realm of England, including the Principality of Wales, is the manner and according to the form, tenor, and effect in the said Act set forth, and which said Aet was made perpetual by an Act passed in the third and fourth years of the reign of His Majesty Kins Edward the Sixth, intituled, an Act for the continuance of the 3 & Ed. VI. c. St at ut e of Sewers, and was amended and altered by an Act, passed in ' the thirteenth year of the reign of Her Majesty Queen Elizabeth, intituled, an Act for the Commission of Sewers, and was also amended by 13 Kliz. c. 9. an Act passed in the third and fourth years of His late Majesty King William the Fourth, intituled, an Act to amend the laws relating to 3 & 4 W. IV. c. sewers: And whereas by the last-recited Act, certain payments and recompenses to clerks and other persons employed by the court, and also to witnesses, and also certain costs, charges, and expenses to be incurred in surveying, measuring, planning, and valuing any lands or hereditaments, or otherwise preparatory to, or in, or about the making, collecting, and expending certain taxes, rates, and scots to be raised under or by virtue of the said recited Acts, or any or either of them, or the hearing of objections to such taxes, rates, or scots, or in or about the carrying on of any litigation or coi..r'oversy arising out of the duties imposed on the Courts of Sewers by virtue of the said recited Acts, and For the payment of all other necessary allowances, charges, and expenses of putting the said several recited Acts into execution, and the contingent expenses of working the Commission of Sewers, are authorised and directed to be paid and allowed out of the said taxes, rates, ami scots, but the powers in some cases are not found sufficient to make, assess, or levy any taxes, rates, or scots which could or might he applied to the several purposes aforesaid or any of them; and it is expedient that sufficient power should be given to the Courts of Sewers for that purpose; may it therefore please your Majesty that it may he enacted ; and lie it enacted by the Queen's mosl excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in this present Parliament assembled, and by the authority of Courts of the same, that it shall be lawful for any Court of Sewers, fur all or any of Sewers em- the purposes aforesaid, but for no other purpose whatsoever, from time to raisemoneyby time, as often as occasion shall require, to tax in the gross, in each parish, lax - township, or place, such lands and hereditaments which heretofore have been or hereafter shall be within, or partly within, the jurisdiction of such court; but so that such lands and heredit anient s shall cont ribiit e 1 heret o in proportion to the benefit and advantage received, or capable to be received :;l I i & 5 Vic. c. 45. from ill" said court, as compared with the lands and hereditaments of the other parishes, townships, or places within such jurisdiction, which said tax shall be denominated the General Sewers Tax, and shall be recovered and recoverable by distress and sale iii like manner and by all such ways and means as any fine Or amercement imposed Oil a parish or township by a Court of Sewers is now by law recoverable; but no distress for such General Sewers Tax shall be replevied by any sheriff, under-sheriff, judge or court of law or equity whatsoever. Courtsof 2. And be it enacted, that it may and shall he lawful for any Court of t h m app 0r - Sewers to direct and authorise anj surveyor or other person to apportion tionmentand such general tax among the occupiers of the lands and hereditaments in t£etax? n0i each such parish, township, or place -which heretofore have been or here- after shall be within, or partly within, the jurisdiction of such Court of Sewers, in such proportions and upon such individuals as of right ought to pay the same; and such tax, when so apportioned, shall he collected by some person as shall he appointed by the court for that purpose, anil shall In by such person paid over to the treasurer of. or other officer appointed by the Commissioners of Sewers, at such time as the Court of Sewers shall direct; provided that every occupier upon whom such General Sowers Rate shall be apportioned shall have notice in writing of such apportionment en days at the least before the next Court of Sewers to be held within the limits in which the lands and hereditaments to he taxed shall be. General Sewers ;5 - And he it enacted, that in case no complaint shall he made against Tax and appor- such general or apportioned Sewers Tax at the Court of Sewers held next tinai'lTr'not' "" after the expiration of ton days after such notice of apportionment shall complained he made as aforesaid, such General Sewers Hate, and such apportionment, against at, the .,,,., , i ■ n i • i next- court. thereof, shall respectively he final and conclusive on all parties whom- soever; but in case of any complaint of inequality or non-liability to pay the said General Sewers bate, or such apportionment thereof respectively, the Commissioners shall at such court, or at, some adjournment thereof, or at some subsequent court, proceed to investigate the same, by the exami- nation of such witnesses as the parties interested therein shall produce, or by the examination of such other witnesses as to the said court shall seem right ; and the decision of such court as regards such General Sewers Rate and such apportionment thereof respectively shall be final : and such appor- ioned rate shall be recoverable by distress and sale of the effects of the persons respectively rated, hy warrant under the hands and seals of six of the Commissioners of Sewers, hut no distress for such apportioned rate shall be replevied hy any sheriff, under-sheriff, judge, or court of law or equity whatever; nevertheless the Court of Sewers shall he empowered to direct any feigned issue, appeal, or action at law, to try any dispute which may arise as to the inequality or non-liahility of any person to pay the said General Sewers Tax, or the said apportionment thereof, the person so objecting to the payment thereof having first given security to the said court for the payment of all costs and charges attendant i hereon. PowertO I. And whereas certain payments, allowances, and expenses authorised ,, " n " w; ": , " ( ; ' kt ' hv the said recited Act of his "late Majesty Eing William the Fourth may 11]) lIiOlH'\ Q l Sewers Arts Ann ailment. 315 have been and may be made and incurred b (fore any General Sew.]- Rate oan be recovered; be it therefore enacted, that it shall and may be lawf tl his id' Sewers from time to time to borrow and take up al interesl any sum or sums of money for the several purposes aforesaid, or any of them; and the repayment of such sum and sums of money, with inti shall from time i.. time be secured to the parties or party lending the same, their, his, or her executors, administrators, and assigns, upon or by virtue of a decree or ordinance under the hands and seals of the Commissi Of Sewers, ui- any six of them (which decree and ordinance the said COuri is hereby required to make), charging the General Sewers Rates, or any of them, to be raised under and by virtue of this Act, with the payment of such sum and sums of money, with interest: provided always, that it Provisioi ' , , -■ • 11 ,, ■ i , ( repayment. shall be provided, expressed, and declared m and by the said decree ana ordinance that t he sum or sums of money so borrowed and taken up as aforesaid shall be repaid within a time to be named in such decree or ordinance, not being a longer period than seven years from the making thereof, by equal annual or shorter instalments, together with the interest on the sum or sums so borrowed or taken up, or on such part thereof as shall from time to time remain due and unpaid; and the said lasi- mentioned decree or ordinance shall be and remain in full force and effect until such sum and sums of money, and all interest thereon, shall have been fully paid and satisfied; any thing in the said recited Acts or this Aet contained, or any custom or usage, to the contrary uotwithstanding. 5. And for facilitating the raising, securing and paying off from time Courts of to time of I 3 which i: may be □ 3Sary so to raise and borrow as ^^."li'C^uniirs aforesaid, be it enacted, that it shall and may 1);- lawful for any Conrl of topersons ad- Sewers from time to time to granl securities, in the form of a certificate, under the hands and seals of six of the Commissioners, to each p >rson who shall so a ban !6 any aum of m eiey as aforesaid, setting forth the am ctnt of the sum borrowed, tic pate of interesi payable f or the same, the periods at which the said principal money shall 1) • decreed to be paid oil' by instal- ments, and the particular General Sewers Rate which is to be charged with the repaymenl thereof; and thai every such security or certificate shall be made in the following words, or by any other words to the same purport and effect : — " By virtue of an Act passed in the year of the reign o\' Form of Her Majesty Queen Victoria, intituled [here iii^rf the title of this security. Act^\, we, the undersigned, being six of the Commissioners [here i n< tI the general description of the Commission under which they . in consideration of the sum of of lawful mone Greal Britain to [here insert the lent and paid by , do hereby certify, that the several General Sewers Rates to be made and levied within here insert ; f the i' a capital sum of which, at a Court of Sewers holden at on the day of last, was decreed and ordered to be taken up and borrowed. In witness w htereof we have hereunto set our hands and seals the day of ." Securities may 6. And be it enacted, that every person, body politic, corporate, be transferred, collegiate, aggregate, or sole, who shall he entitled to the money thereby secured, and his, her, or their executors, administrators, and successors, may from time to time, personally, or by attorney thereunto law Fully authorised, assign or transfer his, her, or their right, title, interest, or benefit to the said principal and interest money thereby secured to any person whatsoever, by endorsing ou the back of such security, in the presence of one credible witness, who shall subscribe his name thereto, the following words, or words to the like effect : Kerni ef "I [_<»• We] A. B., of r 'c, in consideration of the sum of tr;l " sleI '- to mc this day paid by C. D. of, ,V<\, do hereby transfer the within certificate of charge, with all my right and title to the principal money thereby secured, and now remaining due thereon, and to all the interest money now due or hereinafter to become due, unto [his, her, or their] executors, administrators, successors, and assigns [as the case may be]. Given under my hand and seal this day of Witness, Transfers to be Which transfer shall be produced and notified to the clerk for the time produced to the I,,.;,,,, f the said Commissioners, before the party holding the same transfer clerk to Com- . . . . mis8ioner8, and shall lie entitled to receive any principal or interest due or owing as afore- l>v l'i'iin" lotL1L ' 1 ,s:l ''' ; ; " ,( L every such clerk shall make tin entry amongst the records of the said Commissioners of the particulars of every such transfer, and endorse a minute of such entry upon the back of every such transfer, signed by such clerk, and for which entry and minute he shall he entitled to a fee of live shillings and no more. C 0ur t so f "• And he it enacted, that it shall he lawful for any Court of Sewers, Sewers.may ]> v an( 3 0u fc () f the rates and scots raised and to be raised under or by jurymen. virtue of any Commission of Sewers, to decree, order, appoint, allow, and pay to any juryman summoned to attend and attending any Court of Sewers, such allowance and recompense for his expenses and loss of time as to such court shall seem just. Courtsof S. And be it enacted, t hat on all appeals from any rate de under Sewers may () au thoritv of anv Commissionof Sewers, it shall he lawful for I he court amend or quash ■ . rate on appeal, before which such appeal shall hi' made to amend such rate, either by inserting I herein or striking out therefrom the name of any person, or by altering the sum therein charged on any person, or in any other manner Sewers Acts Amend/merit. 317 whirl i the said courl shall think just, without quashing such rate : provided, nevertheless, thai if the courl shall be of opinion that the rate should be quashed, then the said courl may quash the same 9. Ami be ii enacted, thai no person rated or liable to be rated to any Rated p tax, rate or sent under or by virtue of any Commission of Sewers, or any tent ^^ Commissioner of Sewers, shall bo deemed an incompetent witness before any ('our! of Sewers] («)• 10. And be it enacted, that if any difference shall arise upon the choice n,,w chairman of a chairman at any court or meeting of Commissioners of Sewers, such 8naU De chosen. chairman shall be chosen by the majority Of Commissioners pri thereat; and in ease [ here shall be an equal number of votes upon such choice, then such one of the persons proposed whose name shall stand first in the Commission under which such court or meeting is bolden shall be the chairman thereof ; and the chairman of every such court or meeting, in till cases of an equal number of votes upon any question or matter (including his own vote), shall have a casting or decisive vote. 11. And be it enacted, that it shall be lawful for the Commissioners Commi- acting under any Commission of Sewers to hold courts and meetings of Soldmeetmefl Commissioners of Sewers at anyplace not being a greater distance than ten miles from any part of the limits or district within their jurisdiction under such Commision. 1.!. And be it enacted and declared, that in .all cases when it hath Regulating happened or may hereafter happen that a sufficient number of Commis- Commissioners sioners of Sewers to constitute a court or meeting shall nut have met or of Sewers. shall not meet on t he day appointed for holding any such court or meet bag, and in till cases where any such court or meeting shall not have been or shall not be duly adjourned by the majority of Commissioners present thereat, it shall be lawful for anyone or more of the Commissioners named in such Commission, by some writing under his or their hands, to appoint a court or meeting of such Commissioners to be hold-cm at such time and place as he or they may think fit, of which court or meeting ten clear days notice shall be given by advertisement inserted in some newspaper circu- tited in the county into which such Commission shall run, and when the same shall run into more than one county, then in some newspaper circu- lated in each of such counties, and that the majority of Commissioners present at ;my court or meeting (notwithstanding the whole number present be less than six) may adjourn and arc hereby authorised and empowered to adjourn the same respectively to any future day and to such place as to them may seem fit, and t bat the Commissioners present at any court or meeting so appointed as aforesaid, or at any such adjourned court or meeting as aforesaid (the whole number present not being less than six), Or the majority of them, shall and may exercise and perform till the powers, authorities and duties vested in such Commissioners under or by virtue of any Commission of Sewers. (.it 'Phis section is repealed by the Statute Law i: \ . A.ct, 1874 (No 2), inci >mpetency to give e\ idence i m tin' ground of interest having been generally abolished, 6 & 7"\ . e. 86; Hi & 17 Vie. e. s:i. 318 1 & 5 Vu 45. Saving powers of Courts of - under recited Act.-. Indemnities &c. Hi' 3 & i W. [V. c. 22, extern li this A' !. Tin - Art. not to prejudice a n j lo Ml An. Saving rights of the * 'ity of London. Guarding the powers of the Commissioners of Sewers for Wesl minster, &c. 13. And be it enacted, that nothing in this Act contained shall prevenl any Court <>f Sewers from executing all or any of the powers and inn- visions usually heretofore exercised under or by virtue of the said recited Acts, in- any or either of them, or the law of Sewers of "hi time accustomed. 14. Ami lie it enacted, that till indemnit ies. immunities and liabilities given to or imposed upon Commissioners of Sewers and other persons in and by the said recited Act passed in the third and fourth years of his said late Majesty King William the Fourth shall be deemed and construed to extend to all persons acting in the execution of this Act. L5. And be it enacted, that nothing in this Act contained Bhall extend or lie construed to extend to affect, alter, abridge or interfere with any local "!' private Act of Parliament fur sewers concerning any county, city, bown, district, lands or limit, or any Commission of Sewers in the county of .Middlesex, within the distance of ten miles from the Royal Exchange, in the City of London, except such parts of the said county as may lie within any Commission of Sewers for the county of Essex; or to affect, alter, abridge or interfere with any navigable river, canal, port or harbour under the management or power of any Commissioners, trustees or proprietors by virtue of any local or private Act of Parlia- ment ; or to affect, alter, abridge or interfere with any charter, law, usage or custom in or concerning Romncy Marsh in Kent, or the Croat Level of the Fens, called Bedford level, or any lands, banks, waters, water-courses, sluices, bridges, drains or works belonging to or under the jurisdiction, power or control of the Commissioners of the North Level and Portsand, in the counties of Cambridge, Northampton and Lincoln, or of the Commissioners of the Nene outfall, in the counties of Cambridge, Lincoln and Norfolk, or of their Committees respectively. 1G. [And be it enacted, that nothing in this Act contained shall extend or be construed to extend to repeal or in anywise affect, alter, abridge, or interfere with the Commissioners of Sewers of the City of London and liberties thereof, or the rights, powers, or privileges of the Mayor and Commonalty and citizens of the City of London, in relation to the sewers, drains, vaults and bridges within the said city or liberties, or any Act or Acts heretofore passed for making, amending, defending, widening, altering or cleansing the said sewers, drains, vaults and bridges within the said city and liberties (a)]. 17. [Provided always, and be it enacted, that nothing in this Act contained shall prejudice, diminish, .alter, limit, interfere with, take away, control or suspend, or be held or construed to prejudice, diminish, alter, limit, interfere with, take away, control or suspend tiny of tin.' rights, privileges, jurisdictions, powers and authorities vested in or belonging to the Commissioners of Sewers for the City and liberty of Westminster, and part of the county of Middlesex, but that all such rights, privileges, juris- («) Repealed by Stat. Law, Rev. Act, 1874 (No. 2). Lands Glauses Act, L845. 319 diet inns, powers :i n < I :i ui boril ies shall be as good, valid and effectual as if I his Act had Mm l ii passed (a). [ Is. I 'i< >\ i< li ■< i always, and be ii enacted, thai nothing in this Aci con- Bavins tained shall extend or be construed to extend to abridge, invalidate, li or diminish, alter or take away any of the rights, powers, privileges and tion. authorities vested in the governor, bailiffs, and commonalty of the Company of Conservators of the Greai Level of the Fens called Bedford Level, or in the governor, bailiffs and conservators of the Bedford Level Corporation, by virtue of an An passed in the fifteenth year of the reign of KingCharli i the Second, intituled, "An Act for Settling the Drainage of the Greal Level "\' the Fens called Bedford Levels, or by any other Act, statute or charter, law of sewers, or otherwise howsoever; bui that all rights, powers, and authorities which are uow vested in the said governor, bailiffs and commonalty, or in the said governor, bailiffs and conservators, and in every Or any of them, shall For ever hereafter remain, continue and bo in the governor, bailiffs and commonalty, and in the said governor, bailiffs and conservators, and every of them, as fully and amply to all intents and purposes as if this Act had not been passed. 8 VIC. c. 18. I let for consolidating vn one Aci certain provisions usually inserted in Acts authorising the talcing of lands for. undertakings of a public nature. [8th May, L845.] Whereas it is expedient to comprise in one general Act sundry pro- visions usually introduced into Acts of Parliameni relative to the acquisi- tion of lands required for undertakings or works of a public nature, and to the compensation to be made fur the same, and that as well for the purpose of avoiding the necessity of repeating such provisions in each of the several Acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves: May it therefore please your Majesty that it may be enacted; and be it enacted by the Queen's most excellent Majesty, by and with the advice of the Lords spiritual and tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, that this Act shall apply to every undertaking Act to apply to authorised by any Act which shall hereafter be passed, and which shall ?" nndertak- J J ings authorised authorise the purchase or taking of lands for srch undertaking, and this by Acts hi Aci shall be incorporated with snchActj and all clauses and provisions nSjfsed of this Act, save so far as they shall be expressly varied or exoepted bj any such Act, shall apply to the undertaking authorised thereby, bo far as the same shall be applicable to Bueh undertaking, and -hall, as well as the clauses and provisions of every other Act, which shall be incorporated with such Act, form pari of such Act, and be construed together therewith as forming one Act. (a) R ipea] d by Stat. Law. Rev. Act, L874 (No. 2). :)20 8 Vic. c. 18. Interpretations ill 1 Ins .\rl : " Special Act: " prescribed : " " iii ■ Works : " " Promol er oi the I rnder- t:ikim, r ." Interpretations in this and the Special Act : Number : Gender : " Lands : " 1 Lease •. " 'Month: " " Superior Courts : " "Oath:" ' ' County : " the Sheriff the Clerk of the Peace And with respeel to the construction of this Act and of Acts to be incorporated therewith, beil enacted as follows : l'. The expression "the special Act," used in this Act, shall be con- strued to mean any Act which shall hereafter bo passed which shall authorise the taking of lands for the undertaking to which the same relates, and with which this Act shall 1)0 so incorporated as aforesaid; and the word "prescribed" used in this Act in reference to any matter herein stated, shall be construed to refer to such matter as the same shall be prescribed or provided for in the special Act, and the sentence in which such word shall occur shall be construed as if, instead of the word " pre- scribed," the expression " prescribed for that purpose in the special Act " had been used; and the expression "the works" or " the undertaking" shall mean the works or undertaking, of whatever nature, which shall by the special Act be authorised to be executed; and the expression "the promoters of the undertaking" shall mean the parties, whether company, undertakers, Commissioners, trustees, corporations, or private persons, by the special Act empowered to execute such works or under- taking. 3. The following words and expressions, both in this and the special Act, shall have the several meanings hereby assigned to them, unless there be something either in the subject or context repugnant to such construc- tion ; that is to say, Words importing the singular number only shall include the plural number, and words importing the plural number only shall include the singular number : Words importing the masculine gender only shall include females : The word "lands" shall extend to messuages, lands, tenements and hereditaments of any tenure : The word " lease " shall include an agreement for a lease : The word " month" shall mean calendar month : The expression "superior Courts" shall mean Her Majesty's superior Courts of Record at Westminster or Dublin, as the case may require : The word " oath " shall include affirmation in the case of quakers, or other declaration lawfully substituted for an oath in the case of any other persons exempted by law from the necessity of taking an oath : The word " county " shall include any riding or other like division of a county, and shall also include county of a city or county of a town : The word "sheriff" shall include under sheriff, or other legally competent deputy ; and where any matter in relation to any lands is required to be done by any sheriff, or by any clerk of the peace, the expression "the sheriff," or the expression "the clerk of the peace," shall in such case be construed to mean Lands Clauses Act, 1845. ;!21 the sheriff: or bhe clerk of the peace of the county, city, borough, Liberty, cinque port, or place where such lands shall be situ and if bhe lands in question, being bhe property of one and the same party, be situate no! whollj in < county, city, borough, liberty, cinque port, or place, bhe same expression shall be con- strued bo mean bhe sheriff or clerk of bhe peace of any county, city, borough, liberty, cinque porl or place where any pari of such lands shall be situate. The word " justices " shall mean justices of the peace acting for "Justices " the county, city, liberty, cinque pen, or place where bhe matter requiring the cognizance of any such justice shall arise, and who shall no! be interested in the matter; and where such mailer shall arise in ivspec! of lands being the property of one and the same parly, situate not only in any one county, city, borough, liberty, cinque port or place, the same shall mean a justice acting for the county, city, borough, liberty, cinque port or place where any pari of such lands shall he situate, and who shall not lie interested in such matter; and where any matter shall he authorised or required to he done by two justices, i he e\ pression " t wo justices " shall he understood t o mean two " Two justices assembled and acting together : justices: Where under the provisions of this or the special Act or any Act "Owner:" incorporated therewith, anj uotice shall be required to be given to the owner of any lands, or where any Act shall he authorised or required to he done with the consent of any such owner, the word "owner" shall he understood to mean any person or corporation, who, under the provisions of this or the special Act, would he enabled to sell and convey lands to the promoters of the undertaking : The expression " the Bank " shall mean the Bank of England where "the Bank:" the same shall relate to moneys to be paid or deposited inrespect of lands situate in England, and shall mean the Bank of Ireland, where the same shall relate.! to moneys to he paid or deposited in respect of lands situate in Ireland. 1. And he it enacted that in citing this Act in other Acts of Parlia- Short Title of mem and in legal instruments, it shall he sufficient to use the expression ' "' " "The Lands Clauses Consolidation Act, 181-5." 5. And whereas it may he convenient in some cases to incorporate with Form in which Acts of Parliament hereafter to he passed some portion only of bhe ^tmftvh Bin" provisions of this Act : Be it. therefore enacted that, for the purpose of corporated with making any such incorporation, ii shall be sufficient in any such Act to ° enact thai bhe clauses of this Aot with respect to the matter so proposed to he incorporated (describing such matter as ii is described in this Acf in the words introductory to the enactment- with respect to such mailer) shall he incorporated with such Act, and thereupon all the clauses and provisions of this Act with respect to the matter so incorporated 322 8 Vic. c. 18. shall, save as so Ear as they shall be expressly varied or exoepted by such A.ot, Eorro pari of such Act, and such Act shall be construed as if the substance of such clauses and provisions were sel forth therein with reference to the matter to which such Act shall relate. Ami with reaped to the purchase of lands by agreement, be u enacted as follows : Power to pur- 6. Subjecl to the provisions of this ami the special Act it shall be lawful ^r™ n nt 8l,y £or the promoters of the undertaking to agree with the owners of any lands by the serial Act. authorised to be taken, and which shall be required for the purposes of such Act. and with all parties having any estate or interest in such lauds or by this or the special Aei enabled to sell and convey the same, \'"•■'■ porated therewith, and the power to release lands from any rent, oharge, or incumbrance, and to agree for the apportionment of any such rent, charge, or incumbrance, shall extend to and may lawfully be exercised by every party hereinbefore enabled to sell and convey or release lands to the promoters of the undertaking. 9. The purchase-monev or compensation to be paid for any lands to be Amount of com- * , ,.,...,. ., -, pcnsation in purchased or taken from any party under any disability or incapacity, and c . lsr of |i;l not having power to sell or convey such lands except under the provisions ["'Jl^*;].'.'' 1 ' ' Of this or tin- special Act, and the compensation to be paid for any per- tained by valua- niancnt damage or injury to any such lands, shall not, except where the g'^^ same shall have been determined by the verdict of a jury, or by arbitration, or by the valuation of a surveyor appointed by two justices under the provision hereinafter contained, be less than shall be determined by the valuation of two able practical surveyors, one of whom shall be nominated by the promoters of the undertaking, and the other by the other party, and if such two surveyors cannot agree in the valuation, then by such third surveyor as any two justices shall, upon application of either party, after notice to the other party, for that purpose nominate ; and each of such two surveyors if they agree, or if not then the surveyor nominated by the said justices, shall annex to the valuation a declaration in writing, subscribed by them or him, of the correctness thereof; and all such purchase-money or compensation shall be deposited in the bank for the benefit of the parties interested, in manner hereinafter mentioned. 10. It shall be lawful for any person seised in fee of, or entitled to Where vendor dispose of absolutely for his own benefit, any lands authorised to be pur- tuu/l'V-nuu"" chased for the purposes of the special Act to sell and convey such lands or may be sold on any part thereof unto the promoters of the undertaking, in consideration of an annual rent-charge payable by the promoters of the undertaking; but, except as aforesaid, the consideration to be paid for the purchase of any such lands, or for any damage done thereto shall be in a gross sum (it). 11. The yearly rents reserved by any such conveyance shall be charged on Payment of the tolls or rates, if any, payable under the special Act, and shall be otherwise j^ r g ed ,' )u secured in such manner as shall be agreed between the parties, and shall tolls. be paid by the promoters of the undertaking as such rents become payable ; and if at any time any such rents be not paid within thirty days after they so become payable, and after demand thereof in writing, the person to whom any such rent shall be payable may either recover the same from the promoters of the undertaking, with costs of suit, by action of debt in any of the Superior Courts, or it shall be lawful for him to levy the same by distress of the goods and chattels of the promoters of the undertaking. («) So much of this section as provides that, save in tho case of lands of which any person is seised in fee or entitled to dispose absolutely for his own benefit, the con- sideration to lie paid for any lands or for any damage done thereto shall be m a gross sum, is repealed by 23 & 24 Tic. c. 106, s. 1. And the 2nd section of the same Act extends sections 10 and 11 of 8 Vic. c. 18, as to power to sell, &c, lands tor an annual rent-charge and to recover the same, to all sales, &c, where parties are under disability. y 2 ■ V2\ 8 Vic. c. 18. Powertopur- 12. In case the promoters of the undertaking shall be empowered by L^ad* thespooial An to purchase lands for extraordinary purposes, it shall be >m- lawful for all parties who, under the provisions hereinbefore contained, would be enabled to sell and convey lands, to sell and convey the lands so authorised to be purchased for extraordinary purposes. Authority to sell L3. It shall be lawful fm- the promoters of the undertaking to sell the suchlan?s ChaSe landa wlli( ' 1 ' ,h( '. v slia " have so acquired for extraordinary purposes, or any part thereof, in such manner, and for such considerations, and to such persons as the promoters of the undertaking may think lit, and again to purchase other lands for the like purposes, and afterwards sell the same, and so from time to time; but the total quantity of land to be held at any one time by the promoters of the undertaking, for the purposes afore- said, shall not exceed the prescribed quantity. Restraint on 14. The promoters of the undertaking shall not, by virtue of the power purchase from fco Durc h ase land for extraordinary purposes, purchase more than the incapacitated ' , , ,. , .... . , , persons. prescribed quantity from any party under legal disability, or who would not lie able to sell and convey such lands except under the powers of this and the special Act ; and if the promoters of the undertaking purchase the said quantity of land from any party under such legal disability, and after- wards sell the whole or any part of the land so purchased, it shall not he lawful for any party being' under legal disability to sell to the promoters of the undertaking any other lands in lieu of the land so sold or disposed of by them. Municipal eor- 15. Xothing in this or the special Act contained shall enable any mum- P°^ ati .°? s n0 *^° cipal corporation to sell for the purposes of the special Act, without the approbation of approbation of the Commissioners of Her Majesty's Treasury of the Tinted "" ' "'" :|SI1I '. V - Kingdom of Great Britain and Ireland, or any three of them, any lands which they could not have sold without such approbation before the passing of the special Act, other than such lands as the Company are by t he powers of this or the special Act empowered to purchase or take com- pulsorily. Capitaltobe And with respect to the purchase and taking of lands otherwise than Deforecompul- b 7 agreement, be it. enacted as follows : sorypowersof 10 _ t„\ Where the undertaking is intended to be carried into effect by purchase put. in x ' * force. means of a capital to be subscribed by the promoters of the undertaking, i he whole of the capital or estimated sum for defraying the expenses of the undertaking shall be Subscribed under contract: binding the parties thereto, their heirs, executors and administrators, for the payment of the several sums by them respectively subscribed, before it shall be lawful to put in force any of the powers of this or the special Act, or an\ Ad incorporated t herewith, in relation to the compulsory taking of land for the purposes of the undertaking. A certificate of 17. (") A certificate under the hands of two justices, certifying that be evidence tC the whole of the prescribed sum has been subscribed, shall be sufficienl i hat the capital has been sub- (<0 These sections are nol Incorporated in the Land Drainage Act, lsci (2t & ii.~> scribed. Vic c. L33), see s. 38, Lands Chimes Act, 1845. 325 evidence thereof) and on the application of the promoters of the under- taking, and the production of such evidence as such justices think proper and sufficient, such justices shall grant such certificate accordingly. 18. When the promoters of the undertaking shall require to purchase Notice or take any of the lands which by this or the special Act, or any Act take i HU ,[ s . incorporated therewith, they are authorised to purchase or take, they shall give notice thereof to all the parties interested in such lands, or to the parties enabled by this Act to sell and convey or release the same, or such of the said parties as shall, after diligent inquiry, be known to the promoters of the undertaking, and by such notice shall demand from such parties the particulars of their estate and interest in such lands, and of the claims made by them in respect thereof; "and every such notice shall state the particulars of the land so required, and that the promoters of the under taking are willing to treat for the purchase thereof, and as to the compen- sation to be made to all parties for (the damage that may be sustained by them by reason of the execution of the works. 19. All notices required to be served by the promoters of the under- Service of taking upon the parties interested in or entitled to sell any such lands shall owners ;ui ,i either be served personally on such parties or left at their last usual place °^^' ic ,^ of of abode, if any such can after diligent inquiry be found, and in case any such parties shall be absent from the United Kingdom, or cannot be found after diligent inquiry, shall also be left with the occupier of such lands, or if there be no such occupier, shall be affixed upon some conspicuous part of such lands. 20. If any such party be a corporation aggregate such notice shall be Service of (a) left at the principal office of business of such corporation, or, if no such corporation office can after diligent inquiry be found, shall be served on some principal aggregate, member, if any, of such corporation, and such notice shall also be left with the occupier of such lands, or, if there be no such occupier, shall be affixed upon some conspicuous part of such lands. 21 If for twentv-one days after the service of such notice, any such If parties fail J . , „,.,.. c i to treat, or m party shall fail to state the particulars of his claim in respect ot any such case ,,,- dispute, laud, or to treat with the promoters of the undertaking in respect thereof, jg^jg^g^ or if such party and the promoters of the undertaking shall not agree as mentioned. to the amount of the compensation to be paid by the promoters of the undertaking for the interest in such lauds belonging to such party, or which he is by this or the special Act enabled to sell, or for any damage that may be sustained by him reason of the execution of the works, the amount of such compensation shall be settled in the manner hereinafter provided for settling cases of disputed compensation. 22 If no ao-reement be come to between the promoters of the under- Disputes as to ° i • . i i t j. n j compensation taking and the owners of or parties by this Act enabled to sell and convey when . ,,„, or release any lands taken or required for or injuriously affected by the am^untcl^ataed i'50 to lie settled (a) Provisions relating to the manner of serving notices are excluded from the by two justices, Land Drainage Act, 1801 (24 & 25 Vic. c. 133), fee s. 28. 326 8 I'/V. c. 18. ion of the undertaking, or any interesi in such lands as to the value of such lands or of an therein, or as to the compensation to i"' ma lo in respeci thereof and if in anj Mich case the compensation claimed shall noi exceed fifty pounds, the same shall be settled by two justices. •I'.l. [f the compensation claimed or offered in any such case shall tih'u i,v exceed fifty pounds, and if the part \ claiming compensation desire to have arbitration or the nine settled by arbitration, .and signify such desire by notice in jury,;; J ■ J nsation i i l of the party claiming compeii Method of ling for disputes as to I -at ion by justices. the promoters of the undertaking, before the} nave issued their warrant to the sheriff to summon a jury in respect of such lands, under the provisions hereinafter contained, stating iu such notice the nature of the; interesi in respect of which such party claims compensation, and the amount of the compensation so claimed, the same shall be so settled accordingly; but unless the party claiming- compensation shall as aforesaid signify his desire to have the question of such compensation settled by arbitration, or if when the matter shall have been referred to arbitration t he arbitrators or their umpire shall for three months nave failed to make their or his award, or if no final award shall be made, the question of such compensation shall be settled by the verdict of a jury, as hereinafter provided. 24. It shall be lawful for any justice, upon the application of either party with respect to any question of disputed compensation by this or the special Act, or any Act incorporated therewith, authorised to be settled by two justices, to summon the other parly to appear before two justices, at a time and place to be named In the 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 justices to hear and determine such question, and for that purpose to examine such parties or any of them, and t heir witnesses, upon oath, and the costs of every such inquiry shall be in the discretion of such just ices, and they shall settle the amounl t hereof. Appointment of -~j- When any question of disputed compensation by t his or the special l " 1 '" 1 "'" Act. or any Act incorporated therewith, authorised or required to be questions are to J be determined settled by arbitration, shall have arisen, then, unless both parties shall iy t A . theunder- and shall forthwith, on demand, at then- own expense, furnish a copy thereof to the other party to the arbitration, and shall tit all times, on demand, produce the said award, and allow the same to be inspected or examined by such party or any person appointed by him for that purpose. Submission 36. The submission to any such arbitration may be made a rule of any l: ' '"' " l; " lr a of the Superior Courts, on t he application of eil her of the part ies. rule oi court. c A.ward aotvoid 37. No .award made with respect to tiny question referred to arbitral ion ,l|, , l,n ''' ' '""' under the provisions of this or the special Acl shall be set aside lor irregu- iu form. ' n larity or error in mat ter of form. Promoti ol 38. Before the promoters of the undertaking shall issue their warrant 1 ndertaking p ummonine a jury for settling any case of disputed compensation they t ce notice ■' . . . before shall give not, less than ten days' notice to the other partj of their intention Lands Clauses Act, 1845. :J20 fco cause such jury to be summoned, and in such notice the promoters of the summoning a undertaking shall slate what, sum of money they are willing to give for the interest in such lands sought to be purchased by them from such party, and for the damage to be sustained by him for the execution of such works. 39. In every case in which any such question of disputed compensation Warrant for shall be required to be determined by the verdict of a, jury, the promoters ^'i',"', 1 ,',")"^ of the undertaking shall issue their warrant to the sheriff, requiring him to addressed to the summon a 'jury for that purpose, and such warrant shall he under the common seal of the promotors of the undertaking if they be a corporation, or if they he not a corporation under the hands and seals of such promoters or any two of them ; and if such sheriff be interested in the matter in dispute such application shall be made to some coroner of the county in which tin' lands in question, or some part thereof, shall be situate, and if all the coroners of such county be so interested, such application may be made to some person having tilled the office of sheriff or coronor in such county, and who shall be then living there, and who shall not be interested in the matter in dispute; and with respect to the persons last mentioned pre- ference shall be given to one who shall have most recently served either of the said utlices ; and every ex-sheriff, coroner, or ex-coroner shall have power, if he think fit, to appoint a deputy or assessor. h». Throughout the enactments contained in this Act relatiug to the Provisions . i .1 d i ■»>, • i ii ■ • applicable to reference to a jury, where the term sheritt is used, the provisions gberiff t() apply applicable thereto shall be held to apply to every coroner or other person to coroner lawfully acting in his place, and in every case in which any such warrant shall have been directed to any other person than the sheriff, such sheriff shall, immediately on receiving notice of the delivery of the warrant, deliver over, on application for that purpose, to the person to whom the same shall have been directed, or to any person appointed by him to receive the same, the jurors' book and special jurors' list belonging to the county where the lands in question shall be situate. 41. Upon the receipt of such warrant the sheriff shall summon a jury of Jury to be . -..„. , i i !•«■ t i summoned. twenty-four indifferent persons, duly qualified to act as common jurymen in the Superior Courts, to meet at a convenient time and place to be appointed by him for that purpose, such time not being less than fourteen nor more than twenty-one days after the receipt of such warrant, and such place not being more than eight, miles distant from the lands in question, unless by consent of the parties interested, and he shall forth- with give notice to the promoters of the works of the time and place so appointed by him. 42. Out of the jurors appearing upon such summons a jury of twelve Jury to be persons shall be drawn by the sheriff, in such manner as juries for trials "" 1 ' a " of issues joined in the Superior Courts are bylaw required to be drawn, and if a sufficient number of jurymen do not appear in obedience to such summons the sheriff shall return other indifferent men duly qualified as 330 8 Vic. c. 18. aforesaid, of the bystanders, or others thai can speedily be procured, to make up the jury to the number aforesaid ; and all parties concerned may have their lawful challenges against any of the jurymen, but no such party shall challenge the array. Sheriff lo 43. The sheriff shall preside on the said inquiry, and the party claiming compensation shall be deemed the plaintiff , and shall have all such rights and privileges as the plaintiff is entitled to in the trial of actions at laws, and if either party so requesl in writing, the sheriff shall summon before him any person considered accessary to be examined as a witness touching the matters in question, and on the like request the sheriff shall order the jury or any six or more of them, to view the place or matter in contro- versy, in like manner as views may be had in the trial of actions in the Superior Courts. Penalty on II. 1ft he sheriff make default in any of the matters hereinbefore required ,;'',',',' ■' ury to be done by him in relation to any such trial or inquiry, he shall forfeit fifty pounds for every such offence, and such penalty shall be recoverable by the promoters of the undertaking by action in any of the Superior Courts; and if any person summoned and returned upon any jury under this or the special Act, whether common or special, do not appear, or if appearing, he refuse to make oath, or in .any other manner unlawfully neglect his duty, he shall, unless he show reasonable excuse to the satis- faction of the sheriff, forfeit ti sum not exceeding ten pounds, and every such penalty payable by a sheriff or juryman shall be applied in satisfac- tion of the costs of the inquiry, so far as the same will extend; and, in addition to the penalty hereby imposed, every such juryman shall be subject to the same regulations, pains, and penalties as if such jury had been returned for the trial of an issue joined in any of the Superior Courts. PenaltyoD 45. If any person duly summoned to give evidence upon any such witnesses inouirv, and to whom a tender of his -reasonable expenses shall have been ii ng aeiauit * j > * made, fail to appeal- at the time and place specified in the summons with- out sufficient cause, or if any person, whether summoned or not, who shall appear as a witness refuse to he examined on oath touching the subject matter in question, every person so offending shall forfeit to the party aggrieved a sum not exceeding ten pounds. Noticeof ''''• - Xsi " ' l ' ss than ten days' notice of the time and place of the inquiry. inquiry shall be given in writing by the promoters of the undertaking to the other party. [fthepaity '"• " ''"' party claiming compensation shall not appear at the time make default appointed for the inouirv. such inquiry shall not be further proceeded in, 1 '"' inquii v nol ' ' . , ,, , .. , , , « i i • i i toproi but the compensation to be paid shall be such as shall be ascertained by a surveyor appointed by two justice-- in manner hereinafter provided. jury to be t3. before the Jury proceed to inquire of and assess the compensation sworn. ,,,. damage in respect of which their verdict is to be given, they shall make Lands Clauses Act, 1845. 331 oath that they will truly and faithfully inquire of and assess such compen- sation or damage, and the sheriff shall administer such oaths, as well as the oaths of all persons called upon to give evidence. 49. Where such inquiry shall relate to the value of lands to be purchased, Mums to bo paid and also to compensation claimed for injury done or to be done to the lands /" V". 1 Ji'^\ '." held therewith, the jury shall deliver their verdict separately for the sum of damage to be money to be paid for the purchase of the lands required for the works, or g epara telv of any interest therein belonging to the party with whom the question of disputed compensation shall have arisen, or which, under the provisions herein contained, he is enabled to sell or convey, and for the sum of money to be paid by way of compensation for the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such lands by the exercise of the powers of this or the special Act, or any Act incor- porated therewith. 50. The sheriff before whom such inquiry shall be held, shall give Verdict and judgment for the purchase -money or compensation assessed by such jury, judgment to be and the verdict and judgment shall be signed by the sheriff, and being so signed shall be kept by the clerk of the peace among the records of the General or Quarter Sessions of the county in which the lands or any part thereof shall be situate in respect of which such purchase-money or com- pensation shall have been awarded ; and such verdicts and judgments shall be deemed records, and the same or true copies thereof shall be good evidence in all courts and elsewhere, and all persons may inspect the said verdicts and judgments, and may have copies thereof or extracts there- from, on paying for each inspection thereof one shilling, and for every one hundred words copied or extracted therefrom sixpence, which copies or extracts the clerk of the peace is hereby required to make out, and to sign and certify the same to be true copies. 51. On every such inquiry before a jury, where the verdict of the jury Costs of the shall be given for a greater sum than the sum previously offered by the {" ,| ) u "!j\ how t0 promoters of the undertaking ; all the costs of such inquiry shall be borne by the promoters of the undertaking, "but if the verdict of the jury be given for the same or a less sum than the sum previously offered by the promoters of the undertaking, or if the owner of the lands shall have failed to ajipcar at the time and place appointed for the inquiry, having received due notice thereof, one-half of the costs of summoning, imjianeUing, and returning the jury, and of taking the inquiry and recording the verdict and judgment thereon, in case such verdict shall be taken, shall be defrayed by the owner of the lands, and the other half by the promoters of the undertaking, and each party shall bear his own costs, other than as aforesaid, incident to such inquiry. o2. The costs of any such inquiry shall, in case of difference, be settled Particulars of by one of the Masters of the Court of Queen's Bench of England or e costs - Ireland, according as the lands are situate, on the application of either party. 332 8 Vic c. 18. and such oostB Bhall include all reasonable costs, charges, and expenses incurred in summoning, impanelling, and returning the jury, taking the inquiry, the attendance of witnesses, the employment of counsel and attornies, recording the verdict and judgment thereon, and otherwise incident to such inquiry. Paymentof 53. If any such costs shall be payable by the promoters of the undertaking, and if within seven days after demand such costs be not paid to the party entitled to receive the same, thej shall be recoverable by distress, and on any application to any justice he shall issue his warrant accordingly ; and if any such costsshall be payable by the owner of the lands or any interest therein, the same may be deducted and retained by the promoters of the undertaking, out of any money awarded by the jury to Buch owner, or determined by the valuation of a surveyor under provision hereinafter contained ; and the payment or deposit of the remainder, if any, of such money shall be deemed payment and satisfaction of the whole thereof, or if such costs shall exceed the amount of the money so awarded or determined, the excess shall he recoverable by distress, and on applica- tion to tiny justice he shall issue his warrant accordingly. Special jury to 54, If either party desire any such question of disputed compensation be summoned ;|S aforesaid to he tried before a special jury, such question shall be BO efttar'party!' ° tried, provided that notice of such desire, if coming from the other party, begiven to the promoters of the undertaking before they have issued their warrant to the sheriff ; ami for that purpose the promoters of the under- taking shall by their warrant to the sheriff require him to nominate a special jury for such trial : and thereupon the sheriff shall, as soon as con- veniently may he after the receipt by him of such warrant, summon both the parties to appear before bim, by themselves or their attorneys, at some convenient time and place appointed by him for the purpose of nominating a special jury (not being 1 ^ss than live nor more than eight days from the service of Mich summons); and tit the place and time so appointed the sheriff shall proceed to nominateand strike a special jury, in the manner in which such juries shall be required by the laws for the time being in force to he nominated or st ruck by t he proper officers of the Superior Courts, and the sheriff shall appoint a day, not later than the eighth daj after striking such jury for the parties or their agents to appear before bim to reduce the number Of SUCh jury, and thereof shall give four days 1 notice to the parties ; and on ,1,,. ,|. |V B0 appointed the sheriff shall proceed to reduce the said special jury to the number of twenty, in the manner used and accustomed by the proper officers of the Superior Courts. Deficiency of 55. The special jury on such inquiry shall consist of twelve of the special ' s .,i,l , W enty who shall first appear on the names being Called over, the parties 'main- their lawful challenges against any of the said jurymen ; .,,,,1 if a full jury do not appear, or if after such challenges a full jury ,1,, ,,ot remain, then, upon the application of either parly, the sheriff uhal] add to the list of such jury the names of any other disinterested ma qualified to act aa special or common jurymen, who shall not jurj men. Lands Glauses Act, 1845. 333 have been previously struck off the aforesaid list, and who may then bo attending the court, or can speedily bo procured, so as to complete such jury, all parties having their lawful challenges against such persons; and the sheriff shall proceed to the trial and adjudication of the matters in question by such jury, and such trial shall be attended in all respects with the like incidents and consequences, and the like penalties shall be applicable, as hereinbefore provided in the case of a trial by common jury. 56. Any other inquiry than that for the trial of which such special jury other inquiries mar have been struck and reduced as aforesaid may be tried by such jury before same / . J J J » special jury by provided the parties thereto respectively shall give their consent to such consent. trial. 57. No juryman shall, without his consent, be summoned or required to Jurymen not to , . -.. o . -, ,, . attend more attend any such proceeding as aforesaid more than once m any year. tuan once a year. 58. The purchase-money or compensation to be paid for any lands to be Compensation purchased or taken bv the promoters of the undertaking from any party t0 absent , , „ , ' „ . . . ., . in parties to be who, by reason of absence from the kingdom, is prevented from treating, determined by a or who cannot after diligent inquiry be found, or who shall not appear at ~ n J T^ y ? r ( j 1( . the time appointed for the inquiry before the jury as hereinbefore provided two justices. for, after due notice thereof, and the compensation to be paid for any permanent injury to such lands, shall be such as shall be determined by the valuation of such able practical surveyor as two justices shall nominate for that purpose as hereinafter mentioned. 59. Upon application by the promoters of the undertaking to two Two justices to justices, and upon such proof as shall be satisfactory to them that any " m m ™OT a such party is, by reason of absence from the kingdom, prevented from treating, or cannot after diligent inquiry be found, or that any such party failed to appear on such inquiry before a jury as aforesaid, after clue notice to him for that purpose, such justices shall, by writing under their hands, nominate an able practical surveyor for determining such compensation as aforesaid, and such surveyor shall determine the same accordingly, and shall annex to his valuation a declaration in writing subscribed by him of the correctness thereof. 60. Before such surveyor shall enter upon the duty of making such Declaration to valuation as aforesaid he shall, in the presence of such justices, or one of be made by the ' r . surveyor, them, make and subscribe the declaration following at the foot of such nomination ; that is to say, "I, A.B., do solemnly and sincerely declare, that I will faithfully, impartially and honestly, according to the best of my skill and ability, execute the duty of making the valuation hereby referred to me. "A.B. " Made and subscribed in the presence of ." And if any surveyor shall corruptly make such declaration, or having made such declaration, shall wilfully act contrary thereto, he shall be guilty of a misdemeanour. 334 8 Vic c. 18. Valuation, &c. tn be pr to the owner of the lands on ■ill. Expen - borne by prom Purchase- money and compensation, how to he esl imated. 61. The said nomination and declaration shall In- annexed to the valua- tion to be made by snoh surveyor, and shall be preserved, together there- with by the promoters of the undertaking, and they shall at all times produce the said valuation and other documents, on demand, to the owner of the lands comprised in Buch valuation, and to all other part ies interested t berein. 02. All the expenses of and incident to every such valuation shall be borne by the promoters of the undertaking. 63. fn estimating the purchase-money or compensation to bepaid by the promoters of the undertaking in any of the cases aforesaid, regard shall be had by the justices, arbitrators, or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the promoters of the undertaking, hut also to the damage, if any. to be sustained by the owner of the Lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorpo- rated therewith. 64. When the compensation payable in respect of any lands, or any '"'"l""'"- 1 "'"" interest therein, shall have been ascertained by the valuation of a surveyor, li'/s been ''' ' and deposited in the hank under the provisions herein contained, by reason determined by ( , { fch owner f or party entitled to convoy such lands or such interest b sun ej or, t he r •' , „ , . . , .arty may have therein as aforesaid could not be found, or was absent from the kingdom, if such owner or party shall be dissatisfied with such valuation, it shall be lawful for him, before he shall have applied to the Court of Chancery for payment or investment of the moneys so deposited under the provisions herein contained by notice in writing to the promoters of the undertaking, to require the question of such compensation to be submitted to arbitra- tion, and thereupon the same shall be so submitted accordingly, in the same manner as in other cases of disputed compensation hereinbefore authorised or required to be submitted to arbitration. Queationtobe 65. The question to be submitted to the arbitrators in the case last Bnhmittedto aforesaid shall be, whether the said sum so deposited as aforesaid by the the arbitrators. . promoters of the undertaking was a sufficient sum, or whether any and what further sum ought to be paid or deposited by them. Tf further sum 06. If the arbitrators shall award that a further sum ought to be paid or deposited by the promoters of the undertaking, they shall pay or deposit, as the ease may require, such further sum within fourteen days after the making of such award, or in default thereof the same may be enforced by attachment, or recovered with costs by anion or suit in any of the Superior Courts. 07 . If the arbitrators shall determine that the sum so deposited was sufficient, the costs of anil incident to such arbitration, to be determined by the arbitrators, shall he in the discretion of the arbitrators, but if the arbitrators shall determine thai a fun her sum ought to be paid y any lands, or of any interest therein, which shall have been taken for •' 1 ' l '^. tT . i 1 l f t i l \ ',".'"' or injuriously affected by the execution of the works, and for which, option of the the promoters of the undertaking shall not have made satisfaction under compensationf the provisions of this or the special Act or any Act incorporated therewil a, and if the compensation claimed in such case shall exceed the sum of fifty pounds, such party may have the same settled either by arbitration or by the verdict of a jury, as he shall think fit; and if such party desire to have the same settled by arbitration, it shall be lawful for him to give notice in writing to the promoters of the undertaking of such his desire, stating in such notice the nature of the interest in such lands in respect of which ho claims compensation, and the amount of the compensation so claimed therein ; and unless the promoters of the undertaking be willing to pay the amount of compensation so claimed, and shall enter into a written agreement for that purpose within twenty-one days after the receipt of any such notice from any party so entitled, the same shall be settled by arbitration in the manner herein provided ; or if the party so entitled as aforesaid desire to have such question of compensation settled by jury, it shall be lawful for him to give notice in writing of such his desire to the promoters of the undertaking, stating such par- ticulars as aforesaid, and unless the jjromoters of the undertaking bo willing to pay the amount of compensation so claimed, nil enter into a written agreement for that purpose, they shall, within twenty-one days after the receipt of such notice, issue their warrant to the sheriff to summon a jury for settling the same in the manner herein provided, and in default thereof they shall be liable to pay to the party so entitled as aforesaid the amount of compensation so claimed, and the same may bo recovered by him, with costs, by action in any of the Superior Courts. And with respect to the purchase-money or compensation coming to Application of parties having limited interests, or prevented from treating, or not making com l iensatlou - title, be it enacted as follows : — G9. If the purchase-money or compensation which shall be payable in Purchase- respect of any lands, or any interest therein, purchased or taken by the ^g to parties promoters of the undertaking from any corporation, tenant for life or in tail, under disability married woman seised in her own right or entitled to dower, guardian, £200 to be de- committee of lunatic or idiot, trustee, executor or administrator, or person P 08 **^ hi the ' ' 1 hank. having a partial or qualified interest only in such lands, and not entitled to sell or convey the same except under the provisions of this or the special Act, or the compensation to be paid for any permanent damage to any such lands, amount to or exceed the sum of two hundred pounds, the same shall bepaidintothebank in I lie name and with the privity of the Accountant- General of the Court of Chancery in England if the same relate to lands :;.;.; 8 Vie. c. 18. Application of moneys de- posited. in England or Wales, or the A.ccountant-Genera] of the Co.uri of Exchequer in [reland if the Bame relate to hi mis in 1 rein ml. to be placed to the account there of such Accountant- General, ea parte the promoters of the under- taking (describing them by their proper name), in the matterof the special Act (citing it), purauani to the method prescribed by any An for the time being in force for regulating moneys paid into the said Courts; and such moneys shall be so deposited until the same shall be applied to Borne one or more of the following purposes ; thai il to say, In the purchase or redemption of the lam! tax, or the discharge of any debl or incumbrance affecting the land in respecl of which such money shall have been paid, or affecting other lauds settled therewith to the same or the like uses, trusts or pur- poses : or [n the. purchase of other lands to he conveyed, limited and settled upon the like uses, trusts, and purposes, and in the same manner as t he lands in respect of which such money shall have been paid stood settled ; or If such money shall he paid in respect of any buildings taken under the authority of this or the special Act, or injured by the proximity of the works, in removing or replacing such buildings or substituting others in their stead, in such manner as the Court of Chancery shall direct ; or In payment to any party becoming absolutely entitled to such money. Order for appli- 70. Such money may be so applied as .aforesaid upon an order of the vestment mean- Couri of Chancery in England or the Court of Exchequer in Ireland, made while. on the petition of the party who would have been en< it led to t he rents and profits of the lands in respect of which such money shall have been depo- sited; and until the money can be so applied it may, upon the like order, be invested by the said Accountant- General in the purchase of three per centum Consolidated or three per centum Reduced Hank Annuties, or in (loverniueiit or real securities, and the interest, dividends, and annual proceeds thereof paid to the party who would for the time being have been entitled to the rents and profits of the lands. Sums from £20 to L'litx) tobede. posited or paid to trnste -. 71. If such purchase-money or compensation shall not amount to the sum of two hundred pounds, and shall exceed the sum of twenty pounds, the same shall either be paid into the hank, ami applied in the manner hereinbefore directed with respect to sums amount ing to or exceeding two hundred pounds, or the same may lawfully he paid to two trusties, to In- nominated by the parties entitled to the rents or profits of the lands in respecl whereof the same shall be payable, such nomination to be signified by writing under the hands of the party so entitled; and in case of the coverture, infancy, lunacy, or other incapacity of the parties entitled to such moneys, such nomination may lawfully be made by their respective husbands, guardians, committees, or trustees; but such last-mentioned Lands Clauses Act, 1845. 337 application of the moneys shall not be made unless the promoters of the undertaking approve thereof and of the trustees named for the purpose; and the money so paid to such trustees, and the produce arising therefrom, shall be by such trustees applied in the manner hereinbefore directed with respect to money paid into the bank, but it shall not be necessary to obtain any order of the court for that purpose. 72. If such money shall not exceed the sum of twenty pounds, the same Sums not ex- shall be paid to the parties entitled to the rents and profits of the lands in be paid to respect whereof the same shall be payable for their own use and benefit, parties. or in case of the coverture, infancy, idiotcy, lunacy, or other incapacity of any such parties, then such money shall be paid, for their use, to the respective husbands, guardians, committees, or trustees of such persons. 73. All sums of money exceeding twenty pounds, which may be payable All sum-; pay- by the promoters of the undertaking in respect of the taking, using, or t^cVwh^ei?" interfering with any lands under a contract or agreement with any person sons who shall not be entitled to dispose of such lands, or of the interest therein topauHiito 6 ' contracted to be sold by him absolutely for his own benefit, shall be paid bank. into the bank or to trustees in manner aforesaid ; and it shall not be lawful for any contracting party not entitled as aforesaid to retain to his own use any portion of the sums so agreed or contracted to be paid for or in respect of the taking, using, or interfering with any such lands, or in lieu of bridges, tunnels, or other accommodation works, or for assenting to or not opposing the passing of the Bill authorising the taking of such lands ; but all such moneys shall be deemed to have been contracted to be paid for and on account of the several parties interested in such lands, as well in possession as in remainder, reversion, or expectancy: provided always, that it shall be in the discretion of the Court of Chancery in England, or the Court of Exchequer in Ireland, or the said trustees, as the case may be, to allot to any tenant for life, or for any other partial or qualified estate, for his own use, a portion of the sum so paid into the bank, or to such trustees as aforesaid, as compensation for any injury, inconvenience, or annoyance which he may be considered to sustain, independently of the actual value of the lands to be taken, and of the damage occasioned to the lands held therewith, by reason of the taking of such lands and the making of the works. 74. Where any purchase-money or compensation paid into the bank Court of Chan- under the provisions of this or the special Act shall have been paid in ap^i^tfo^of ' respect of any lease for a life or lives of years, or for a life or lives and money ic .,,,,, iii.e-ixi a pectofle:!- years, or for any estate in lands less than the whole tee simple thereof, or or r of any reversion dependent on any such lease or estate, it shall be lawful ^ink^'i "t^ for the Court of Chancery in England, or the Court of Exchequer in Ireland, on the petition of any party interested in such money, to order that the same be laid out, invested, accumulated, and paid in such manner as the said court may consider will give to the parties interested in such Z 338 8 Vic. c. 18. Upon a being made, the owners of the voy, nr in lie- fault the lam's in the the under- taking upon a deed poll being exe mted. Where parties refuse to convey, ordo nol Bhow title, or cannot be found, the pui'chase- mone; to be i 1 p oited. money the same benefit bherefrom as they might lawfully have had from the lease, estate, or reversion in reaped of which such money shall have been paid, "r as near thereto as maj be. 7."). Upon deposii in the hank in manner hereinbefore provided of the purchase-money or compensation agreed or awarded bo be paid in respecl of any Lands purchased or taken by the promoters of the andi rtaking, ander the provisions of this or the special Act or any A.ct incorporated therewith, the owner of such lands, including in such term all parties by this Act enabled to sell or convey lands, shall, when required so to do i>\ the promoters of the undertaking, duly convey such lands to the promoters of the undertaking, or as they shall direct; and in default thereof; Or it' he fail to adduce a g I title to SUCh lands to their satisfaction, it shall be lawful for the promoters of the under- taking, if they think tit, to execute a deed poll under their common seal, if they be a corporation, or if they be not a corporation under the hands and seals of the promoters, or any two of them, containing a description of the lands in respect of which such dcfult shall be made, and reciting- the purchase or taking thereof by the promoters of the undertaking, and the names of the parties from whom the same were purchased or taken, and t tie deposii made in respect thereof, and declaring the fact of such default having been made, and such deed poll shall be stamped with the stamp duty which would have been payable upon a conveyance to the promoters of the undertaking- of the lands described therein ; and thereupon all tho estate and interest in such lands of or capable of being sold and conveyed by the party between whom and the promoters of the undertaking such agreement shall have been come to, or as between whom and the promoters of I he undertaking such purchase-money or compensation shall have been determined by a jury, or by arbitrators, or by a surveyor appointed by two justices an herein provided, and shall have been deposited as aforesaid, shall vest absolutely in the promoters of the undertaking, and as against such parties, and all parties on behalf of whom they are hereinbefore enabled to sell and convey, the promoters of the undertaking shall be entitled to immediate possession of such lands. 70. If the owner of any such lands purchased or taken by the promoters of the undertaking, or of any interest therein, on tho tender of t he purchase-money or compensation either agreed or awarded to be paid in respect thereof , refuse to accept the same, or neglect or fail to make out a title to such lands, or to the interest therein claimed by him, to the sat is fact ion of the promoters of the undertaking, or if he refuse to convey or release such lands as directed l>\ the promoters of the undertaking, or if any such owner be absent from the kingdom, or cannot after diligent inquiry be found or fail to appear on the inquiry before a jury as herein provided for, it shall be lawful for tho promoters of the undertaking to deposii the purchase-money or compensation payable in respect of such lands or any interest therein, in the bank in the name and with (lie privity of the Accountant-General of the Court of Chancery in England or the Lands Clauses Act, 181-5. -*>:39 Court of Exchequer in [reland, to be placed, except in the cases herein otherwise provided for, to his account there, to the credit of the partii interested in such lands (describing them so far as the promoters of the undertaking can do), subject to the control and disposition of the said Court. 77. Upon any such deposit of money as last aforesaid being made the Upon di cashier of the bank shall give to the promoters of the undertaking, or to rece ipt to be the party paying in such money by their direction, a receipt for such given, and the money, specifying therein for what and for whose use (described as afore- U pona dee said) the same shall have been received, and in respect of what purchase De mg executed. the same shall have been paid in ; and it shall be lawful for the promoters of the undertaking, if they think lit, to execute a deed poll under their common seal if they be a corporation, or if they be not a corporation under the hands and seals of the said promoters, or any two of them, containing a description of the lands in respect whereof such deposit shall have been made, and declaring the circumstances under which and the names of the parties to whose credit such deposit shall have been made, and such deed poll shall be stamped with the stamp duty which would have been payable upon a conveyance to the promoters of the undertaking of the lands described therein ; and thereupon all the estate and interest in such lands of the parties for whose use and in respect whereof such purchase-money or compensation shall have been deposited shall vest absolutely in the promoters of the undertaking, and as against such parties they shall be entitled to immediate jjossession of such lands. 78. Upon the application by petition of any party making claim to the Application of money so deposited as last aforesaid, or any part thereof, or to the lands in ^posited. respect whereof the same shall have been so deposited, or any part of such lands, or any interest in the same, the said Court of Chancery in England or the Court of Exchequer in Ireland may, in a summary way, as to such court shall seem fit, order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment of the dividends thereof, according to the respective estates, titles or interests of the parties making claim to such money or lands, or any part thereof, and may make such other order m the premises as to such court shall seem fit. 79. If any question arise respecting the title to the lands in respect Party in whereof such moneys shall have been so paid or deposited as aforesaid, bedeemedthe the parties respectively in possession of such lands, as being the owners 0W11 «'. thereof, or in receipt of the rents of such lands, as being entitled thereto at the time of such lands being purchased or taken, shall be deemed to have been lawfully entitled to such lands until the contrary be shown to the satisfaction of the court; and unless the contrary be shown as afore- said, the parties so in possession and all pai'tics claiming under them or consistently with their possession, shall be deemed entitled to the money so deposited, and to the dividends or interest of the annuities or :;io 8 Vic. c. 18. of money deposited. Form of i securities purchased therewith, and the same shall be paid and applied accordingly. 80. In all cases of moneys deposited in the bank ander the provisions of this or the special Act, or an Acl incorporated therewith, except where such moneys shall have been so deposited by reason of t lie wilful refusal of any party entitled thereto to receive the same, or to convey or release the lands in respeet whereof the same shall be payable, or by reason of the wilful neglecl of any parly to make out a good title to the land required, it -hall he lawful for the Court of Chancery in England or the Conn '.I' Exchequer in I reland to order the costs of the following matters, including therein all reasonable charges and expenses incident thereto, to be paid by the promoters of the undertaking (that is to say), the costs of the purchase or taking of the lands, or which shall have been incurred in consequence of, other than such costs as are herein otherwise provided for, and the Costs of the investment of such moneys in ( io\ -eminent or real securities, and of the re-investment thereof in the purchase of other lands, and also the cost of obtaining the proper orders for any of the purposes aforesaid, and of the orders for the payment of the dividends and interest of the securities upon which such moneys shall be invested, and for the payment i hi of the court of the principal of such moneys or of the securities whereon nie shall be invested, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants: provided always thai the costs of one application only for re-investment in land shall be allowed, unless it shall appear to the Conrtof Chancery in England or the Court of Exchequer in [reland that it is for the benefit of the parties interested in the said moneys that tin- same should be invested in the purchase of hinds, in different sums and at different times, in which case it shall lie lawful for the court, if it think tit. to order the costs of any such investments to be paid by the promoters of the under- taking. And with respect to the convej ances of lands, be it enacted as follows : 81. Conveyances of lands to be purchased under the provisions of this or the special Act, or any Act incorporated therewith, may be according to the forms in the Schedules A and B respectively to this Act annexed, near thereto as the circumstances of the case will admit, or by deed in any other form which the promoters of the andertaking may think (it and all conveyances made according to the forms in the said schedules or as near t hereto as tin.' circumstances of the case will admit shall be effectual to vest the kinds thereby convoyed in the promoters of the andertaking, and shall operate to merge all terms of years attended by express declarat- or by construction of law, on the estate of interest so thereby ed, and. to bar and to destroy all such estates tail, and all other hts, titles, remainders, reversions, limitations, trusts and interests whatsoever, of and in the Lands comprised in such conveyances which shall have been purchased or compensated for by the consideration therein Lands Clauses Act, 1845. 341 mentioned ; but although terms of years be thereby merged, they shall in equity afford the same protection as if they had been kept on foot, and assigned to a trustee for the promoters of the undertaking to attend the reversion and inheritance. 82. The costs of all such conveyances shall be borne by the promoters Costs of of the undertaking, and such costs shall include all charges and expenses conveyances. incurred, on the part as well of the seller as of the purchaser, of all con- veyances and assurances of any such lands, and of any outstanding terms or interests therein, and of deducing, evidencing, and verifying the title to such lands, terms or interests, and of making out aDd furnishing such abstracts and attested copies as the promoters of the undertaking may require, and till other reasonable expenses incident to the investigation, deduction and verification of such title. 83. If the promoters of the undertaking and the party entitled to any Taxation of such costs shall not agree as to the amount thereof such costs shall be taxed costs ^^^ by one of the Taxing Masters of the Court of Chancery or by a Master in Chancery in Ireland, or npon an order of the same court, to be obtained upon petition in a summary way by either of the parties ; and the promoters of the undertaking shall pay what the said Master shall certify to be due in respect of such costs to the party entitled thereto, or in default thereof the same may be recovered in the same way as any other costs payable undSr an order of the said court, or the same may be recovered by distress in the manner hereinbefore provided in other cases of costs ; and the expense of taxing such costs shall be borne by the promoters of the undertaking, unless upon such taxation one-sixth part of the amount of such costs shall be disallowed, in which case the costs of such taxation shall be borne by the party whose costs shall be so taxed, and the amount thereof shall be ascertained by the said Master, and deducted by him accordingly in his certificate of such taxation. And with respect to the entry upon lands by the promoters of the under- taking, be it enacted as follows : 84. (a) The promoters of the undertaking shall not, except by the consent Payment of of the owners and occupiers, enter ui^on any lands which shall be required l irice t0 De r L J * niade previous to be purchased or permanently used for the purposes and under the powers to entry, except of this or the special Act, until they shall either have paid to every party ° feun ej ' c " having any interest in such lands, or deposited in the bank, in the manner herein mentioned, the purchase-money or compensation agreed or awarded to be paid to such parties respectively for their respective interests therein : provided always, that for the purpose merely of surveying and taking levels of such lands, and of probing or boring to ascertain the nature of the soil, and of setting out the line of works, it shall be lawful for the promoters of the undertaking, after giving not less than three nor more than fourteen days' notice to the owners or occupiers thereof, to enter upon such lands («) This and the sections following to section 91 inclusive are not incorporated in the Land Drainage Act, 18C1, 24 & 25 Vic. c. 133. See s. 28. ::!•! 8 V', te. c. 18. allowed I purchas . making by wa security and Upon deposit D ! bo give withoB at, making compensation for any damage thereby ioned to I he owners or occupiers i hereof. 85. Provided also, thai if th I the undertaking shall be desirous of entering upon and using any such lands before an agreemenl shall have been come 1 i irdmade,orverdic1 given for the purchase- or compensation to be paid by them in respect to such lands, i\ shall be lawful for the promoters of the undertaking to deposit in the bank by way of security, as hereinafter mentioned, cither the amount of purchase-money or compensation claimed by any party interested in or entitled to sell or convej such lands, and who shall not consent to such entry, or such a sum as shall, by a surveyor appointed by two justices in the manner hereinbefore provided in the case of parties who cannot be found, be determined to be the value of such land-, or of the interest therein which such party is entitle to or enabled to sell and convey, and also to give to such party a bond, under the common seal of the promoters if they be a corporation, or if they be not a corporation under the hands and seals of the said promoters, or any two of them, with two sufficient sureties to be approved of by two justices in case the parties differ, in a penal sum equal to the sum to be deposited, conditioned for payment to .such party, or for deposit in the hank for the benefit of the parties inter- ested in such lands , as the case may require, under the provisions herein contained, or all such purchase-money or compensation, as may in manner hereinbefore provided be determined to be payable by the promoters of the undertaking in respect of the lands so entered upon, together with interest thereon, at the rate of five pounds per centum per annum, from the time of entering on such lands, until such purchase-money or compen- sation shall be paid to such party, or deposited in the hank For the benefit of the parties interested in such lands, under t he provisions herein con- tained; and upon Buch deposit by way of security being made as aforesaid, and such bond being delivered or tendered to such nonconsenting party as aforesaid, it shall be lawful for the promoters of the undertaking to enter upon and tise such lands, without having first paid or deposited the purchase-money or compensation in other cases required to be paid or ited by them before entering upon any lands to be taken by them under the provisions of this or the special Act. 86. (a) The money so to be deposited as Last aforesaid shall be paid into the bank in the name and with theprivitj of the Accountant- General of the Court of Chancery in England or the Court of Exchequer in Ireland, to be placed to his account there to the credit of the parties interested in or entitled to sell and convey the lands so to be entered upon, and who shall not have consented to such entry, subject to the control and dispo- sition of the said couri ; and upon such deposit being made, the cashier of the hank shall give to the promoters of the undertaking, or to the partj paying in such money by their direction, a receipt for such money, (a) 8i e sii/ira, s. 84. Lands Clauses Act, 1845. 343 specifying therein for what purpose and to whose credit the same shall have been paid in. 87. (a) The money so deposited as last aforesaid shall remain in the bank, Deposit to 1 iy way of security to the parties whose lands shall so have been entered secur ity and to upon for the performance of the condition of the bond to be given by the be applied promoters of the undertaking, as hereinbefore mentioned, and the same direction of may, on the application by petition of the promoters of the undertaking, the Court. bo ordered to be invested in bank annuities or Government securities, and accumulated ; and upon the condition of such bond being fully performed, it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland, upon a like application, to order the money so deposited, or the funds in which the same shall have been invested, together with the accumulation thereof, to be repaid or transferred to the promoters of the undertaking, or if such condition shall not be fully performed, it shall be lawful for the said court to order the same to be applied in such manner as it shall think fit for the benefit of the parties for whose security the same shall so have been deposited. 88. (a) If at any time the Company be ivnable, by reason of the closing The Company of the office of the Accountant-General of the Court of Chancey in England deposit^ioney or the Court of Exchequer in Ireland, to obtain his authority in respect of into the bank the payment of any sum of money so authorised to be deposited in the security during bank by way of security as aforesaid, it shall be lawful for the Company to tne ti ™° t,l, '! t , J J J ' i j t l 10 office of the pay into the bank, to the credit of such party or matter as the case may Accountant- require (subject nevertheless to being dealt with as hereinafter provided, c T e " 01 j 1S and not otherwise), such sum of money as the promoters of the under- taking shall, by some writing signed by their secretary or solicitors for the time being, addressed to the Governor and Company of the bank in that behalf, request, and upon any such payment thereof being made the cashier of the bank shall give a certificate thereof ; and in every such case within ten days after the re-opening of the said Accoiintant-General's office, the solicitor for the promoters of the undertaking shall there bespeak the direction for the payment of such sum into the name of the Accountant- General, and upon production of such direction at the Bank of England the money so previously paid in shall be placed to the credit of the said Accountant-General accordingly, and the receipt for the said payment be given to the party making the same in the usual way for the purpose of being filed at the Report office. 89. (a) If the promoters of the undertaking or any of their contractors Penalty on the shall, except as aforesaid, wilfully enter upon and take possession of any theuMertakine lands which shall be required to be purchased or permanently used for the entering upon purposes of the special Act, without such consent as aforesaid, or without CO nsenTbefore having made such payment for the benefit of the parties interested in the paymentof lands, or such deposit by way of security as aforesaid, the promoters of m0 ney. the undertaking shall forfeit to the party in possession of such lands the (a) See supra, s. 84. :; I i 8 Vic. c. 18. mii -i i over and above the amount of any damage done to such by reason of such entry and taking possession as aforesaid, such penalty and dai ctively to be recovered before two justices; and if the promoters of the undertaking or their contractors shall, after con- vicl ion in such penalty as aforesaid, continue in unlawful possession of any such lands, the promoters of the undertaking shall be liable to forfeil the sum of twenty-five pounds for everj daj thej or their contractors shall .so -inn as aforesaid, such penalty to be recoverable bj the party in possi of such lands, with costs, by action in any of the superior Courts : provided always, thai nothing herein contained shall be held to subjeel the promoters of the undertaking to the paymenl of any such penalties as aforesaid if they shall bond fide and withoul collusion have paid the compensation agreed or awarded to be paid in respeel of the said lands to any person whom the promoters of the undertaking may have nablj believed to be em it led thereto, or shall have deposited the same in the bank for the benefil of the parties interested in the lands, or made such deposit by way of security in respect thereof as hereinbefore men- tioned, ah bough such person may not have been legally entitled thereto. U in of 90. (a) On the trial of any action for any such penalty as aforesaid, the decision of the justices under the provision hereinbefore contained shall i - to J x ill- i- not he held conclusive as to the right of entry on any such lands by the promoters of the undertaking. 91. (n) In any case in which, according to the provisions of this or the special Act, or any Aci incorporated therewith, the promoters of the under- taking are authorised to enter upon and take possession of any lands ands - required for the purposes of the undertaking, the owner or occupier of any Bach lauds or any other person refuse to give up the possession thereof, or hinder i he promoters of the undertaking from entering upon or taking possession of the same, it shall lie lawful for the promoters of the under- taking to issue t heir warrant to the sheriff to deliver possession of the same to the pei son appointed In such warrant to receive the Same, and upon t he receipt of such warrant the sheriff shall deliver possession of any such lands accordingly, and the costs accruing by reason of the issuing and execution of such warrant, to be settled by the sheriff, shall be paid by the person refusing to give possession, and the amount of such costs shall he deducted and retained by the promoters of the undertaking from the compensation, if any, then payable by them to such party, or if no such compensation be payable to such party, or if the same be less than the amounl of such costs, then such costs, or the excess thereof beyond such compensation, if not paid on demand, shall be levied by distress, and upon application to any justice for thai purpose he shall issue his warrant accordingly. Parties] 92. (a) And he it enacted, thai ii" party shall at any time he required 1 ' to sell or convey to the promoters of the undertaking a part only of any ((/) See supra, s. 84. Lands Glauses Act, 1845. 345 house or other building or manufactory, if such party be willing and able sell part of a to sell and convey the whole thereof. And with respect to small portions of intersected land, be it enacted as follows : 93. If any lands not being situate in a town or built upon shall be so Owner.-. < >f cut through and divided by the works as to leave, either on both sides or J','!' | , ;' 111 .'^ (l on one side thereof, a less quantity of land than half a statute acre, and if insist on sale, the owner of such small parcel of land require the promoters of the under- taking to purchase the same along with the other land required for the piu-poses of the special Act, the promoters of the undertaking shall pur- chase the same accordingly, unless the owner thereof have other land adjoining to that so left into which the same can be thrown, so as to be conveniently occupied therewith ; and if such owner have any other land so adjoining, the promoters of the undertaking shall, if so required by the owner, at their own expense, throw the piece of land so left into such adjoining land, by removing the fences and levelling the sites thereof, and by soiling the same in a sufficient and workmanlike manner. 94. If any such land shall be so cut through and divided as to leave on Promoters of either side of the works a piece of land of less extent than half a statute ^u ndertaking acre, or of less value than the expense of making a bridge, culvert, or such purchase where other communication between the land so divided as the promoters of the ^ridges^ &c, undertaking are, under the provisions of this or the special Act, or any Act exceeds the incorporated therewith, compellable to make ; and if the owner of such lands have not other lands adjoining such piece of land, and require the promoters of the undertaking to make such communication, then the pro- moters of the undertaking may require such owner to sell to them such piece of land, and any dispute as to the value of such piece of land, or as to what would be the expense of making such communication, shall be ascertained as herein provided for cases of disputed compensation ; and on the occasion of ascertaining the value of the land required to be taken for the purposes of the works, the jury or the arbitrators, as the case may be, shall, if required by either party, ascertain by their verdict or award the value of any such severed piece of land, and also what would be the expense of making such communication. And with respect to copyhold lands, be it enacted as follows : 95. Every conveyance to the promoters of the undertaking of any lands Conveyance of which shall be of copyhold or customary tenure, or of the nature thereof, to b^enroUed. 8 shall be entered on the rolls of the manor of which the same shall be held or parcel; and on payment to the steward of such manor of such fees as would be due to him on the surrender of the same lands to the use of a purchaser thereof he shall make such enrolment ; and every such convey- ance, when so enrolled, shall have the like effect in respect of such copy- hold or customary lands, as if the same had been of freehold tenure, never- theless, until such lands shall have been enfranchised by virtue of the :M<; 8 Vic. e. 18. powers hereinafter contained, they shall continue subject to the same fines, rents, heriots and services as were theretofore payable and of right accustomed. Copyhold lands i i be enfranchised. 96. Within three months after the enrolmeni of the conveyance of any such copyhold or customarj Lands, or within one month after the pro- moters of the undertaking shall enter upon and make use of the same Eor the purposes of the works, whichever mall first happen, or if more than one parcel of such lands holden of the same manor shall have been tab n by them, linn within one month after the last of such parcels shall have beer bo taken or entered on by them, the promoters of the under- taking shall procure the whole of the lands holden of such manor so taken by them to l>e enfranchised, and for that purpose shall apply to the lord of the manor whereof such hinds are holden to enfranchise the same, and shall pay to him such compensation in respeel thereof as shall be upon between them and him, and if the parties fail to agree respecting the amount ot the compensation to bo paid for such enfranchisement, the same shall he determined as in other cases of disputed compensation ; and in estimating such compensation the loss in respect of the tines, heriots ami ot her services payable on death, descent, or alienation, or tiny other mal ters which would bo lost by the vesting of such copyhold or customary lands in the promoters of the undertaking, or by r the enfranchisement of the same, shall be allowed for. Lordofthe 'd7. Upon payment or tender of the compensation so agreed upon or enfranchise determined, or on deposit thereof in the hank in any of the cases herein- mentof before in that behalf provided, the lord of the manor whereof such copy- hold or customary lands shall he holden shall enfranchise such hinds, and the lands so enfranchised shall for ever thereafter he held in free ami common soccage; and in default of such enfranchisement by the lord of the manor, or if he fail to adduce a good title thereto to the satisfaction of the promoters of the undertaking, it shall he lawful for them, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore pro- vided in the case of the purchase of lands hy them, and thereupon the lands in respect of the enfranchisement v, hereof such Compensation shall have been deposited as aforesaid shall he deemed to he enfranchised, and shall he for ever thereafter held in free and common soccage. Apportionment hold renl -. 98. If any such copyhold or customary lands lie subject to any customary or other rent, and part only of the land subject to any Buch rent he required to he taken for the purposes of the special Act, the appor- tionment of such rent may be settled by agreemenl hot ween the owner of the lands and the lord of the manor on t he one part, and the promoters of the undertaking on the other part, and if such apportionment he ,i,,t 8 o settled by agreement, then the same shall he settled hy two ,,, ticesj and the enfranchisement of any copyhold or customary lands taken by virtue of this or the special Act. or the apportionment of such rents, shall not affect in other respects tiny custom by or under Lands Glauses Act, 1845. 347 which any such copyhold or customary lands not taken for such purposes shall be held ; and if any of the lands so required be released from any portion of the rents to which they were subject jointly with any other lands, such last-mentioned lands shall be charged with the remainder only of such rents ; and with reference to any such apportioned rents the lord of the manor shall have all the same rights and remedies over the lands to which such apportioned rent shall have been assigned or attributed as ho had previously over the whole of the lands subject to such rents for the whole of such rents. And with respect to any such lands being common or waste lands, be it enacted as follows : 99. The compensation in respect of the rigid in the soil of any lands Compensation- subject to any rights of common shall be paid to the lord of the manor, in lands.'where case he shall be entitled to the same, or to such party, other than the held of a manor, .,,..,. .. , , , &c, how to be Commoners, as shall be entitled to such right in the soil ; and the compen- paid _ sation in respect of all other commonable and other rights in or over such lands including therein any commonable or other rights to which the lord of the manor may be entitled other than his right in the soil of such lands, shall be determined and paid and applied in manner hereinafter provided witli respect to common lands the right in the soil of which shall belong to the Commoners ; and upon payment or deposit in the bank of the com- pensation so determined all such commonable and other rights shall cease and be extinguished. 1UU. Upon payment or tender to the lord of the manor, or such other Lord of the parry as aforesaid, of the compensation which shall have been agreed upon J£*y°y to°ths or determined in respect, of the right in the soil of any such lands, or on promoters of deposit thereof in the bank in any of the cases hereinbefore in that behalf ^receiving provided, such lord of the manor, or such other party as aforesaid, shall compensation 1 _ , tor his interest. convey such lands to the promoters of the undertaking, and such conveyance shall have the effect of vesting such lands in the promoters of the under- taking, in like manner as if such lord of the manor, or such other party as aforesaid, had been seised in fee simple of such lands at the time of executing such conveyance ; and in default of such conveyance it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of purchase of lands by them, and thereupon the lands in respect whereof such last-mentioned compensation shall have been deposited as aforesaid shall vest absolutely in the promoters of the undertaking, and they shall be entitled to immediate possession thereof, subject nevertheless to the com- monable and other rights theretofore affecting the same, until such rights shall have been extinguished by payment or deposit of the compensation for the same in manner hereinafter provided. 101. The compensation to be paid with respect to any such lands being Compensation common lands, or in the nature thereof, the right to the soil of which shall lan(ls whci . not belong to the Commoners, as well as the compensation to be paid for the hold of a man01 ' 348 8 Vic. c. 18. how to be commonable and other rights in or over common lands the right in the soil whereof shall no! belong to the Commoners, other than the compensa- tion to the lord of the manor, or other party entitled to the soil thereof, ped of his righl in the soil thereof, shall be (let i Tin inci 1 b\ agreement between the promoters of the undertaking and a eon unit tee of the parties entitled to commonable or other rights in Buch lands, to be appointed as nex1 hereinafter men! i I. A meeting of the pa ted to be convened. Meeting to appoint a committee. Committee to \ ith the promoters of ler- - Disputes to be settled as in other cases. L02. h shall be lawful for the promoters of the undertaking to convene a meeting of the parties en t it led to commonable or other righl s over or in such lands to be held in some convenienl place in the neighbourhood of the hmds tor the purpose of their appointing a committee to treai with the promoters of the undertaking for the compensation to be paid for the extinc- tion of such commonable or other rights ; and every such meeting si mil be called by public advertisement, to be inserted once ai leasl in two con- LV6 weeks in SO newspaper circulating in the county or in the respective I id in the neighbourhood in which sileh lands shall be situate, the last of such insertions being not more than fourteen nor less than seven days prior to any such meeting; and notice of such meeting shall also, not less than seven days previous to the holding thereof, be u upon the door of the parish church where such meeting is intended to be held, or if there be no such church some other place in the neigh- bourhood to which notices are usually aflixed ; and if such lands be parcel or holden of a manor, a like notice shall be given to the lord of such manor. 103. It shall be lawful for the meeting so called to appoint a com- mittee, not exceeding live in number, of the parties entitled to any such rights ; and at such meeting the decision of the majority of the persons e bitled to commonable rights present shall bind the minority and all i.i parties. 104. It shall be lawful for the committee so chosen to enter into an agreement with the promoters of the undertaking for the compensation to be paid for the extinction of such commonable and other rights and all matters relating thereto, for and on behalf of themselves and all other panics interested therein; and all such parties shall be bound by such agreement ; and it shall be lawful for such committee to receive the com- pensation so agreed to be paid, and the receipt of such committee, or any three of them, for such compensation, shall be an effectual discharge for i he same ; and such compensation, when received, shall be apportioned by the com m it tee among the several persons interested t herein, according to their respective interest, but the promoters of the undertaking shall not be bound to see to the apportionmenl or to the application of such com- pensation, nor shall they be liable for the mis-application or non-application thereof. 105. If upon such committee being appointed they shall fail to agree with the promoters of the undertaking as to the amount of the compensa- Lands Clauses Act, 1845. 349 tion to be paid as aforesaid, the same shall be determined as in other cases of disputed compensation. 106. If, upon being 1 duly convened by the promoters of the undertaking, If no committee no effectual meeting of the parties entitled to such commonable or other t^eTmorait to rights shall take place, or if, taking place, such meeting fail to appoint a be 6 ■ i -n i j j. • j v. ' ,va surveyor, committee, the amount of such compensation shall be determined by a surveyor, to be appointed by two justices, as hereinbefore provided in the case of parties who cannot be found. 107. Upon payment or tender to such committee or any three of them, Upon payment or if there shall be no such committee then upon deposit in the bank in the payXleTo^ manner provided in the like case of the compensation which shall have been Commoners ihr . ,., t t ,, • i. lands to vest, agreed upon or determined in respect ot such commonable or other rights, it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them, and thereupon the lands in respect of which such compensation shall have been so paid or deposited shall vest in the promoters of the undertaking, freed and discharged from all such commonable or other rights, and they shall be entitled to imme- diate possession thereof; and it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland, by an order to be made upon petition, to order payment of the money so deposited to a committee to be appointed as aforesaid, or to make such other order in respect thereto for the benefit of the parties interested as it shall think fit. And with respect to lands subject to mortgage, be it enacted as follows : 108. It shall be lawful for the promoters of the undertaking to purchase Power to or redeem the interest of the mortgagee of any such lands which may be £^^8. required for the purposes of the special Act, and that whether they shall previously purchased the equity of redemption of such lands or not, and whether the mortgagee thereof be entitled thereto in his own right or in trust for any other party, and whether he be in possession of such lands by virtue of such mortgage or not, and whether such mortgage affects such lands solely, or jointly with any other lands not required for the purposes of the special Act, and in order thereto the promoters of the undertaking may pay or tender to such mortgagee the principal and interest due on such mortgage, together with his costs and charges (if any) and also six months' additional interest, and thereupon such mortgagee shall immediately convey his interest in the lands comprised in such mortgage to the promoters of the undertaking, or as they shall direct, or the promoters of the under- taking may give notice in writing to such mortgagee that they will pay off the principal and interest due on such mortgage at the end of six months, computed from the day of giving such notice ; and if they shall have given any such notice or if the party entitled to the equity of redemption of any such lands shall have given six months' notice of his intention to redeem 350 S Ylr. r. IS. the same, then at the expiration of either of such notices, or at any inter- mediate period, upon paymeni of tender by the promoters of the undertaking to the mortgagee of the principal money due on such mortgage, and the inti resl which would become due at the end of six months from the time of giving either of such notices, together with his costs and expenses, if any, such mortgagee shall convey or release his interest in the lands com- prised in such mortgage to the promoters of the undertaking, or as they shall direct. Deposit of mortgage money on refusal to accept. Suva tolic paid when mortgage e cceeds the \ nine of the lands. i lepi i -it of monej when ret I on tender. 100. If in cither of the cases aforesaid, upon such paymeni or tender, any mortgagee shall fail to convey or release his interest in such mortgage as directed by the promoters of the undertaking, or if he fail to adduce a g I title thereto to their satisfaction, then it shall be lawful For the promoters of the undertaking to deposit in the bank, in the manner pro- vided by this Act in like cases, the principal and interest, together with the COStS, if any, due on such mortgage, and also, if such payment lie made before the expiration of six months' not ice as aforesaid, such furthering as would tit that time become due; and it shall be lawful for them, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them; and thereupon as well as upon such conveyance by the mortgagee, if any such be made, all the estate and interest of such mortgagee, and of all persons in trust for him, or for whom he may be a trustee, in such lands, shall vest in the promoters of the undertaking, and they shall be entitled to immediate possession thereof in case such mortgagee were himself entitled to such possession. 110. If any such mortgaged lands shall be of less value than the principal, interest and costs secured thereon, the value of such lands, or the compensation to be made by the promoters of the undertaking in respect thereof shall be settled by agreemenl between the mortgagee of such lands and the party entitled to the equity of redemption thereof on the one part, and the promoters of the undertaking on the other part, and if the parties aforesaid fail to agree respecting the amount of such value Or compensation, the same shall be determined as in other cases of disputed compensation; and the amount of such value or compensation, being so agreed upon or determined, shall be paid by the promoters of the under- taking to the mortgagee in satisfaction of his mortgage debt- so far as the same will extend, and upon payment or tender thereof the mortgagee shall convey or release all his interest iii such mortgaged hinds to the promoters of the undertaking, or as they shall direct. 111. If, upon such payment or tender as aforesaid being made, any- such mortgagee tail so to convey his interest in such mortgage or to adduce a good title thereto to the satisfaction of the promoters of the undertak ing, it shall be lawful for them to deposit the amount of such value or compen- sation in the bank, in the manner provided by this Act in like case's, and every such payment or deposit shall be accepted by the mortgagee in Lands Glauses Act, 1845. -J-51 satisfaction of his mortgage debt, so far as the same will extend, and shall be a full discharge of such mortgaged lands from all money duo thereon ; and it shall be lawful for the promoters of the undertaking, if they think lit, to execute a deed poll, dnly stamped, in the manner hereinbefore pro- vided in the case of the purchase of lands by thorn; and thereupon snch lands, as to all such estate and interest as were then vested in the mort- gagee or any person in trust for him, shall become absolutely vested in the promoters of the undertaking, and they shall be entitled to immediate possession thereof in case such mortgagee were himself entitled to such possession ; nevertheless, all rights and remedies possessed by the mort- gagee against the mortgagor, by virtue of any bond or covenant or other obligation, other than the right to such lands, shall remain in force in respect of so much of the mortgage debt as shall not have been satisfied liy such payment or deposit. 112. If a part only of any such mortgaged lands be required for the Sum to be paid purposes of the special Act, and if the part so required be of less value ^ mortgage 3 than the principal money, interest and costs secured on such lands, and lands taken, the mortgagee shall not consider the remaining part of such lands a sufficient security for the money charged thereon, or be not willing to release the part so required, then the value of such part, and also the compensation (if any) to be paid in respect of the severance thereof or otherwise, shall be settled by agreement between the mortgagee aud the party entitled to the equity of redemption of such land on the one part, and the promoters of the undertaking on the other, and if the parties aforesaid fail to agree respecting the amount of such value or compensation the same shall be determined as in other cases of disputed compensation ; and the amount of such value or compensation being so agreed upon or determined, shall be paid by the promoters of the undertaking to such mortgagee in satisfaction of his mortgage debt, so far as the same will extend ; and thereupon such mortgagee shall convey or release to them, or as they shall direct, all his interest in such mortgaged lands the value whereof shall have been so paid ; and a memorandum of what shall have been so paid shall be endorsed on the deed creating such mortgage, and shall be signed by the mortgagee; and a copy of such memorandum shall at the same time (if required) be furnished by the promoters of the undertaking at their expense, to the party entitled to the equity of redemption of the lands comprised in such mortgage deed. 113. If, upon payment or tender to any such mortgagee of the amotmt of Deposit of the value or compensation so agreed upon or determined, such mortgagee shall ""f^Voii 011 fail to convey or release to the promoters of the undertaking, or as they shall tender, direct, his interest in the lands in respect of which such compensation shall so have been paid or tendered, or if he shall fail to adduce a good title thereto to the satisfaction of the promoters of the undertaking, it shall be lawful for the promoters of the undertaking to pay the amount of such value or com- pensation into the bank, in the manner provided by this Act in the case of moneys required to be deposited in such bank, and such payment or deposit 352 8 Vic. c. 18. shall be accepted by such mortgagee in satisfaction of bis mortgage debt, une will extend, and shall be a full discbarge of the portion of the iM<>rtir;i^vil 1 •■ 1 1 1 1 1 - s 8 Vic. c. 18. promoters of the hum bhey were al bhe time ol the ex- on of sach conveyance sei ed to essed of the lands or premises thereby granted for an indefeasible estate of inherit- ance in fee simple, free from all incumbrances done or occa- d by them, or otherwise for such estate or interest :is ed i" be thereby granted, free from incum- brances done or occasioned by them; A covenant thai the grantee of sucb Lands, his heirs, successors, executors, administrators, and assigns (as the case may be) shall quietly enjoy the same against the promoters of the ander- taking, and their successors, and all other persons claiming under them, and be indemnified and saved harmless by the pro- moters of the undertaking and their successors from all incum- brances created by the promoters of the undertaking; \ covenan! for further assurance of such lands, at the expense of such grantee, his heirs, successors, executors, administrators, or assigns (as the ease may be) by the promoters of the under- taking - , or their successors, and all other persons claiming under them ; And all such grantees, and their several successors, heirs, executors, administrators ami assigns respectively, according to their respective quality or nature, and the estate or interest in such conveyance expressed to be conveyed, may, in all actions brought by them, assign breaches of covenants, as they might do if such covenants were expressly inserted in such conveyances. Land tax and 133. And he it enacted, that if the promoters of the undertaking , ;','.';.',„,',', become possessed by virtue of this or the special Act, or any Act incorpor- ated therewith, of any Lands charged with the band Tax, or liable to be assessed to the poor's rate, they shall, from time to time, until the works shall be completed ami assessed to such land tax or poor rat e, be liable to make good the deficiency in the several assessments for land tax and poor's rate hy reason of such lands having been taken or used for the purposes of t he works, and sueh deficiency shall b" computed according to the cental at which SUCh lands, with any building thereon, were valued or rand at tin' time of the passing of t he Special Act ; and on i lemaad of sueh deficiency the promoters of the undertaking, or their treasurer, shall pay all such deficiencies to the collector of the said assessments respectively; nevertheless, if at tmy time the promoters of the undertaking think fit to redeem such land fax, they may do so in accordance with bhe powers in I fat, behalf given by the Acts for t he redempl ion of t he land lax. Service oi 134. (a) And he it enacted, that any summons or notice, or any will. ,:| or other proceeding al Lawor in equity, requiring to !»■ served upon the promoters of the undertaking ma] be served by the same being Lefi at or transmiiied through the post directed to tin' principal office of the pro- moters of t he undertaking, or one of the principal offices where there shall {") Sec note to s.s. 10 and 20. Lands Clauses Ad, 1845. 350 more than one, or being given or transmitted t hrough the post directed to the secretary, or in case there be no secretary the solicitor of the said promoters. 135. And be it enacted, that if any party shall have committed Tender of any irregularity, trespass, or other wrongful proceeding in the execution of this or the special Act, or any Act incorporated therewith, or by virtue of any power or authority thereby given; and if, before action brought in respect thereof, such party make tender of sufficient amends to the party injured, such last-mentioned party shall not recover in any such action ; and if no such tender shall have been made, it shall be lawful for the defendant, by leave of the court where such action shall be pending, at any time before issue joined, to pay into court such sum of money as he shall think fit, and thereupon such proceedings shall be had as in other cases where defendants are allowed to pay money into court. And with respect to the recovery of forfeitures, penalties, and costs, be it enacted as follows : 136. Every penalty or forfeiture imposed by this or the special Act, Penalties to be or by any by-law made in pursuance thereof, the recovery of which is not recovered 3 otherwise provided for, may be recovered by summary proceeding before before two two justices ; and on complaint being made to any justice he shall issue a summons requiring [the party complained against to appear before two justices at a time and place to be named in such summons ; and every such summons shall be served on the party offending either in person or by leaving the same with some inmate at his usual place of abode ; and upon the appearance of the party complained against, or in his absence, after proof of the due service of such summons, it shall be lawful for any two justices to proceed to the hearing of the complaint, and that although no information in writing or in print shall have been exhibited before them ; and upon proof of the offence, either by the confession of the party com- plained against, or upon the oath of one credible witness or more, it shall be lawful for such justices to convict the offender, and upon such con- viction to adjudge the offender to pay the penalty of forfeiture incurred, as well as such costs attending the conviction as such justices shall think fit. 137. If, forthwith upon any such adjudication as aforesaid, the amount Penalties to of the penalty or forfeiture and of such costs as aforesaid, be not paid, !(-' s j' r ^'"' y the amount of such penalty and costs shall he levied by distress, and such justices or either of them shall issue their or his warrant of distress accordingly. 138. Where in this or the special Act, or any act. incorporated there- Distress, how with, any sum of money, whether in the nature of penalty, costs or* 01 otherwise, is directrd to be levied by distress, such sum of money shall be levied by distress and sale of the goods and chattels of the party liable to pay the same ; and the overplus arising from the sale of such «-oods and chattels, after satisfying such sum of money and the expenses 3G0 8 Vic c. 18. of the distress and sale, Bhall be returned, on goods shall have been disi rained. demand, to the party whose penalti Distress a i " - 1 the treasurer. L39. The justices by whom any such penalty or forfeiture shall be imposed may, where the application thereof is aol otherwise provided for, award imi more than one! half thereof to the informer, and shall award the remainder to the ov of the poor of the parish in which the offence shall have been committed, tu be applied in aid of the poor's rate of such parish, or if the place wherein the offence shall have been committed shall be extra-parochial, then such just ices shall direct such remainder to be applied in aid of the poor's rate of such extra- parochial place, or if there shall not be any poor's rate therein, in aid of the poor's rate Oi any adjoining parish 01 district. L40. [f any such sum shall be payable by the promoters of the under- taking and if sufficient goods of the said promol ers cannoi be found whereon to levy the same, it may, if the amount thereof do not exceed t unity pounds berecovered by distress of thegoodsof the treasurer of the said promoters and the justices aforesaid, or either of them on applical ion, shall issue their or his warrant accordingly ; but no such distress shall issue against the goods of such treasurer unless seven days' previous notice in writing, stilting the amount due, and demanding payment thereof , have been given to such treasurer or left at his residence ; and if such treasurer pay any money under such distress as aforesaid he may retain the amount so paid by him, and all costs and expenses occasioned thereby, out of any money In h.nging to the promoters of the undertaking coming into his custody or control, or he may sue them for the same. 1 II. No distress levied by virtue of this or the special A.ct, or any An incorporated therewith, shall he deemed unlawful, nor shall any party making the same be deemed a trespasser on account of any defect or want of form in the summons, conviction, warrant of distress, or other proceeding relating thereto, nor shall such party be deemed a trespasser ab initio on account of any irregularity afterwards committed by him, bui all persons aggrieved by such defect or irregularity may recover full satisfaction for the special damage in an action upon the case. Penalties to be ' '-■ N " P erson slm " '"' 'i^ 1 ' 1 '' '" tlu ' payment of any penalty or Eorwitbin forfeiture imposed by virtue of this or the special Act, or any Act b * incorporated therewith, for any offence made cognizable before a justice, unless the complaint respecting such offence shall have been made before such justice within sis months next alter the commission of such offence. ]>, li:t i 1 43. It shall be lawful for any justice to summon any person to appear , . , before him as a witness in anv matter in which such justice shall have default ■' .' jurisdiction under the provisions ol this or the special Act at a time and place mentioned in such summons, and to administer to him an oath to testify the truth in such matter; and if any person so summoned D tress not unlawful for want of t'nriu. Lands Clauses Act, 1845. 361 shall, without reasonable excuse, refuse or neglect to appear at the time and place appointed for that purpose, having been paid or tendered a reasonable sum for his expenses, or if any person appearing shall refuse to be examined upon oath or to give evidence before such justice, every such person shall forfeit a sum not exceeding five pounds for every such offence. 1-1, i. The justices before whom any person shall be convicted of any Form of offence against this or the special Act, or any Act incorporated therewith, may cause the canviction to be drawn up according to the form in the schedule C to this Act annexed. 145. No proceeding in pursuance of this or the special Act, or any Act Proceedings incorporated therewith, shall be quashed or vacated for want of form, nor qnas ii e d for shall the same be removed by certiorari or otherwise into any of the want of form. Superior Courts. 146. If aivy party shall feel aggrieved by any determination oradjudica- Parties nil. .wed .... u o c ., t ,i to appeal to tion of any justice with respect to any penalty or forfeiture under the pro- Q uarte r visions of this or the special Act, or any Act incorporated therewith, such Sessions on party may appeal to the General Quarter Sessions for the county or place in which the cause of appeal shall have arisen ; but no such appeal shall be entertained unless it be made within four months next after the making of such determination or adjudication, nor unless ten days notice in writing of such appeal, stating the nature and grounds thereof, be given to the party against whom the appeal shall be brought, nor unless the appellant forthwith after such notice enter into recognizances, with two sufficient sureties, before a justice, conditioned duly to prosecute such appeal, and to abide the order of the Court thereon. 147. At the Quarter Sessions for which such notice shall be given, the Court to make court shall proceed to hear and determine the appeal in a summary way, t££y£££f£ as or they may, if they think fit, adjourn it to the following sessions ; and reasonable, upon the hearing of such appeal the court may, if they think fit, mitigate any penalty or forfeiture, or they may confirm or quash the adjudication, and order any money paid by the appellant, or levied by distress upou his goods, to be returned to him, and may also order such further satisfaction to be made to the party injured as they may judge reasonable : and they may make such order concerning the costs, both of the adjudication and of the appeal as they may think reasonable. 148. Provided always, and be it enacted, that notwithstanding anything Receiver of the herein or in the special Act, or any Act incorporated therewith, contained, pou^ P District every penalty or forfeiture imposed by this or the special Act, or any Act to receive penal- incorporated therewith, ot by any bye-law in pursuance thereof, in respect ^thhihis of any offence which shall take place within the Metropolitan Police district. District, shall be recovered, enforced, accounted for and, except where the application thereof is otherwise specially provided for, shall lie paid to the receiver of the Metropolitan Police District, and shall be applied in the 362 8 Vit 18. Barue manner as penalties or forfeitures, other than fines upon drunken persons, or upon constables for misconduct, or for assaults upon police constables, are directed to be recovered, enforced, accounted for, paid and applied by an Act passed in the third year of the reign of Ser presenl Majesty, intituled an An I'm- regulating the Police Courts of the Metro- 2 & 3 Vic. c. 71. polis, and every order or conviction of anj of bhe police magistrates in respect el' any such forfeit lire or penalty shall be subjecl to t be like appeal, and upon bhe same terms as is provided in respecl of any order or con- viction of any of the said police magistrates by the said last-mentioned \<-\ ■ and f\i\-\ magistrate by whom any order or conviction shall have been maile shall have the same power of binding over the witnesses who shall have been examined, and such witnesses shall be entitled tojthe same allow- ance of expenses as he or they would have had or been entitled to in case il rder, conviction, and appeal had been made in pursuance of the pro- visions of the said last-mentioned Act. Copies of special Art to In; kept, and deposited, and .•ill' iu ed to bu inspected. Persons giving 1 pi. And be it enacted, that any person who upon any examination liable to upon oath under t he provisions of this or the special Act, or any Act incor- penaltiesoi unrated the re wit li, shall wilfully and corruptly give false evidence, shall be perjury. , . liable to the penalties of wilful and corrupt perjury. (a) And with respect to the provision to be made for affording access to the special Act by all parties interested, be it enacted as follows : 1.50. The Company shall, at all times after the expiration of six monl lis after the passing of the special Act, keep in their principal office of business a copy of the special Act, printed by the printers to Her .Majesty, or some of them ; and where the undertaking shall be a railway, canal, or other like undertaking, the works of which shall not be confined to one town or place, shall also within the space of such six months deposit in the office of each of the clerks of the peace of the several counties into which the works shall extend a copy of such special Act so printed as aforesaid ; and the said clerks of the peace shall receive, and they and the Company respectively shall retain, the said copies of the special Act, and shall permit all persons interested to inspect the same, and make extracts or copies t herefrom, in t he like manner, and upon t he like terms, .and under the like penaltj lor default , as is provided in I he case of certain plans and 7 Will. IV. and sections by an Act passed in the fifth year of the reign of Eer present Majesty, intituled an Act to compel clerk's of the peace for counties and other persons to take the custody of such documents as shall he directed to be deposited with them under the Standing Orders of either House of Parliament. Penalty on L51. If the Company shall fail to keep or deposit, as hereinbefore men- faUMng'tokeep tioned, any of the said copies of the special A.ct, they shall forfeit twenty -it. pounds for every such offence, and also five pounds for everj day after- wards during which such copy shall he not, so kept or deposited. (>0 The provisions relating to access to the special Act are excluded from the Land M, ; , i, i;e:.' Art, 1881, 24 & -±~> Vic. c. 188. Sees. 2s. Lands Glauses Act, 1845. 3G3 152. And bo it enacted, that this Act shall not extend to Scotland. ^xtendttt Scotland. 153 And be it enacted, that this Act may be amended or repealed by Art may be — 1...1 » i. any Act to lie passed in the present session of Parliament amended this session. SCHEDULES REFERRED TO IN THE FOREGOING ACT. SCHEDULE A. Form of Conveyance, I of in consideration of the sum of paid to me [or, as the case may be, into the Bank of England [or Bank of Ireland], in the name and with the privity of the Accountant- General of the Court of Chancery, ex parte " The promoters of the under- taking" [naming them], or to A. B. of and C. D. of two trustees appointed to receive the same], pursuant to the [here name the special Act], by the [here name the Company or other promoters of the undertaking], incorporated [or constituted] by the said Act, do hereby convey to the said Company [or other description], their successors and assigns, all [describing the premises to be conveyed], together with all ways, rights, and appurtenances thereto belonging, and all such estate, right, title, and interest in and to the same as I am or shall become seised or possessed of, or am by the said Act empowered to convey, to hold the premises to the said Company [or other description], their successors and assigns, for ever, according to the true intent and meaning of the said Act. In witness whereof I have hereunto set my hand and Seal, the day of in the year of our Lord SCHEDULE B. Form of Conveyance on Chief Rent. 1 of in consideration of the rent- charge to be paid to me, my heirs and assigns, as hereinafter mentioned by " the promoters of the undertaking " [naming them], incorporated [or constituted] by virtue of the [here name the special Act], do hereby con- vey to the said Company [or other description], their successors and assigns, all [describing the premises to be conveyed , together with all ways, rights, and appurtenances thereunto belonging, and all my estate, right, title, and interest in and to the same and every part thereof, to hold the said premises to the said Company [or other description], their successors and assigns for ever, according to the true intent and meaning of the said Act, they the said Company [or other description], their successors and assigns, yielding and paying unto me, my heirs and assigns', one clear yearly rent of by equal quarterly [or half-yearly, as agreed upon J, portions henceforth, on the [ stating the days], clear of all taxes and deductions. In witness whereof I hereunto set my hand and Seal, the day of in the year of our Lord :;nhUc nature. [_2Br,J April 1847. J Whereas it is expedient to comprise in one Act sundry provisions usually contained in Acts of Parliament authorising I he execution of undertakings of a public nature by bodies of Commissioners, trustees, or i,i her persons, not being Joint Stock Companies, and that as well for avoiding the necessity of the repeating such provisions in each of the several Acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves: be il enacted by the Queen's most Excellent Majesty, by and with the advice and consent, of (he Lords Extent el' Act. Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that this Act shall extend only to such undertakings or Commissioners as shall be authorised or constituted by : ,i,\ Act of Parliament hereafter to be passed, which shall declare that this Act shall be incorporated therewith ; and all the clauses of this Act, ;;,-,, so far as they shall be expressly varied or excepted by any such Ael, shall apply to the Commissioners constituted by such Act and to the undertaking for carrying on which such Commissioners shall be constituted, so far as the same shall be applicable thereto respectively; and such clauses, with the clauses of every other Act which shall be incorporated therewith, shall, save as aforesaid, form part of such Act, and be con- strued therewith, as forming one Act. And with respect to the construction of this Act. and any Act incor- porated therewith, be it enacted as follows: — tnterpretations -• The expression " the Special Aei " used in this Act shall beconstr 1 inthisAct: to ln( . ;m an -i Act which shall be hereafter passed, constituting a body of " The pei Lai ' ,.,.,,.■,.> i c Act." Commissioners as hereinafter defined lor the purpose o! carrying on any (a) The following sections of this Ail are those incorporated by the Land Drainage Art, L861. 24 & 25 Vic. c. 133, ss. U&71. Commissioners Clauses Act, 1847. '■'>('>'> undertaking, and with which this Act shall be incorporated ; and the word " prescribed " used in this Act, in reference to any matter herein stated, "Prescribed." shall be construed to refer to such matter as the same shall be prescribed or provided for in the special Act ; and the sentence in which such word occurs shall be construed as if, instead of the word "prescribed" the expression "prescribed for that purpose in the special Act" had been used; and the expression "the undertaking" shall mean the undertaking or "The under- works of whatever nature, which shall by the special Act be authorised to taklIlff - bo executed or carried on ; and the expression " the Commissioners" shall ". The ( 'otnmis- niean the Commissioners, trustees, undertakers, or other persons or body l ' corporate constituted by the special Act, or thereby entrusted with powers for executing the undertaking. 3. The following words and expressions, both in this and the special Interpretations Act and any Act incorporated therewith, shall have the several meanings specMAct' ° hereby assigned to them, unless there be something in the subject or the context repugnant to such construction ; (that is to say,) Words importing the singular number only shall include the Number. plural number ; and words importing the plural number only shall include the singular number. Words importing the masculine gender only shall include females. Gender. The word " person " shall include a corporation, whether aggregate "Person." or sole. The word "lands" shall extend to messuages, lands, tenements, and "Lands." hereditaments or heritages of any tenure. The word " month " shall mean calendar month. " Month." The expression "superior courts," where the matter submitted to "Superior the cognizance of the court arises in England or Ireland, shall Courts -" moan Her Majesty's Superior Courts of Record at Westminster or Dublin, as the case may recpiire, and shall include the Court of Common Pleas of the County Palatine of Lancaster and the Court of Pleas of the county of Durham, and where such matter arises in Scotland shall mean the Court of Session. The word " oath " shall include affirmation in the case of quakers "Oath." and any declaration lawfully substituted for an oath in the case of any other persons allowed by law to make a declaration instead of taking an oath. The word "county" shall include riding or other division of a County." county having a separto commission of the peace, and in Scotland stewartry, and any ward or other division of a county or stewartry having a separate sheriff, and it shall also include county of a city or county of a town. The word "justice" shall mean justice of the peace acting for the "Justice." place where the matter requiring the cognizance of tiny such justice arises ; and where any matter is authorised or required to be done by two justices, the expression "two justices" shall be "Two understood to mean two or more justices met and acting together. JllS V The word "sheriff" shall mean the sheriff depute of the county or "Sheriff." GOG 10 Vic. c. 10. ward of a county in Scotland and the Bteward depute of the Btewartry in Scotland in which any matter submitted to the isance of the sheriff arises, and shall include the substitutes of Buch sheriff depute and steward depute respectively. i.r The expression "quarter sessions" shall mean quarter Bessio defined in the special Act ; and if such expression be no! these denned, it shall mean the General or Quarter Sessions of the peace which shall be held at the place nearest to the under- taking for the count] or place in which the undertaking, or the principal office thereof, is situate, or for some division of such county having a separate commission of the peace. "Clerk." The expression "the clerk" shall mean the clerk of the Commis- sioners, and shall include the word " secretary." own." The expression " the town " shall mean the town or district named in t he special Act within which the powers of the Commissioners are to be exercised. And with respeci to citing this Act or any pan thereof, he it enacted as follows : — Short title of ••• In citing this Act in other Acts of Parliament, and in legal instru- thisAct. ments, it shall he sufficient to use the expression, "The Commissioners Clauses Act, 1847." Form in which o. For the purpose of incorporating part only of this Act with any Act portions „f this f Parliament hereafter to he passed, it shall he enough to describe the incorporated clauses of this Act with respect to tiny matter in the words introductory to with other Acts, the enactment with respect to such matter, and to enact that the clauses so described, or that this Act, with the exception of the clauses so described, shall he incorporated with such Act ; and thereupon all the clauses of tins Act so incorporated shall, save so far as they are expresshj varied or excepted by such Act. form part of such Act, and such Act shall be construe< 1 as if such clauses were set forth therein with reference to the matter to which such Act relates. Contracts. And with respect to the contracts to be entered into and the deeds to be executed by the Commissioners, be it enacted as follows : — Power to 56. The Commissioners may enter into contracts with any persons for Commissioners tlie execution of any works directed or authorised by this and the Special contracts. " Act to be done by the Commissioners, or for furnishing materials, or for any other things necessarj lor the purposes of this or the special Act, and every such contract lor the execution of tiny work shall he in writing, and shall specify the work to be done, and the materials to he furnished and the price to be paid for the same, and the time or times within which the work is to he completed, and the penalties to be suffered in cast' of non- performance thereof, and the power hereby granted to the Commissioners to enter into contracts may lawfully he exercised, as follows ; (that is to say,) Any contract which if made between private persons would he by law required to be in writing and under seal, or in Scotland by a Commissioners Clauses Act, 1847. 367 probative deed, the Commissioners may make in writing and under their common seal, if they be incorporated, or if not incorporated tinder the hands and seals, or in Scotland, under the hands of the Commissioners or any two of them, acting by the direction and on behalf of the Commissioners, and in the same manner may vary or discharge the same : Any contract which, it' made between private persons would be by law required to be in writing and signed by the parties to be charged therewith, the Commissioners may make in writing, signed by the Commissioners or any two of their number, acting by the direction and on behalf of the Commissioners, and in the same manner may vary or discharge the same : Any contract which, if made between private persons would by law be valid, although made by parol only and not reduced into writing, the Commissioners, or any two of them acting by the direction and on behalf of the Commissioners, may make by paro] only, without writing, and in the same manner may vary or dis- charge the same : And all contracts made according to the provisions herein contained, being duly executed by the persons contracting to perform the works therein comprised respectively, shall be effectual in law, and shall be binding on the Commissioners and all other parties thereto, their successors, heirs, executors or administrators as the case may be, and in case of default in the execution of any such contract, either by the Commissioners or by any other party thereto, such actions or suits may be maintained thereon, and damages and costs recovered by or against the Commissioners or the other parties failing in the execution thereof, as might have been maintained and recovered had the same contracts been made between private persons only. 57. Before any contract to the amount of £100 or npwards shall be Notice to entered into by the Commissioners, ten days' notice at the least shall con ^ rae ts to be given in some one of the newspapers circulating within the limits of the amount of the special Act, expressing the purpose of such contract, and inviting any upwards. person willing to undertake the same to make proposals for that purpose to the Commissioners, and the Commissioners shall accept the proposal which, upon a view of all the circumstances, shall appear to them to be most advantageous, and shall take security for the due and faithful performance of every such contract. 58. The Commissioners may compound with any party who has entered Commissioners into any such contract, or against whom any action or suit has been forbreatfurf 1 brought for any penalty contained in any such contract, or in any bond contract. or other security for the performance thereof, or on account of any breach or non-performance of any such contract, bond or security for such sums of money or other recompense as the Commissioners may think proper. 59. Where by the special Act or any Act incorporated therewith the Astothe Commissioners arc authorised or required to sell or convey any lands f^uds by^he^ vested in them, and no other mode of conveyance is provided, they may Commissioners. :;<;s 10 Vic. c. 16. Receipt under Seal to 1"' a sufficient dis- cha convey such lands, or such interest as the Commissioners have therein by deed under the common seal of the Commissioners if they be a corpora- tion, or if ii< ii a corporation by deed executed by the Commissioners, or any two of them acting by the authority of and on behalf of the Commissioners ; and a deed so executed, followed as to lands in Scotland by infeftment duly recorded, shall be effectual to vest the lands comprised therein or such interest as the Commissioners have therein in the grantee or other person in whom the same shall be so conveyed; and a receipt under such Common Seal, or under the hands of two of the Commissioners acting as afoi shall beasufficent discharge to the purchaser of any such lands for the purchase-money in such receipt expressed to be received. Ami with respect to the liabilities of the Commissioners, and to legal proceedings, proceedings by or against the Commissioners, be it enacted as follows: Commissioners not to be per- sonally liable for act - the capacity '>t' aCommissioner. Commissioners to i"' indem- ii ifte i for Act.-. it in t tie execution of their office. 00. No Commissioner, by being party to or executing in his capacity of Commissioner any contract or other instrument on behalf of the Commis- sioners, or otherwise lawfully executing any of the powers given to the Commissioners, shall be subject to be sued or prosecuted, either indi- vidually or collectively, by any person whomsoever: and the bodies or goods or lands of the several Commissioners shall not be liable to execution of any legal process by reason of any contract or other instrument so entered into, signed, or executed by them, or by reason of any other lawful Act done by them, in the execution of any of their powers as Commissioners; and the Commissioners respectively, their heirs, executors, and administrators, shall be indemnified out of the rates and other moneys coming to the hands of the Commissioners by virtue of this and the special Act for all payments made or liability incurred in respect of any acts done by them, and for all losses, costs, and damages which they may incur in the execution of the powers granted to them. Actions or suits t'> lie brought in the name of any two C mis- sioners or their clerk. Gl. In all actions and suits in respect of any matter or thing relating to the execution of this or the special Act, to be brought by or .against the Commissioners, it shall be sufficient, where such Commissioners are not a body corporate, to state the names of any two of the Commissioners, or the name of their clerk, as the party, plaintiff or defendant, representing the Commissioners in any such action or suit, and no such action or suit shall abate or be discontinued, or recpiired to be transferred, by reason of the death of any such Commissioner, or by his ceasing to be a Commis- sioner, or by the death, suspension, or removal of such clerk. Executions to 62. Execution upon every judgment or decree against the Commis- be levied on the s ; ners in any such action or suit shall be levied on the goods, chattels, or toCommS personal effects belonging to the Commissioners by virtue of their office, sionersby and shall not in anv manner extend to charge or make liable the persons virtue <>t their J , . ° . . . office only. or private lands or goods ot any oi the Commissioners, or the heirs, executors, or administrators of any of them, Commissioners Clauses Act, 1847. 3G9 63. Every Commissioner or clerk in whose name any such legal pro- Coma ceeding shall be carried on, either as plaintiff or defendant, on behalf of ^ the Commissioners, shall be reimbursed out of the moneys which shall damag b, &c. come into the hands of the treasurer of the Commissioners by virtue of his office, all damages, costs, charges and expenses to which any such Commis- sioner or clerk may be put, or with which he may become chargeable, by reason of being so made plaintiff or defendant. 64. The Commissioners may prefer a bill of indictment against any How indict- pcrson who shall steal or wilfully injure any property or thing belonging ^.efei to the Commissioners or under their management, or institute any other proceeding which may appear bo them necessary for the protection of such property, and in every such case it shall be sufficient to state generally the property or thing in respect of which such proceeding shall have been taken to be the property of the Commissioners as they shall be described in the special Act, without naming the individual Commissioners. And with respect to the appointment and accountability of the officers Officers. of the Commissioners, be it enacted as follows : — 65. The Commissioners may from time to time appoint and employ a Power to Corn- treasurer, clerk, collector, assessor and all such other officers to assist in missioners to ., . „ , . appoint clerk t lie execution ot this and the special Act as they shall think necessary and and other proper, and from time to time remove any of such officers, and appoint r^o^'them others in the room of such as shall be so removed, or as may die, resign, or from time to discontinue their offices, .and may, out of the moneys to be raised for the tmU '° purposes of this and the special Act, pay such salaries and allowances to the said officers respectively as the Commissioners shall think reasonable. 66. The same person shall not be appointed to the office both of clerk Offices of clerk and treasurer; and if any person being the clerk, or the partner of such anrt tl ' easmer , , . • ,. . »!,,«,. not to be held clerk, or in the service ot such clerk or oi his partner, accept the office of by the same treasurer, or if any person being the treasurer, or the partner of such P erson - treasurer, or in the service of such treasurer or of his partner, accept the office of clerk, he shall forfeit the sum of one hundred pounds, and any person may sue for such penalty by action of debt or on the case in any of the superior courts, and shall on recovery thereof be entitled to full costs of suit. 67. Every officer employed by the Commissioners who shall exact or Officer taking accept on account of anything done by virtue of his office, or in relation to f ? es ot ^ er tlmn J ° J those allowed to the matters to be done under this or the special Act, any fee or reward lose his office, whatsoever other than the salary or allowances allowed by the Commis- and forfcit £5 °- sioncrs, or w'ho shall be in anywise concerned or interested in any bargain or contract made by the Commissioners, shall be incapable of being after- wards employed by the Commissioners and shall forfeit the sum of fifty pounds, and any person may sue for such penalty by action of debt or on the case in any of the Superior Courts, and shall on recovery thereof bo entitled to full costs of suit. 68. Before any person, whether treasurer, collector or other officer, Security to be 15 I? 370 10 Fie. c. 16. ( Ifficers to lire, lllll. taken from all intrusted by the Commissioners with the custody or control of moneys by , lvilli virtue of bis office, shall enter upon such office, the Commissioners shall take sufficient security from him for bhe faithful execution thereof. irstopay 69. Every collector appointed or employed by the Commissioners by virtue of this or the special A.c( bo collecl any rates shall, within seven days to the days after be shall have received any moneys cm accounl of any such rates, '• ' , , ',■,',, • • i • ],:i\ over the same to the treasurer oi the uommissioners to their account, and the receipl of such treasurer for the moneys so paid shall be a sufficienl discharge fco the collector, and every such collector shall, in such time and in such manner as the Commissioners direct, deliver to them true and perfeel accounts in writing under his hand of all moneys received by him ami of all moneys paid by him to the said treasurer by virtue of this or the special Act, and also a list of the names of all persons who have neglected or refused to pay any rati' of money owing by them, with a statement of the moneys due from them respectively. 70. Every collector and other officer appointed or employed by the Commissioners by virtue of this or the special Act, shall from time to time, when required by the Commissioners, make out and deliver to them, or to any person appointed by them for that purpose, a true and perfect account in writing under his hand of all moneys received by him on behalf of the Commissioners, and such account shall state how and to whom and for what purpose such moneys have been disposed of, and together with such account such officer shall deliver the vouchers and receipts for such payments; and every such officer shall pay to the Commissioners, or to any person appointed by them to receive the same, all moneys which shall appear to be owing from him upon the balance of such accounts. 71. If any such collector or other officer fail to render such accounts as aforesaid, or to produce .and deliver up all the vouchers and receipts relating to the same in his possession or power, or to pay the balance thereof when thereunto required, or if for live days after being theraunto required he fail to deliver up to the Commissioners, or to any person appointed by them to receive the same, all papers and writings, property, effects, matters and things, in his possession or power, relating to the execution of this or the special Act, or any Act incorporated therewith, or belonging to the Commissioners, then, on complaint theroof being made to D in lice or to the sheriff, such justice or sheriff shall summon such officer to appear before two or more justices, or before such sheriff, according as the summons may have been issued by a justice or by the sheriff, at a time and place to beset forth in such summons, fco answer such charge ; and upon I he appearance of such officer, or upon proof that such summons was personally served upon him, or left at his last known place of abode, - n . • 1 1 justice or sheriff may hear and determine the matter in a summary w a;, , and may adjust and declare i he balance owing by such officer ; and if it appear, either upon confession of such officer, or upon evidence, or upon inspection of the account, that any moneys of the Commissioners are in the hands of such officer, or owing by him to the Commissioners, such justices mary recovery aprainst parties failing to aCC Mint. Commissioners Clauses Act, 1847. 371 or .sheriff may order such officer fco pay the same, and if he fail to pay the amount it shall lie lawful for such justices or sheriff to granl a warranl to levy the same by distress, or by poinding and sale, or in default thereof to commit the offender to gaol, there to remain without bail for a period not exceeding three months, unless the same be sooner paid. 72. If any stieh officer summoned as aforesaid refuse to make Buch Officers iinl in writing, or to produce and deliver to the justices or sheriff the mnKo nut several vouchers and receipts relating thereto, or to deliver up any books, account ami papers, or writings, property, effects, matters, or things, in his possession documents &c or power, belonging to the Commissioners, such justice or sheriff may may be commit such offender to gaol, there to arrange until lie shall have delivered prison! £ up all the vouchers and receipts in his possession or power relating to such accounts, and all the books, papers, writings, property, effects, matters, and things, in his possession or power, belonging to the Commissioners. 73. Provided always, that if any Commissioner, or other person acting Where officer on behalf of the Commissioners, shall make oatli that he has good reason a1)0Ut *? ° abscond, a to believe, upon grounds to be stated in his deposition, and that he does warrant may be believe that it is the intention of such officer as aforesaid to abscond, the flTs^m stance. justice or the sheriff before whom the complaint is made may, instead of issuing his summons, issue his warrant for bringing such officer before such two justices as aforesaid if the warrant be issued by a justice, or before such sheriff if the warrant be issued by him ; but no person executing such warrant shall keep such officer in custody longer than twenty-four hours without bringing him before some justice or the sheriff, acci irding as he may be summoned before the one or the other ; and the justice or sheriff before whom such officer may be brought may either discharge such officer, if he think there is no sufficient ground for his detention, or or order such officer to be detained in custody so as to be brought before two justices at a time and place to be named in such order, unless such officer give bail to the satisfaction of such justice for his appearance before such justices to answer the complaint of the Commissioners. 74. No such proceeding against or dealing with any such officer as Proceedings aforesaid shall deprive the Commissioners of any remedy which they might a Sj^st oncers otherwise have against any surety of such officer. sureties. And with respect to the mortgages to be executed by the Commissioners, be it enacted as follows : — ■ 75. Every mortgage or assignation in security of rates or other Mortgages. property authorised to be made under the provisions of this or the special F j. Act shall be by deed duly stamped, in which the consideration shall be duly mortgages. stated; and every such deed shall be under the common seal of the Commissioners if they be a body corporate, or if they be not a body corporate, shall be executed by the Commissioners or any five of them, and may ln- according to the form in the schedule (B) to this Act annexed or to the like effeci ; and the respective mortgagees or assignees in security shall be entitled one with another to their respective proportions of the rates and B B 2 372 10 Vic. c. 16. l; ig ister of mortga be kopl an 1 to be open 1 ' ' : I ill. ;, sessmentsor other property comprised in Buch mortgages or assignations ctively, according to the respective sums in such mortgages or ations mentioned to be advanced by .such mortgagees or assi| respectively, and to be repaid the sums so advanced, with interest, withoui uny preference one above another by reason of the priority of advancing such moneys, or of the dates of uny snch mortgages or assignations respectively. 76. A register of mo or assignations in security shall be kepi by ,1, ( . clerk i" ill" Commissioners, and where by the special Act the Commissioners are authorised or required to raise iarati urns on separate rates or other property, a separate register shall be kepi for each class of mortgage or assignations in security, and within fourteen days after the date of :m\ mortgage or assignation in security an entry or memorial of the Mlim i ir] . ;m ,i ,| ;1 |,. thereof , and of the names of the panics thereto, with their proper additions, shall be made in the proper register, and every such register maj he perused at all reasonable times by any person interested in any such mortgage or assignation in security without fee or reward. 77. Any person entitled to any such mortgage and assignation, may transfer his righl and interest therein to any other person ; and every such transfer shall he by deed duly stamped, wherein the consideration shall he trulj stated; and every such transfer may be according to the form in the schedule ((') to this Act annexed, or to the like effect. 78. Within thirty days after the date of every such transfer, if executed within the United Kingdom, or otherwise within thirty days after the arrival thereof in the United Kingdom, it shall he produced to the Clerk to the Commissioners, and thereupon such clerk shall cause an entry or memorial thereof to he made, in the same manner as in the case of the original mortgage or assignation insecurity, and for such entry the clerk may demand a sum not exceeding live shillings; and after such entry, e\ ery such t ransfer shall entitle the transferee, his executors, administrators or assigns to the full benefil of the original mortgage or assignation in security, and the principal and interest thereby secured; and such trans- feree may in like manner assign or transfer the same again, toties quoties'; and it shall not he in the power of any person, except the person to whom tin- same shall have been last transferred, his executors, administrators or assigns, to make void, release or discharge the mortgage or assignation so transferred, or any money thereby secured. Interest on 79- Unless otherwise provided by any mortgage or assignation in security ea to be ,),,. [uteres! of the money borrowed thereupon, shall be paid half-yearly to paid half- , . . .. . , ,. yearly. the several parties entitled thereto. 80. If the Commissioners can at any t ime horrow or take up any sum of money at a lower rate of interest than any securities given by them and then be in force shall hear, they may horrow such sum tit such lower rate as aforesaid, in order to pay oil' and discharge the securities hearing such hi'jher rate of interest, and may charge the rates and other property which they ma, he authorised to mortgage or assign in security under this Transfers of mortgages. Register of i ransfers to h kept. Power to borrow money at a lower rate pay off. securi- i higher rate. ('oiiuiiisxinli'Ts ClansfS Art, 1^17. :',7 : ! or the special Act, or any pari thereof, with payment of such sum and such lower rate of interest, in sneli manner ami subject to stieh regulations as are herein contained, with respect to other moneys borrowed on mort- gage or assignation in security. 81. The Commissioners may, if they think proper, fix a period for the Repayment of repayment, of till principal moneys borrowed under the provisions of this or J 1 ^,'.','!, , ,.,, .,, „ the special Act, with the interest thereof, and in such case the Comniis- time and place sioners shall cause such period to be inserted in the mortgage deed or s assignation in security ; and upon the expiration of such period, the prin- cipal sum, together with the arrears of interest thereon, shall, on demand, be paid to the party entitled to receive such principal money and interest, audit' no other place of payment be inserted in such deed, such principal and interest shall be payable at the office of the Commissioners. S2. If no time be fixed in the mortgage deed or assignation in security Repayment of for the repayment of the money so borrowed, the party entitled to receive ^^^^ when such money may, at the expiration, or at any time after the expiration, of no time or twelve months from the date of such deed, demand payment of the prin- agrradupon? n cipal money thereby secured with all arrears of interest, upon giving six months previous notice for that purpose, and in the like case the Commis- sioners may at anytime payoff the money borrowed, on giving the like notice; and every such notice shall be in writing or print, or both, and if given by a mortgagee or creditor, shall be delivered to the clerk, or left at the office of the Commissioners, and if given by the Commissioners, shall be given either personally to such mortgagee or creditor, or left at his residence, or if such mortgagee or creditor be unknown to the Commis- sioners, or cannot be found after diligent inquiry, such notice shall be given by advertisement in the London Gazette if the office of the Commis- sioners is in England, the Edinburgh Gazette if it is in Scotland, or in the Dublin Gazette if it is in Ireland. 83. If the Commissioners shall have given notice of their intention to interest to pay off any such mortgage or assignation i n security at a time when the c . ease ° D expira- r J •> ° ° ° J tion ot notice to same may lawfully be paid off by them, then at the expiration of such payoff a mort- notice, all further interest shall cease to bo payable thereon, unless, on ffa ° e c jt " demand of payment made pursuant to such notice, or at any time there- after, the Commissioners fail to pay the principal and interest due at the expiration of such notice on such mortgage or assignation in security. 84. In order to discharge the principal money borrowed as aforesaid on Moneys security of any of the rates, the Commissioners shall every year appro- borrowed on priate and set apart out of such rates respectively, a sum equal to the ratesto be paid prescribed part, and if no part be prescribed, one-twentieth pari of the off . ma limited 1 x period. sums so lion-owed respectively, as a sinking fund to be applied m paying oft the respective principal moneys so borrowed, and shall, from time to time, cause such sinking fund to be invested in the purchase of Exchequer bills or other Government securities, or, in Scotland, deposited in one of the banks there, incorporated by Act of Parliament or Royal Charter, and to be 37 I lO Vic. r. n;. I i .1; I "ages. Arrears of ased by accumulation in the way of compound interest or otherwise, until the same respectively shall be of sufficient amount to pay off the principal debts respectively to which such sinking fund shall be applicable, te part thereof which the Commissioners shall think ought then to be paid off, at which time the same shall be so applied in paying off the same in manner hereinafter ment ioned. 85. Whenever the Commissioners shall be enabled to pay off one or more of the mortgages or assignations in security which shall be then payable, and shall not be able to pay off the whole of the same class, they shall decide the order in which chey shall be paid off by lot among the class to which such one or more of the mortgages or assignations in security belong, and shall cause a notice, signed by their clerk, to be given to the persons entitled to the money to be paid off, pursuant to such lot, and such notice shall express the principal sum proposed to be paid off, and that the same will be paid, together with the interest due thereon, at a place to be specified, at the expiration of six months from the date of giving such nut ice. 86. Where by the special Act the mortgagees or assignees in security of a rece r. Arrears of pal alld interest. ' ',' of the Commissioners are empowered to enforce the payment of the arrears by appointment of interest, or the arrears of principal and interest, due to them, by the appoint n lent of a receiver, then, if within thirty days after t lie interest accru- ing upon any such mortgage or assignation in security lias become payable, and after demand thereof in writing, the same he not paid, the mortgagee or assignee in security may. without prejudice to his right to sue for the interest so in arrear in any of t he Superior Courts, require the appoint ment of a receiver, by an application to be made as hereinafter provided : and if within six months after the principal money owing upon any sin h mortgage or assignation in security has become payable, and after demand thereof in writing, the same be not paid, together with all interest due in respect thereof, the mortgagee or assignee in security, without prejudice to his right to sue tor such prima' pa I money, toget her with all arrears of interest, in of the Superior Courts, may. if his debt amount to the prescribed sum alone, or, if his debt do not amount to the prescribed sum, he may, iii conjunction with other mortgagees or assignees in security whose debts iii arrear. after demand as a lore-aid. together with his. amount to t he prescribed sum. require I he appointment of a receiver, by an application to be made as hereinafter provided. the .11 river. S7. Every application for a receiver in the cases aforesaid shall in England or Ireland be made to two justices, and in Scotland to the sheriff, and on any such application such justices or sheriff may, by order in writing, after hearing the parties, appoint some person to receive the i or a competent part- of the rates or sums liable to the payment of such interest, or such principal and interest, as the case may be, until such t, or until such principal and interest, as the case maj be, ti <■> ami mum- of monej as aforesaid, or such pari thereof as i rdered by fche said justices or sheriff, shall be paid to the person bo to be appoint! d, and the mono] so paid shall be so much money received by or to the a the party to whom such interest, or such principal and Interest, as thi may be, shall be then due, and on whose behalf such receiver shall have been appointed, and after such interest and costs, or such principal, interesl and costs, have been so received, the power of such receiver shall cease. 88. The hooks of account of the Commissioners shall be open at all Accounl books reasonable times to the inspects E the respective mortgagees or assignees the in security of the Commissioners, with liberty to take extracts therefrom, ofmortga wit hunt fee or reward. And with respect to the accounts to be kept by the Commissioners, be Account.-, it enacted as follows : 89. The Commissioners shall cause books to be provided and kept, and Accounts to be true and regular accounts to be entered therein of all sums of money n , C ,!| , ,'i'i sD u received and paid for and on account of this and the special Act, and of ments, which 1 . , shall 1 i the several purposes for which such sums ot money shall have been received for inspection. and paid, which books shall at all reasonable times be open to the inspec- tion of any of the Commissioners, and any mortgagee, assignee, in security or other creditor of the Commissioners, wit hunt fee or reward, and the Commissioners and persons aforesaid, or any of them, may take copies of or extract- from the said books, without paying anything for the same: penalty for and any clerk or other person having the custody of the said books who rcfusal - shall not. on any reasonable demand of any Commissioner, mortgagee or creditor as aforesaid, permit him to inspect the said books, or to take such copies "i- extracts as aforesaid, shall be liable to a penalty of twenty pounds for every such offence. 90. The Commissioners shall cause their accounts to be balanced in Statemeni of each year to a period not less than one, month before the annual general prepared, and meeting at which thev are to be produced, as after mentioned; and'-' fourteendaysnt the least before such meeting the Commissioners shall cause a full and true statement and account to be drawn out of the amount of all rates or assessments made, and of all contracts entered into, and of till moneys received and expended by virtue of this or the special Act during the preceding year, and also of all debts then owing by the Commissioners, ami they shall cause such statement and account to be printed, and shall allow the same to remain for inspection at the office of the Commissioners; and every creditor on the rates and assessments by this or the special Act, or any Act incorporated therewith, authorised to be made, and every person paying any such rate or assessment, or any person acting on behalf of any such creditor or ratepayer, may at all reasonable I imes inspeel such statement and account, and compare t he same with the books and docu- ments relating thereto in the possession of the < 'oimnissioners ; and th< . clerk shall on demand furnish a printed copy of the said statement and-l^?™^ account to every such creditor and ratepayer, without tee : and fourteen da} s 376 10 Vic. c. 16. * Sic. at the leasl before* bo the meeting for examining and settling such account the Commissioners shall give public notice of such intended meeting, tating in such notice that the Baid statement and account are printed, and lie at the office of the Commissioners ready for the inspection of the creditors and ratepaj ers or other parties intere mtatobe 91. The accounts of the Commissioners, bo balanced as aforesaid, . ' together with the said statemenl and account, shall be produced at the bing. annual meeting of the Commissioners, or at some adjournment thereof, at which meeting all creditors and ratepayers and other persons interested may be present, and the accounts shall be t ben finally examined and settled by t he ( iommissioners, and it' the same be found just and true they shall be allowed by the Commissioners and certified accordingly under the hand of the chairman of such meeting; and after Buch accounts have been so allowed and signed by such chairman and also by the auditors, as herein- after provided, the same shall be final in regard to till persons whomsoever, unless an appeal be prosecuted against such accounts as hereinafter provided. Auditors to be appointed. Qualifical ion el' auditors. 92. Except in the cases where by the special Act provision is made for the appointment of a permanent auditor, and such auditor shall have been appointed .accordingly, the ratepayers present at the said annual meeting may appoint two or more persons, not being Commissioners, to be auditors of the accounts of the Commissioners: and if no other person present at such meeting propose the names of two persons to be appointed auditors li\ Mich meeting, it shall he the duty of the chairman of the meeting to propose the names of two persons to he so appointed, and t he persons so to he appointed auditors shall have the like qualification and shall he subject to the like disqualification or disability as the Commissioners, and before entering on their office they shall make and sign before a justice or the sheriff a solemn declaration of the like purport ami effect to that, hereby required to he signed by the Commissioners; ami the auditors soappointed shall receive a reasonable remuneration for their time and trouble, not exceeding two guineas each Eor everj day they shall be fully employed on such audit, and all such expenses as they shal be put tint i • attending the auditing of the said accounts, and if anj dispute arise as to the amount of the remuneration and expenses to be paid to such auditors, it shall in England or Ireland be settled bj two justices, and in Scotland by the sheriff. 93. The auditors so nominated, or the said permanent auditor, if any shall have keen appointed as aforesaid, shall attend its soon as conveniently may be after the said annual meeting at the office of the Commissioners, or at .'''., some other convenient place to be appointed by the Commissioners, and think tit. from time to time shall, in the presence of the clerk to the Commissioners, if he desire to be present, proceed to audit the accounts of tin' Commis- sioners for the year preceding the said annual meeting; and the Com- missioners shall by their clerk produce and lay before such auditors the accounts so allowed and certified us aforesaid] together with the statement Commissioners Clauses Act, 1847. o77 and account hereinbefore mentioned; accompanied with proper vouchers in Bnpporj of tin' same, ami all hooks, papers, and writings in their custody or power relating thereto ; and any person interested in the said account, either as a creditor of the Commissioners or as a ratepayer, may ho present at the audit of the said account, by himself or his agent, and may make any objection to any pari of BUCh account ; and if I ho said account s he found con-ret such auditors shall Bigll the same in token of their allowance thereof, hut if sue 1 1 a 1 1 d it ors t h i n k there is just cause to disapprove of any pari of the said accounts, they or any other person interested in the said accounts as aforesaid may appeal against any such parts of the said accounts as shall be so disapproved of to one of the two next Quarter Sessions in England or Ireland, and to t lie sheriff in Scotland, notice in writing of such appeal being given to the clerk of the Commissioners fourteen days at the least before the hearing of such appeal. 94. Upon the hearing of any such appeal the justices or the sheriff The Court may may make such order as they or he- think tit respecting the payment of the ^'J',,' . I ,',';l,"" ' t t ' costs of the appellant out of the moneys coming to the hands of the Com- the appeal. missioners under the- special Act or otherwise, as they or he think fit, and such order shall be final. 95. The Commissioners shall every year cause an annual account in Annual account abstract to be prepared, showing the total receipt and expenditure of all to be made up ,.,,.,, . , „ . . . ... . i . , i . , and transmitted tunas levied by virtue ot tins and the special Act, and any Act incorporated to the clerk of therewith for the voir ending on the day down to which their accounts ''"' l' eilt ', c in J England or snail hi\e Keen made up for the said annual meeting, or some other con- Ireland, or to venienl day in each year, under the several distinct heads of receipt and J.i'^.^'i'iJ'' 1 expenditure, with a statement of the balance of such account, duly audited Scotland, and and certified by the chairman of the Commissioners, and also by the iLpecSon* auditors thereof, and shall, if the undertaking is situated in England or Ire! hi I, s md a c >py of the said account free of charge to the clerk of the peace for the county where the undertaking is situate, and if the under- taking is situated in Scotland, shall send such copy to the sheriff clerk of such county on or before the Thirty-first day of .January then next or within one month after the same has been duly audited, which account shall be open to the inspection of the public at all reasonable hours, on payment of tic sum of one shilling for every such inspection; and if the Commissioners shall omit to prepare and transmit such account as afore- said, they shall be liable for every such omission to a penalty of twenty pounds. And with respect to giving notices and orders, be it enacted as follows: x,, ti 99. Any summons or notice, or any writ or other proceeding at law or Servici in equity, requiring to be a srved upon the Commissioners, may be served bv ","' "''"''. " I "" 1 ' • -i ommissioners. the same being left a' or sent through th • p ist-office, direct id to the Com- . at ill lir principal office, or one of their principal offices where there shall be more than one, or bj being given personally to the clerk, or in ease there be no clerk, then by being given to any one Commissioner. 378 10 Vic c. 1G. Notices byad- LOO. All notices required by this or the special An, or any Act incor- vertisement. pora ted therewith, bo be given by advertisement, shall be advertised in the prescribed newspaper, or if no newspaper be prescribed, or if the prescribed newspaper cease to be published, in a newspaper circulating in the distrid within which the undertaking shall be situated. Authentication 101. Every order, summons, notice or other such document requiring of notices and authentication by the Commissioners shall be sufficiently authenticated it' orders. . • .... signed by two Commissioners, or by the clerk of the Commissioners, and it need not he under the common seal of the Commissioners, although they be incorporated, and the same may he in writing or in print, or partly in writing and partly in print. SCHEDULE (B.) s. 75. Form of Mortgage. BY virtue of [hero name the Special Act], wo [here name the corpora- tion it' the Commissioners be incorporated, or it not incorporated, five of the Commissioners], appointed in pursuance of the said Act, in considera- tion of the sum of paid to the treasurer to the said Com- missioners by A. B., of for the purposes of the said Act , do grant and assign unto the said A. 13., his executors, administrators and assigns, such proportion of the rates, rents, profits and other moneys arising or accruing by virtue of the said Act from [here describe the rates or other property proposed to be mortgaged] as the said sum of doth or shall bear to the whole sum which is or shall be borrowed uj)on the credit of the said rates, rents, profits, or moneys to hold to the said .1. /'., his executors, administrators and assigns, from this day until the said sum of with interest at per centum per annum for the same, shall be fully paid and satisfied (the principal sum to be repaid at the end of years from the date hereof [ in case any period be agreed upon for that purpose]). Given under our cor- corporate seal or in witness whereof we have hereunto set our hands and seals, or, if the deeil be granted in Scotland, insert the testing clause required by the law of Scotland, as the case may be . this day of One thousand eight, hundred and . SCHEDULE (C.) s. 77. Form of Transfer of Mortgage. I, A. li, of in consideration of the sum of paid to me by G. /'•, of do hereby transfer to the said C. L>., his executors, administrators and assigns, a certain mortgage [or, if Sewers Acts Amendment. : >7i> the deed be granted in Scotland, a certain assignation in security , number made by "The Commissioners for executing the ' here name bhe special Act ] to bearing date the dux of for securing the sum of and interest or, if such transfer bo by indorsement, the within security , and all my right, estate and interest in and to the money thereby secured, and in ,-md to the rates, rents, profits or other moneys thereby assigned. In witness whereof I have hereunto set my hand and seal [or, if the deed be granted in Scotland, insert the testing clause required by the law of Scotland], this day of One thousand eight hundred and . 12 & 13 VIC. c. 50. An Act for further amending the laics relating to Sewers. [28(/i July, 1849] W^HEREAS considerable inconvenience and expense are found to arise Erom the inefficient state of the laws relating to sewers, and it is expedient that the same should be amended, and that further provision should be made for the execution of the powers vested in Commissioners of Sewers : And whereas it is expedient that certain duties with respect to the super. intendence, maintenance and repairs of the sewers within the respective Commissions of Sewers in England should be discharged by the occupiers of sewable lands within each Commission respectively without fee or reward : And whereas it is also expedient that further provision should be made for the making and enforcing the due payment of sewers rates duly assessed : Be it therefore enacted by the Queen's most Excellent Majesty, l>\ and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament; assembled, and by the authority of PowertoCon the same, that it shall be lawful for the Commissioners acting in the se^rstopar- tition of any Commission of Sewers in England, at a Court specially tition districts to beholden fur such purpose, and whereof notice shall be given in the districts! in inner prescribed by the ninth section of an Act passed in the third and fourth yearsof the reign of his late Majesty King- William the Fourth, :i -v IWill, iv. intituled, an Act to amend the laws relating to Sewers, from time to time ' ' to partition the several districts within their respective Commissions into such sub-districts as may appear to them most convenient for the purposes of this Act, and to fix and specify the boundaries of such suh-divisions respectively, and also to unite any separate districts or sub-districts within ; heir respect ive < lommissions into one or more dist ricts, and also from time to time as to them shall seem expedient, to re-arrange, adjust and partition such districts and suh-dist ricts respectively. '1. And hi' it enact ed, that it shall he lawful for I he said ( 'inumissiuners. Power to Com- ,. , .... . missioners to alter every such partition, anion or rearrangement oi districts or sub- makeasepa- districts as aforessid, from time to time as to the -siid Commissioners shall rate rate for each district< 380 12 & 13 Vic. c. 50. Power ; tiers to appoint dyke- ree\ es for districts and sub-districts. Qnalific dyke-rei Pi rsons appointed dyke- com- pelled i" sen e ofiice without fee or reward. Penalty on dyke-reeves refusing to serve. Power to Com- : u rs to ■ lines not exi I0». seem must expedient, to make a separate and distinct rate for each and every district or sul>-district now existing or which shall be hereafter con- stituted under the provisions of this present Act. such rate, when collected, to be applied within each such district or sub-dist rict to and for t lie several purposes to which the same may he lawfully applied under the authority of an\ of the Acts relating to sewers or of this A.ct. 3. Ami lie it enacted, that it shall be lawful for the said Commissioners from time tu time to appoint cue or more competent person or persons, being an occupier of sewable lands within their respective Commissions, and qualified as hereinafter mentioned, to act as dyke-reeve within each of such sub-districts as aforesaid, and also within each of such districts as are now existing or shall be hereafter constituted under the provisions of this present Act or the hereinbefore mentioned Act, and which shall not be partitioned in manner aforesaid, and to assign and prescribe the duties and authorities of such dyke-reeve, and the time, not exceeding five years, during which he shall perform and exercise the same respectively. 4. And be it enacted, that every occupier of not less than ten acres of sewable lands, and being of full age and sound mind, shall be qualified and liable to be appointed a dyke-reeve for the district or sub-district in which such lands shall be situate ; and the said Commissioners shall from time to time cause a full and true list to be prepared and kept of all the persons so qualified and liable to serve the office of dyke-reeve for the several districts and sub-districts within their respective Commissions. 5. And be it enacted, that, it shall becompulsory upon every such person who shall be appointed by the Commissioners to serve the office of dyke- reeve for any such district iir sub-district as aforesaid, either personally or by a deputy (approved by the Commissioners), to accept such office, and to perform and discharge the duties thereof, without fee or reward; and if any person who shall be appointed by the Commissioners to serve the ofiice of dyke-reeve shall, after due notice thereof in writing, refuse or neglect to take upon himself the office of dyke-reeve, or to provide a deputy to be approved as aforesaid, he shall on conviction before the said Commissioners forfeit any sum not exceeding twenty pounds, unless he can show good and sufficienct cause to the said Commissioners why he should net be called upon to serve the said otlice : Provided always, that every deputy so approved of and appointed shall have the same powers and authorities, and be subject to the discharge of the same duty as any dyke-reeve appointed under the authority of this Act. 6. And be it enacted, that it shall be lawful for the said Commissioners to impose any fine not exceeding forty shillings, upon the presentment on oath of any dyke-reeve acting within anj such district or sub-district as aforesaid, for any breach of the law, acts, decrees, orders, constitutions, and ordinances of the Commissioners within such district or sub-district, in the same manner as they have now the power to impose any such fine upon the presentment of any sewers jury, bailiff, surveyor, expenditor, or other Si W&T8 AcU Aim ii'lm -lit. '■'<- 1 . which presentment ahall be heard and determined by the Commissioners, and to proceed forthe recovery of everj racl One, either in the manner Bpeoified in the hereinbefore mentioned A.ct, or in the manner specified in the section next hereinafter contained, as to the said Commissioners shall seem mosl expedient ; and qo Bnch fine shall be liable to be fcraA ersed, any law or custom to the runt rary notwithstanding. 7. And be it enacted, that for the purpose of better collecting and For recovery of recovering the fines, amercements, penalties, or forfeitures imposed 1 >> ~ * any Commissioners of Sewers, and also the sewers rates duly assessed on any sewaUe lands lying within the limits of any Commission of Sewers, it shall and may be lawful for any one Commissioner acting within and for such limits, upon complaint of any expendit i ir, dyke-reeve, Collector, or other officer of sewers, thai any person liable to the payment of any auch fine, amercement, penalty, or forfeit are hath not paid the same, hut hath refused to do so, or that any person duly rated and assessed in one or more such sewers rates hath not paid the sum or sums thereby charged on such person, but hath refused so to do, to issue Ins summons to such person to appear, at a time and place to be therein specified, before any two Com- missioners acting within and for such limits, to show cause why such person refuses to pay the said sum or sums ; and upon the appearance of such person at the time and place appointed as aforesaid, or otherwise upon proof on oath or affirmation to the said Commissioners that such summons was served on the person to whom it was so directed, by delivery to the party personally, or by leaving tin- saute with some person forhim at his last place of abode, and also upon like proof of the imposition of such fine, amercement, penalty, or forfeiture, or of the making of the said rate, and of the refusal of such person to pay the same respectively, it shall be lawful for the said two or other Commissioners to issue their warrant to levy the said sum or sums, and also the costs and expenses incurred in obtaining such warrant (to be specified therein) and in executing the same, by distress and sale of the goods and chattels of such person ; and the overplus arising- from the sale of such goods and chattels, after satisfying suoh sum of money and costs, and the expenses of the distress and sale, shall be returned, on demand, to the party whose goods shall have been distrained: Provided always, that if no such distress or distresses as aforesaid can be found, the same rates or fines, costs, charges, and expenses, together with the costs .and charges of raising and levying the same, shall ami may be raised and levied upon and out of the lands, tene- ments, and hereditaments, within the limits of the Commission under and by virtue of which the distress warrant shall be issued, of or belonging to the person, body politic or corporate, upon or against whom the disi warrant shall be issued, in such and the same manner as the same would have been le^ iable if t he same lands, tenements, or hereditaments had been lawfully assessed in the amounl or respective amounts of the same rates or tines, costs, charges, and expenses, to or for a lawful scot, rate, or assessment for I he purposes of the same Commission ; and t he same lands, tenements, and hereditaments shall be subject to all such and the same -•;s- 24 & 25 Vic. c. 133. ( toe warrant may issue ■ -,-'. i Till ratepayers. To whom warrants to lie directod. Interpretai ion of certain terms. orders and decrees as the Bame would have been subjeel to, and such orders and decrees as shall be of the same force and authority, as if the same rates or lines, costs, charges, and expenses were a lawful scot, rate, or assessment as aforesaid and unpaid. s. Ami be it enacted, thai for the saving of expense in the levying of any sum or sums as aforesaid, it shall lie lawful to make and issue ono summons and one warrant of distress against any number of persons refusing to pay the same. 9. And be it enacted, that the warrant aforesaid may be directed to the bailiff, expenditor, dyke-reeve, collector, or other sewers officer within such limits, and to any other person or persons, or to any 'one or more of them, as by the two Commissioners of Sewers granting the same shall be deemed tit. 10. And be it enacted, that for the purposes of tin's Act the following words and expressions shall have the several meanings hereby assigned to them, unless there shall be something in the subject matter or context repugnant to such construction: (that is to say,) Words importing the singular number shall extend to the plural, and words importing- the plural only shall include the singular; the word " person " shall extend to bodies politic, corporate, or collegiate ; the word " lands " shall include lands and hereditaments of any tenure whatsoever; the word " oath " shall include affirmation in case of a quaker, or other declaration lawfully substituted for an oath in the case of any other persons exempted bylaw from the necessity of taking an oath ; the expression " district " shall extend to any level, valley, district, or limit within the Commission of any Court of Commissioners, and the expression " sub-district " to any partition or sub- division of any such level, valley, district or limit. 24 & 25 VIC. c. 133. An Act to amend the Law relating to tlic Drainage of Land for Agricultural Purposes. [Gth August, 1861.] Whereas it is expedient to amend the Law relating to the Drainage of Land for Agricultural Purposes : Be it enacted by the Queen's most ex- cellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — Short Title. Preliminary. 1. This Act may bo cited for all purposes as " The Land Drainage Act, 1861." Act to apply to 2. This Act, in so far as the same relates to Commissioners of Sewers, Englandonly. slial i j nc ] u de any Commission of Sewers granted by Her Majesty, and for the time being in force, wltether such Commission is or is not granted in Land Drainage Act, 1801. 383 pursuance of tliis Act, or has or has noi been granted previously to this Act, and in so Ear as the Hame relates to Commissioners of Sewers shall include Commissioners acting under any such Commission as aforesaid, bul it shall in it extend to Scotland or Ireland, or to any part of the Metropolis as defined by the Act passed in the session holden in the eighteenth and nineteenth years of the reign of Her present Majesty, chapter one hundred and twenty, intituled "An Act for the better Local Management of the M et I'opolis." 15. " Watercourse" shall include all rivers, streams, drains, sewers, Definition of and passages through which water flows: terms. "Person " shall include any body of persons, corporate or noncor- porate, unless there is something in the context inconsistent therewith : "Owner" as used throughout this Act, except where otherwise defined in the provisions relating to rating, shall have the same meaning as it has in "The Lands Clauses Consolidation Act, is 1.5." PAET I. COMMISSIONS OF SEWERS. Assignment of New Limits. I. Ir shall be lawful for Her Majesty, upon the recommendation of the Commissions Inclosure Commissioners, to be obtained on such application and subject to of Sewers may such conditions as hereinafter mentioned, to direct Commissions of new areas on Sewers into all parts of England, inland as well as maritime, and to assign tk>nofIn^ da " as t he limits for the jurisdiction of such Commissions any areas that may be closure Corn- thought most expedient, having regard to the levels and other facilities for missloners - drainage within such areas, with power for Her Majesty to include within the limits of any Commission of Sowers any area to which a Commission of Sewers may not hitherto have been assigned, or any area either wholly or partially within the limits of an existing Commission of Sowers ; subject to this proviso, that no alteration shall be made affecting the jurisdiction of any Commissioners of Sewers without the consent of a Special Meeting of such Commissioners. 5. The following proceedings shall be taken for the purpose of obtaining Rceommen- tho recommendation of the Inclosure Commissioners, to the errant of a ( J at !"" "' _ . . ° Inclosure Com- l ommission ot Sewers: missioners to be obtained en (1) A petition shall be presented to the Inclosure Commissioners, petition of stating the proposed boundaries of the area to be comprised StOTnivestiea- within the limits of the Commisson, by reference to a map, or tion by an in such other manner as the Commissioners think expedient, and signed by the proprietors of one-tenth part of the land within such boundaries : (2) The petition shall In- supported by such evidence as the In- closure Commissioners require : but the matter thereof shall not 384 24 & 25 Vic. c. 133. be entertained nut i 1 the petitioners have given such security as the [nclosure Commissioners may require Eor the payment of costs in the event of the pel it ion being unsuccessful: (3) Qpon the receipt of such petition the [nclosure Commissioners may, if they think lit, send an inspector to the place for the purpose of making inquiries as to the genuineness of the petition, and as to the propriety of the proposed boundaries, and its to the ntnnlier of proprietors assenting to or dissenting from i lie prayer of the petition : (I) Before commencing such inquiry the inspector shall give such notice as the [nclosure Commissioners dired of his intention to make the same, and of a time and place &i which he will be prepared to hear all proprietors desirous of being heard before him on the subject of such inquiry, and of a further time, being not less than fourteen days, within which all proprietors intending to dissent from the prayer of the petition must express such dissent : (5) The Inclosure Commissioners shall dismiss the petition if the proprietors of one-third part of the land within the proposed boundaries express their dissent from the prayer thereof, in writing addressed to the Inclosure Commissioners, and sent to their office in London within such time as aforesaid; but if no such dissent be expressed, and if the Commissioners, after hearing the report of their inspector, approve of the proposed boundaries, either with or without modification, one of Her Majesty's principal Secretaries of State shall convey an intimation of such approval to Her Majesty ; and a Commission of Sewers for the area as proposed by the petitioners, or as modified by the Inclosure Commissioners, shall thereupon be issued. Definition G. The following persons shall be deemed to be proprietors for the proprietors. purposes of this Act ; that is to say : (1) Any person entitled for his own benefit, at law or in equity, for an estate in fee, to the possession or receipt of the rents and profits of any freehold or copyhold land, whether such land is or not subject to incumbrances : (2) Any person absolutely entitled in possession, at law or in equity, for his own benefit, to a beneficial lease of land of which not less than twenty-five years are unexpired, whether such land is or not subject to incumbrances; but no lease shall be deemed to be a beneficial lease, within the meaning of this Act, if the rent reserved thereon exceeds one-third part of the full annual value of the land demised by such lease : (:5) Any person entitled under any existing or future settlement, at law or in equity, for his own benefit, and for the term of his own life, or the life of any other person, to the possession or Land Drainage Act, 1861. :)*•"> receipi of the rents and profits of land of any tenure, whi subjeci or mil to incumbrances, in which the estate for the time being sub j eel to the trusts of the settlemenl is an estate for lives or years renewable for ever, or is an estate renewable for a term of not less than sixty years, or is an estate for a term of years of which aoi Less than sixtj arc unexpired, or is a greater estate than any of the foregoing estates. ( 1) The word " settlement," as herein used, shall include any Lei of Parliament, will, deed, or other assurance whereby par- ticular ■estates or particular interests in land are created, with remainders or interests expectant, thereon. (5) Any body corporate, any corporation sole, any trustees for charities, and any Commissioners, or trustees for ecclesiastical, collegiate, or [other public purposes, entitled at law or in equity, in the case of freehold estates or copyhold estates in fee, and in the ease of leasehold estates to a lease for an unex- pired term of not less than sixty years. 7. Where any proprietor as hereinbefore defined is a minor, or of Trustees to be unsound mind, or a married woman, the guardian, committee, or husband nrieTors Si " as the case may be, of such proprietor, shall be the proprietor within the certain cases. meaning of this Act ; subject to this proviso, that a married woman entitled for her separate use, and not restrained from anticipation, shall, for the purposes of this act, be treated as if she were not married. 8. Where a corporation, aggregate, a joint stock or other company, or Provision as to any body of proprietors or undertakers, is proprietor of any land, such proprietorship i.- i i c ■ .l i i t • , b y corpon corporation, company, body of proprietors or undertakers respectively, and com] shall be deemed to be one proprietor for the purpose of giving an assent or dissent under this Act, and may express their assent or dissent in writing under their common seal in the case of a corporation, and in any other case under the hands of three Directors or other persons in the direction or management of the company or concern ; but no member of such corporation, nor proprietor or person interested in such company or concern, shall be entitled to dissent individually as a proprietor in respeel of such land. 9. Where several persons are proprietors of land as joint tenants, provision as to coparceners, or tenants in common in undivided moieties, they shall in joint respeel of such land lie accounted as one proprietor, lint the concurrence of the proprietors of two-third parts of such land shall be deemed to bo t he concurrence of t he whole. It). When any portion of land comprised within the boundaries referred Provision in to in anv such petition as is hereinbefore mentioned appears to have no case of no ... proprietor. proprietor within the meaning of this Act, or the proprietor cannot be found, the land so circumstance dshall be altogether excluded in any computation that may be made of I he proportion borne by the dissenting C Q 386 24 & 25 Vic. c. 133. Powers (if inspector. proprietors of any area of land as? hereinbefore provided to the aggregate number of tin- proprietors of such land. 11. Any inspector sent by the Inclosure Commissioners in pursuance of this Act may, by summons under las band, require to appear before him any persons whomsoever, and examine them upon oath or otherwise touch- ing any matter relating to the purposes of the inquiry, and he may by any such summons require any parochial officer, or any officer of or acting under any corporation, guardians or directors of the poor, and any Com- missioner, trustee, officer, or person acting under any local Act of Parlia- ment in force within the district to which any such inquiry may relate, to produce before him any surveys, plans, sections, rate books, or other like documents which may by reason of their office he in their custody or con- trol, touching any matter relating to the purposes of such inquiry; and such inspector may examine, inspect, or take copies of any such hooks, .survey-, phins, sections, and documents, or any of them, or part thereof; and whosoever wilfully disobeys any such summons, or prevents any such inspector from examining, inspecting or taking copies as last aforesaid, or refuses to answer any question put to him by such inspector, for the pur- poses of the said inquiry, shall be liable to a penalty not exceeding live pounds, to be recovered in a summary manner; but no person shall be required to attend in obedience to any summons unless the reasonable charges of his attendance have been paid or tendered to him. 12. All costs, charges, and expenses incurred by the petitioners or the Inclosure Commissioners in obtaining the issue of a Commission of Sewers Expenses incurred in obtaining the issue of a Cora- in pursuance of this Act shall be a charge on the rates leviable by the sl'vo'i-s' under Commissioners of Sewers acting under such Commission, but if no Com- this A.ct. mission is issued all such costs, charges, and expenses as aforesaid shall be defrayed by the petitioners. Evidence of 13 The issue of a Commission of Sewers for any area shall be conclu- nuBsion ""'" B * ve |,VIIU ' IK ' 1 ' 'bat -^ tno requirements of this Act in respect of the issue of such Commission have been complied with. Duration of ( lommissions of Sewers. Duration of Commission. 14. A Commission of Sewers once issned shall be deemed to continue until such time as it may be superseded by Her Majesty ; and Her Majesty may from time to time, by writing under her sign manual, till up any vacancies that may arise in the body of Commissioners assigned by any Commission of Sewers. Quorum. Quorum of 1 •">• Three Commissioners shall constitute a quorum at any meeting or ( ommissioners. Q onr t f Commissioners of Sewers, except, in cases where improvements in existing works, or the construction of new works, ;is hereinafter defined, are in question, in which case the quorum now required bylaw shall be in c Land Drainage Ad, 18G1. :;-7 Qeneral Powers of Commissioners. 16. The powers of Commissioners of Sewers acting within their juri - d did ion shall extend to t be following acts : — powers ol Com- (1) To cleansing, repairing, or otherwise maintaining in a due state of efficiency any existing watercourse or outfall for water, or any existing wall or other defence against water, hereinafter referred to under the expression "Maintenance of existing Works:" (2) To deepening, widening, straightening, or otherwise improving any existing watercourse or outfall of water, or removing mill- dams, weirs, or other obstructions to watercourses or outfalls for water, or raising-, widening, or otherwise altering any exist- ing wall or other defence against water, hereinafter referred to under the expression "Improvement of existing Works : " (3) To making any new watercourse or new outfall for water, or erecting any new defence against water, to erecting any machinery, or doing any other act not hereinbefore referred to, required for the drainage, necessary supply of water for cattle, warping or irrigation of the area comprised within the limits of their jurisdiction, hereinafter referred to under the expression " the Construction of new Works :" Provided — (1) That no person shall by virtue of this Act be compelled to execute at his own expense any works which he would not have been compelled to execute if this Act had not passed : (2) That no works shall be deemed to be a new work that is in sub- stitution for an old one, in case where such old work is so much out of repair or so inefficient as to make it expedient to con- struct a new work in place thereof : (3) That full compensation shall be made for all injury sustained by any person by reason of the exercise by the Commissioners of the above powers : (4) That the exercise of the foregoing powers shall be subject to the restrictions hereinafter mentioned. 17. The Commissioners shall not be entitled to remove or otherwise Restrict! interfere with any mill-dam, weir, or other like obstruction, wherebv t he '" "''-tract inns. level of the water is raised for any milling or other purpose of profit, so as to injuriously affeel the supply of water, otherwise than with the consenl of the owner of such mill-dam, weir, or other like obstruction, unti] the following things have been done, that is to say : (1) Their right to do so has been determined in manner hereinafter mentioned ; (2) Compensation has been made to all parties entitled for the injury which may lie caused by sneh removal or interference. 388 24 & 25 Vic. c. 133. Questions as to is. For the purpose of determining the righl of the Commissioners to '.",', '.'„','.'." v ' ! remove or otherwise interfere with oy such dam, weir, or other like obstruction, there shall be decided, if the owner consent, by two or more justices assembled in petty sessions, Inn if he do nut consent, by arbitration, the questions following; that is to say : (1) Whether the proposed removal or interference is necessary for the effectual drainage of land within the jurisdiction of the ( lommissioners : (2) Whether the proposed removal or interference will cause any injury to the owner : (3) Whether any injury that may be caused by the removal or interference is or is not of a nature to admit of being fully com- pensated for by money. Consequ 19. Tho consequence of any such decision shall be as follows ; that is of determina- . tionof question. s ■> : (1) If the decision is that such a removal or interference is not necessary for the effectual drainage of the lands by the Com- missioners, the Commissioners shall not be entitled to make the same : (2) If the decision is that such removal or interference is necessary for the purpose aforesaid, but that the injury to be caused thereby is not of a nature to be fully compensated for by money, the Commissioners shall not be entitled to make the same : (3) If the decision is that such removal or interference is neces- sary, and that any injury that may be caused can be fully compensated by money, the Commissioners shall be at liberty to make the same, upon making compensation as hereinafter mentioned. Amount of com- 20. Where the decision is that the Commissioners arc entitled to usrri't'utM (l " remove or interfere with any such mill-dam, weir, or other obstruction, the Commissioners shall take the same stops with respect to compensating the parties interested as are required to be taken by the said Lands Clauses Consolidation Act by purchasers in cases where they are authorised to purchase or take lands by special Act. Restrictions as 21. The Commissioners shall not by virtue of this Act purchase any topurcnaseoi ]. |11( | f or new works, otherwise than by agreement with the owner thereof, until they have obtained the sanction of Parliament in manner hereinafter mentioned. Publication of *^" ^ UG Commissioners, before applying for the sanction of Parliament, notices. shall do as follows; that is to say: (1) Publish once at least in the London Gazette, and once at least in each of three consecutive weeks in some newspaper circulating Land Drainage Ad, 18G1. 389 within (he limits of their Commission, an advertisement describing Bhortly the nature of the undertaking in resped lit' which the land is proposed to be taken, naming a place where a plan of the proposed undertaking may be seen at all reasonable hours, and stating the quantity of land that they require : (2) Serve a notice in manner hereinafter mentioned on every owner or reputed owner, lessee or reputed lessee, and occupier of such lands, defining in each case the particular lauds intended to be taken, and requiring an answer stating whether the person so served assents, dissents, or is neuter in respect of taking sueh lands ; such notice to be served By delivery of the same personally on the party required to be served, or if such party is absent abroad to his agent ; or By leaving the same at the usual or last known place of abode of such party as aforesaid ; or By forwarding the same by post in a prepaid letter addressed to the usual or last known place of abode of such party. 23. Upon compliance with the provisions hereinbefore contained with Petition to respect to advertisements and notices, the Commissioners may present a ^. cl< ? snre Com " J ^ mibsioncrs. petition to the Inclosurc Commissioners. The petition shall state the land intended to be taken, and the purposes for which it is required. It shall pray that the Commissioners may, with reference to such land, be allowed to put in force the powers of the said Lands Clauses Consolidation Act in relation to the compulsory taking of land, and such prayer shall be sup- ported by such evidence as the Inclosure Commissioners require. 24-. Upon the receipt of such petition, and upon proof to their satisfac- Inquiries by tion of the proper advertisements having been published and notices served, Il «' 1 " Mn ''-' Com- the Inclosure Commissioners shall take such petition into then- considera- tion, and they may either dismiss the same or they may, if they think lit, send an inspector to the district in which the land is situate, for the purpose of making inquiry as to the propriety of assenting to the prayer of such petition. 25. Before commencing his inquiry the inspector shall give such notice Notice of as the Inclosure Commissioners direct of his intention to make the same, m 'i ,unc *- mid iif a time and place at which he will be prepared to hear all persons desirous of being heard before him on the subject-matter of such inquiry. 26. Upon the completion of such inquiry the Inclosure" Commissioners Provisions may, by provisional order, empower the Commissioners to nut in force ','"'",' ''- v , »' J ' -, • , r, Inclosure Com- with reference to the land men turned or ret erred to in such order the powers missioners to of the Said bands Clauses Consolidation Act in relation to the compulsory i|° p'-J^k? 1 taking of land ; and it shall be the duty of the Inclosure Commissioners as soon as conveniently may be to take all proper steps for the continuation 390 24 & 25 Vie. c. 133. of such provisional order by Act of Parliament, and when so confirmed it shall be deemed to be a public general Act of Parliament, and to take effect accordingly ; but previous to such confirmation it shall not be of any validity whatever. Exper 27. All costs, charges and expenses incurred by the Inclosure Com- aional missioners in relation to the obtaining any such Act as aforesaid shall be order. ]i;i j,| ],y t ) ic Commissioners out of the rates leviable by them in pursuance of this Act, and applicable to the works with a view to which the provisional ortler was obtained. Provisions of 28. Subject bo the restrictions herein contained, the Commissioners may and 23 &24Vic! P'^'hase Such lands or easements relating to lands as they may require for c. 106, incorpo- the purposes of this Act; and "The Lands Clauses Consolidation Act, A t . t- * LS-iu," and the Act amending the same, passed in the session of the twenty- third and twenty-fourth years of the reign of Her present .Majesty, chapter one hundred and six, shall be incorporated with this part of this Act, with the exceptions and subject to the conditions hereinafter contained ; that is to say, (1) There shall not be incorporated with this part of this Act the sections and provisions of " The Lands Clauses Consolidation Act, 1845," hereinafter mentioned ; that is to say, section sixteen, whereby it is provided that the capital is to be subscribed before the compulsory powers are to be put in force ; section seventeen, whereby it is provided that the certificate of the justices should be evidence that the capital has been subscribed ; the provisions relating to the entry upon lands by the promoters of the undertaking, contained in sections eighty-four to ninety-one, both inclusive; section one hun- dred and twenty-three, whereby a limit of time for the compulsory purchase of land is imposed, the provisions relating to the manner of serving notices, and the provisions relating to access to the special Act: (2) In the construction of this part of this Act and the said incorporated Acts this part of this Act shall be deemed to be the special Act, and the Commissioners shall be deemed to be the pro- moters of the undertaking, and the word "land" or "lauds" shall include any easement in or out of lands. Notice to be 29. Previously to commencing any improvements in existing works or works ' ™ :lIl y new works where such improvements or new works involve an expen- diture of more than one thousand pounds, the Commissioners shall cause plans of the proposed work and an estimate of the expense thereof, and of the area within which a rate will bo required to be levied to meet such expense to be made, together with a list of the names and addresses of the persons reputed to be proprietors of the land within such last-mentioned area, with the addition of the number of acres of which each person is reputed to he t he proprietor, and shall publish their intention to execute such works two months before commencing the same in manner following; that is to sav : Land Drainage Act, 1861. 301 By inserting in some newspaper circulating within the limits of their Commission once in every week daring such period of two months, a notice explaining briefly the nature of the work, the amount of expense to lie incurred and the ana of land within which a rate is proposed to be levied for meeting such expense, describing such area by reference to a deposited plan, or by boundaries, or in such other manner as the Commis- sioners may think best calculated to give information of their intention, and stating a place within the limits of their Com- mission at which the plan and estimate of the works and the list of reputed proprietors may be inspected at all reasonable hours : By placing a copy of such notice for three successive Sundays on the church door of the princpal church, or some one of the churches of the parish or parishes in which such works are to be done, or in the case of any extra-parochial place, of some parish imme- diately adjoining thereto. 30. Any person interested may, at any time before the expiration of Correction of such two months as aforesaid, apply to the Commissioners to correct the proprietors list of reputed proprietors by inserting or expunging the name of any person, or by altering the number of acres appropriated by such list to any pro- prietor, and the Commissioners shall hear any application so made, and shall amend the list accordingly, and the decision of the Commissioners in respect of such list shall be final ; and at the expiration of the period of two months, or of such further period as the Commissioners may fix for the purpose of hearing any application made within such period of two months the list as settled by the Commissioners shall be conclusive evidence of proprietorship for the purpose of ascertaining the proportion of dissenting proprietors as hereinafter mentioned. 31. If within such period of two months the proprietors of one-half of Dissent of the area of land within which a rate is according to the notice proposed to proprietors oi . ' L one-hiil I ut area be levied declare in writing to the Commissioners, by notice left at their conclusive office, that they are unwilling that such work should be executed, the il f iU , n s st new Commissioners shall take no further steps therein : but if no such declara- tion of dissent is made, the Commissioners may, at the expiration of such period of two months, commence the proposed work, and repay out of the rates to be levied by them within the area all expenses incurred, not exceeding the estimate published in the notice. 32. If the Commissioners are unable to discover the proprietor of any Provisionin lands they shall give notice to that effect in the list of reputed proprietors case "' "" made by them, and such land shall, in the event of no proprietor proving his title to have his name inserted in the list before the period hereinbefore named for the completion of the list, be altogether excluded in any com- putation that may be made of the proportion borne by the dissenting proprietors of any area of land as hereinbefore provided to the aggregate number of the proprietors of such land. S92 24 & 25 Fi'c c. 138. Jury ma; b i dispensed with under certain conditions. 33. Commissioners of Sewers, acting within their jurisdiction, may, without the presentmenl of a jury, make any order in respecl of the excu- fcionofany work, the Irwin- of any rate, or doing any act which they nihhi hut fur this section have made with such presentment; subjecl to bhis proviso, thai any person aggrieved bj any such order made by the Commissioners without the presentment of a jury may appeal therefrom in manner hereinafter mentioned. Power i o commute liabilit Les to re] inn- by reason of tenure. N;ii nrc of com- mutation. Deposit nt Record of commutation. Saving nf exist tng liabilit Les to repair. Liability hy reason of Tenure. 34. The Commissioners may, with the consent of the Inclosure Commis- sioners, testified in writing under their common seal, commute, for such sums of money as they think expedient, the obligation imposed on any person, by reason of tenure, custom, prescription or otherwise, to repair any walls, maintain any sewer, or do any other work within their juris- diction. 35. Any commutation so made may be by way of gross or annual charge on the hinds of the person in respect of which the original obligation arose and any charge so created shall be recoverable by the Commissioners in the same manner in which tithe rent-charge is recoverable, and shall have priority over all incumbrances created or to be created by any proprietor of the Lands on which the same is charged. 36. The record of any such charge as aforesaid shall be deposited in the office of the clerk of the peace of the county in which the district or the greater part of the district within the jurisdiction of the Commissioners is situate; and such record, or any certified copy thereof, shall be receivable in evidence in all legal proceedings. 37. Subject to the provisions hereinbefore contained as to commutation of liability, the liability of any person whomsoever to defray or contribute towards the expense of making, completing, altering, amending or main- taining any sewer or drain, or any walls or works for protecting the land against the force or encroachments of the sea or of any river, or doing any other work within the jurisdiction of the Commissioners, shall continue, and the same may I"' enforced us if this Act had not passed, .and I hi' rates to be les ied under this Act shall lie made only for purposes to which such liability docs not extend. Rating Powers. Regulations as 88. The following regulations shall be observed with respect to rates to rating. leviable by Commissioners of Sewers : that is to say, first — As to the purposes of the rate : Rates may he Levied by Commissioners of Sewers for defraying all costs, charges, and expenses incurred or to he incurred by them under the authority of any Act of rarliamcnt, law, or custom. Land Drainage Act, 1861. 393 Second — As fco the incidence of the rates : (1) A rale levied by the Commissioners for the purposes "!' defray- ing the expense of any improvements in existing works or any new works, where such improvements or new works involve an expenditure of more than one thousand pounds, shall be deemed to he a special rate, and shall bo deemed to he a tax on the owners of property; but except such special rate, rates leviable by the Commissioners shall be payable by the same persons, in respect of the same property, and in the same manner as they are now by law payable : (-) Where the owner of any land makes default in paying the amount of any rate due from him, such amount may be levied upon and payment thereof enforced against the occupier of such land, and his goods and chattels in like manner as if the same were a rate due from such occupier, with this limitation, that no occupier shall be liable to pay on account of any owner any sum exceeding the the rent due or that may accrue due to such owner during the period of his occupancy ; and subject to this proviso, that any occupier may, in the absence of any agree- ment to the contrary, deduct the sum so paid by him from any rent due or to accrue due to such owner ; and the receipt of the Commissioners for any rate paid by the occupier under the circumstances mentioned in this section shall, to the extent of the moneys therein expressed to be paid, be a discharge as against such owner of an equivalent amount of rent : (3) "Owner of land'' for the purposes of this section shall mean the person for the time being entitled to receive the rack-rent of the land in respect of which the rate is made on his own account, or who would be entitled to receive the same if such land were let at a rack-rent, including under the term "rack-rent" any rent which is not less than two-thirds of the net annual value of the land out of which the rent issues. Third — As to the assessment of the rate : ( 1) Whenever the name of any owner or occupier liable to be rated to the sewers rate is not known to the Commissioners, it shall be sufficient to assess and designate him in tin- rate as " the owner or occupier," as the case may be, of the hind in respect of which the assessment is made, without further description ; Subject as aforesaid, and without the presentment of a jury, but with such right of appeal as hereinafter mentioned, sewers rates may be assessed, levied, and enforced in the same manner in which they have heretofore been assessed, levied, and enforced; but nothing in this section contained shall affect an\ agreemeni between landlord and tenant. 39. For the purpose of assessing the sewers rate, any person appointed by o the Commissioners may inspect, take copies of, or make extracts from any illlow 394 24 & 25 Vic. c. 133. inspection of Poor Rates. Mortgage of rates. t lertain cla u es of L04 II Vic. c. 16, incor- porate i. by ( 'iiimiii how to be signed. Notices to be binding on assigns. rate for the relief of the poor within the district ; and if any officer having the custody of such last-mentioned rate refuses to permit any such inspec- tion, or the taking of any such copies or extracts, he shall for each offence incur a penalty not exceeding five pounds, to be recovered in a summary manner. Mortgage of Rates. 10. The Commissioners may, for the purposes of defraying any costs charges, and expenses incurred or to be incurred by them under the authority of any Act of Parliament, law or custom, borrow and take up at interest on the credit of the rates authorised to be levied by them any, sums of money necessary for defraying such costs, charges and expenses : and for the purpose of securing the repayment of any sums of money bo borrowed, together with such interest as aforesaid, the Commissioners may mortgage and assign over to the persons by or on behalf of whom such sums are advanced the rates or any of them ; but the exercise of the above power shall be subject to the following regulations : (1) The borrowing such money shall be sanctioned by an order of the Inclosure Commissioners : (2) Any money so borrowed may, by agreement with the mortgagee, be paid off by equal annual instalments of principal and in- terest, and such borrowing may be for such time, not exceeding thirty years, as the Commissioners, with the sanction of the Inclosure Commissioners, determine in each case : And in cases where the Commissioners borrow any money for the purpose of defraying the expenses in respect of which they have determined, a part only of the district within their jurisdiction to be liable, it shall be the duty of the Commissioners, as between the ratepayers of the district, to repaj the money so borrowed, with interest thereon, out of the rates to lie levied on such pari Of the district only. 11. The clauses of the Commissioners Clauses Act, 1847, with reaped to mortgages to be created by the Commissioners, shall form part, of and be incorporated with this part, of this Act, and any mortgagee or assignee may enforce payment of his principal and interest by appointment of a receiver. Legal Proceedings. 42. Where anynotice is required to he given by the Commissioners such notice shall in all cases be sufficiently executed if signed by the clerk to the Commissioners; and every notice purporting to be signed by such clerk shall be receivable in evidence before all legal tribunals, and in all legal proceedings, without any other proof. I:;. All notices served by the Commissioners on any proprietor or owner shall, if due service thereof has beon made, be binding on all persons Land Drainage Act, 18G1. '■'>'.)') claiming by, from, or under such proprietor or owner, to the Borne extent as if such notice had been served on such last-mentioned persons respectively. I I. Except where a special mode of service is provided by this Act, all Nbtici notices required to bo served by the Commissioners upon any proprietor • r j.^| r owner of lands shall either ho served personally on such parties, or be l< ifi , or at their last usual place of abode, if any such can after diligent inquiry I i abode, found, but: in case any such parties are absent from the United Kingdom, and their last usual place of abode cannot be found, after diligent inquiry, such notices shall be left with the occupier of such lands, or if there be no such occupier, shall be atlixed upon some conspicuous part of such lands. I"). 1 f any proprietor or owner on whom notice is to bo served is a Notices to cor- corporate aggregate, or a joint-stock or other company or body of pro- fX^t°thei r L prietors or undertakers, such notice shall be left at the principal office of principal such corporation, company or body, or if no such office can after diligent inquiry be found, shall be served on some agent, if any, of such corpora- tion, company, or body, but if no such officer or agent can be found, it shall lie left with the occupier of the lands, or if there be no such occupier shall bo atlixed on some conspicuous part of such lands. 4b*. Except where a special mode of service is provided by this Act all Service of notice on occupiers. notices required to bo served by the Commissioners upon the occupier of ni any land shall either be served personally on him or be left at his last usual place of abudc, if any such can, after diligent inquiry, be found, and in ease he is absent from the United Kingdom, and his last usual place of abode cannot be found after diligent inquiry, it shall be affixed on some conspicuous part of such premises. 47. Where any order, requisition, or rate has been made by the Commis- Appeal to sioners, or any act done by them without the presentment of a iurv in ( ^ u:irf ' 1 ' , ,, • Sessions. pursuance of the powers of this Act, any person aggrieved by such order, requisition, or rate, may appeal to the Court of Quarter Sessions against any such order, requisition, rate, or act, and the court may confirm, annul, or modify the sane accordingly ; but no such appeal shall be entertained unless it is made within four months next after the making of such order or requisition, or the making such rate, or the doing of such Act, nor unless ten days' notice in writing of such appeal, previously to the Quarter Sessions, stating the nature and grounds thereof, is served on the Commis- sioners, nor unless the appellant, within four days after the service of such notice, enter into recognizances with two sufficient sun-ties before a justice of t he peace, conditioned duly to prosecute such appeal, and to abide the order of the court thereon. IS. If at any time after such notice of appeal has been given, and such Power : rec ignisance Ins been entered into as aforesaid, it appears to the Court of ca ? e . '" ... arbitration. Quarter Sessions, on the application ot either party, that the matter in question iu such appeal consists wholly or in part of matters of mere 396 24 & 25 Vic. c 133. 17 & 1H Vic. c. 12"> incorpo- rated. Decision of questions by justices nr arbitration. account, or of engineering or other scientific questions, which cannot be satisfactorily tried by the court, it shall be lawful for such court to order that such matters, either wholly or in part, be referred to the arbitration of one or more persons, to be appointed by the parties, or, in case of disagreement, by the court; and the award made on such arbitration shall be enforceable by the same process as the order of the Court of Quarter Sessions. 49. The provisions of I ho Common Law Procedure Act, 1854, relating to compulsory references, shall be deemed to extend to arbitrations directed by the Court of Quarter Sessions ; and the word " court " in the said Act shall be deemed to include the Court of Quarter Sessions. 50. Where any questions are declared by this part of this Act to be determinable, at the option of the owner, by justices or by arbitration, the owner shall be deemed to have declared his assent to the determination thereof by justices, unless he require the Commissioners to refer the same to arbitration, by notice under his hand, served on the Commissioners within ten days after he has received notice from them of their intention to have such questions determined ; and where the justices have cognizance of the case, the same proceedings shall bo had as are required under the Lands Clauses Consolidation Act, 1854, (a) in case of a question of disputed compensation authorised to be settled by two justices; and where such questions are referred to arbitration, the same proceedings shall be had as required by the said Act where any question of disputed compensation authorised to be settled by arbitration has arisen ; subject to this proviso, that the costs of such arbitration shall be in the discretion of the arbi- trators. 51. All penalties and sums of money directed to be recovered in a sum- mary manner shall be recovered before two justices in manner directed by the Act passed in the session holdcn in the eleventh and twelfth years of the reign of her present .Majesty, chapter forty-three, intituled "An Act to facilitate the performance of duties of justices of the peace out of sessions within England and Wales, with respect to summary convictions and orders," and of any Act amending the same. „ , . j j 52. All costs, charges, and expenses incurred by the Commissioners in proceedings on instituting or defending any legal proceedings instituted or defended by Comndssioners. them in their character of Commissioners may be defrayed out of the rates leviable by them, and no Commissioner shall be personally liable in respect or any such costs, charges or expenses. Recovery of penalties. Tender of ji mend . Tender of Amends. 5:i. If any party has committed any irregularity, trespass, or other wrongful proceeding in the execution of this Act, or any Act relating to Commissioners of Sewers, or by virtue of any power or authority thereby (a) So printed in the original Act, evidently a mistake for 18-1/5. Land Drainage Act, 1861. ; !'.'7 given, and if before action brought in respect thereof such party makes tender of sufficient amends to the party injured, such last-mentioned party shall not recover in any such action ; and if no such tender lias been made it- shall be lawful for the defendant, by leave of the courl where such allien is pending, at any time before issue joined, to pay into court such sum of money as he thinks fit, and thereupon such proceeding shall be had as in other cases where defendants are allowed to pay money into court. Saving Clauses and Miscellaneous. 54. Nothing in this Act shall authorise the Commissioners or any Drain- Saving rights _ r, , of canal owners ago Board or owner— . mil whiU . f . Lngers. (1) To interfere with any sewers or other works already or here- after made and used for the purpose of draining, preserving, irrigating, or improving land under any local or private Act of Parliament, so as^to injuriously affect the same: (2) To interfere with any river, canal, dock, harbour, lock, reservoir, or basin, or the supply of water to any river, canal, clock, har- bour, lock, reservoir, or basin, so as to injuriously affect the navigation on such river, canal, dock, harbour, lock, reservoir, or basin, or the use or maintenance thereof, or to interfere with any towing-path so as to interrupt the traffic thereof, in cases where any corporation, company, undertakers, Commissioners, conservators, trustees, or individuals arc by virtue of any Act of Parliament entitled to navigate on or use such river, canal, clock, harbour, lock, reservoir, or basin, or in respect of the navigation on or use of which river, canal, clock, harbour, lock, reservoir, or basin any corporation, company, undertakers, Commissioners, conservators, and trustees, or individuals are entitled by virtue of any Act of Parliament to the receipt of any tolls or other dues : (3) To interfere with the works or supply of water of any body or persons, corporate or unincorporatc, supplying water to any town or place, so as to injuriously affect the same : (4) To execute any works in, through, or under any wharves, quays, docks, harbours, or basins, belonging to the proprietor or pro- prietors of any inland navigation constituted by Act of Parlia- ment, or for the use of which they are entitled by virtue of any Act of Parliament to demand any tolls or dues : Without the consent of such corporation, company, undertakers, Commis- sioners, conservators, trustees, or individuals as are hereinbefore in that behalf respectively mentioned; such consent to be expressed in writing, in the case of individuals under their hands, in the case of a corporation under their common seal, and in the case of a company, undertakers, 398 24 & 25 Vic. c. 133. Commissioners, conservators, or trustees, under the hand of their clerk or other duly authorised officer or agent. Commissioners 55. Nothing in this Act shall authorise the Commissioners to diver! any not to divert ^ vivi , r in SU( . h manner ilK fc injure or to diminish the supply of water to any S jure harbours harbour without the consent of the conservators or other authority having the management of such harbour. Powerfor 5G. Any corporation, company, undertakers, Commissioners, conserva- £ontrs C t°oTter tors, trustees, or individuals authorised by virtue of any Act of Parliament Sewers. fc navigate on or use any river, canal, dock, harbour, or basin, or to demand any tolls or dues in respect of the navigation on such river or canal, or the use of such dock, harbour, or basin, may, at their own ex- pense, and on substituting other sewers, drains, culverts, and pipes equally effectual and certified as such by the surveyor of the Commissioners or Drainage Hoard, take up, divert, or alter the level of sewers, drains, cul- verts, or pipes constructed by the Commissioners or Drainage Board, and passing under or interfering with or with the improvement or alteration of such river, canal, dock, harbour, or basin, or the towing-path of such river, canal, dock, harbour, or basin, and do all such matters and things as may be necessary for carrying into effect such taking up, diversion, or altera- tion. Exemptions 57. Nothing in this Act shall be construed to make liable to the control Actepreserved. of the Commissioners any river, canal, or inland navigation, or the cuts, reservoirs, Feeders, or other works belonging thereto, in cases where such river, canal, or inland navigation is now under the provisions of any local or private Act of Parliament exempt from such control. Penalty for 58. No person shall, without the consent of the Commissioners, cause draining into fi]thv or anw holesome water or washings of manufactories or mines, sewers without • J , . ' ... . ,, consentof or other foul or poisonous liquid, to flow into any watercourse within the Commi8sioner8, jurisdiction of the Commissioners of Sewers; and any person offending against this enactment shall incur a penalty not exceeding five pounds, and a further penalty of forty shillings for every day during which the offenco is continued ; but this section shall not apply to any person having a legal right to cause such water, washing, or liquid as aforesaid to flow into any existing watercourse. Powers of Com- 50. Commissioners of Sewers having jurisdiction within any area may, missioners of y^ the consent of the Commissioners of Sewers having jurisdiction within sewers iiiiil *»*« « ** « brain: any adjoining area, do and execute in such adjoining area any works that ^o^arrange-* 6 * • such first-mentioned Commissioners might do and execute within theirown ment. area, upon such terms as to payment or otherwise as may be agreed upon between the said bodies of Commissioners; and any sums agreed to be paid by any body of Commissioners in pursance of this section, shall be payable out of the rates leviable by such Commissioners, in the same manner as if the expenses had been incurred within their own area ; and the powers hereby given to one body of Commissioners in relation to Land Drainage Act, 1861. 399 another body of Commissioners maybe exercised by them in relation fco any Drainage Heard constituted under this Act, or by any such Drainage Board in relation to any other Drainage Hoard. 60. \11 powers given by this part of this Act shall be deemed to be in Power addition to and not in derogation of any other powers conferred on Com- cumulative, missioners of Sewers by Act of Parliament, law, or custom; and Commis- sioners of Sewers may exercise such other powers in the same manner as if this Act had not passed ; and notwithstanding anything in this Act con- tained, Commissions of Sewers may he issued by Her Majesty in manner in which tlie same have been issued previously in the passing of this Act. 61. Nothing in this Act shall alter, interfere with, or affect any lease, Not to affect contract, or agreement that may have been entered into between landlord between land - and tenant before the passing of this Act. lord and tenant. I'.!'. Where in exercise of any powers given by this Act tiny watercourse Provision in forming a boundary line between two or more counties, hundreds, parishes case "* r:i,,c ' r;i - ., , n , , , . . , , * ' turn 01 local or other areas denned by law, is straightened, widened, or otherwise boundaries. altered so as to affect its character as a boundary line, the Commissioners, Board, persons or person under whoso authority such alteration is made shall forthwith report the same to the Inclosure Commissioners, and the In- olosure Commissioners, if satisfied that a new boundary line may be adopted with convenience, shall, by notice to be published in the London Gazette, and in such other manner as they may direct, declare that the watercourse, as altered, shall either wholly or partially be substituted for the former boundary line, and the limits of the areas of which the watercourse, when unaltered, was the boundary shall be deemed to be varied accordingly; but if the Inclosure Commissioners are of opinion that a new boundary cannot wholly or partially be adopted with convenience, they shall require the Commissioners, Board, persons or person under whose authority the alteration in the watercourse was made to set out a boundary upon the line of the watercourse as it existed before its alteration, or in a new course in lieu thereof, in such manner as the Inclosure Commissioners approve ; and a copy of the London Gazette containing the advertisement in respect of any alteration of boundary made in pursuance of this section shall be admitted as evidence in all Courts of Justice of the fact of snch alteration having been made. Part II. Elective Drainage Districts. 63. Any persons or body of persons, corporate or unincorporate, being Constitution of proprietors of not less than one-tenth part in acreage of any bog, moor, or elective di other area of land that requires a combined system of drainage, warping or . <*»■ irrigation, may, with the consent of the Inclosure Commissioners, and subject to the confirmation of Parliament as hereinafter mentioned, consti- tute such bog, moor or ot aei area a separate drainage district; subject to 400 24 & 25 Vic. c. 133. this proviso, thai no place within the limits of any Commission of Sewers, or of any borough, or of any district under tin- management of :i local board of health, or of [mprovemeni Commissioners, shall form a separate; drainage district or any part thereof, without the consent of the Commissioners of Seweis, council, local board of health, or Improvement Commissioners having jurisdiction in such place. Mode of cmisti- 04. The following proceedings shall be taken for the purpose of obtaining tuting e! drainagi district. dramaee"^ tne sam ' tio " OI t,u ' Inclosure Commissioners : (1.) A petition shall be presented to them, stating the proposed boundaries of the district, by reference to a map, or in such other manner as the Inclosure Commissioners think expedient. It shall be signed by such proprietors as aforesaid, and be sup- ported by such evidence as the Inclosure Commissioners require: (2) Upon the receipt of such petition, the Inclosure Commissioners shall send an inspector to the district, for the purpose of making inquiries as to the propriety of constituting the proposed district, and as to the assent of the proprietors thereto : (3) The inspector shall proceed to the district, and shall ascertain the opinion of the proprietors in respect to the constitution of the district : (-1) The inspector shall report the result of his inquiries to the Enclosure Commissioners, and they may, if satisfied with the propriety of constituting the district, and that the proprietors of two-third parts of such bog, moor, or other area are in favour thereof, make a provisional order declaring the area in such order mentioned to be a drainage district : (5) Notice of the provisional order shall be published in the London Gazette and in some other newspaper circulating in the district to which it relates, and copies thereof shall bo served in such manner and upon such persons as the Inclosure Commissioners may require : •Sic. (6) Upon the receipt of the report of the inspector of* Inclosure Commissioners may, by provisional order under their seal, con- stitute the area mentioned in the petition, with such alterations of boundaries, if any, as they think lit, a separate drainage district ; and it shall be the duty of the Inclosure Commissioners, as soon as conveniently may be, to take all proper steps for the confirmation of such provisional order by Act of Parliament, and when so confirmed it shall be deemed to be a public general Act of Parliament, and take effect accordingly; but previous to such confirmation it shall not be of any validity whatever : (7) No petition for constituting an elective drainage district under this Act shall be entertained until the petitioners have given Land Dramage Act, 1861. 401 such security for costs as the Inclosurc Commissioners require ; and in the event of a drainage district not being constituted in pursuance of a petition, the petitioners shall pay all costs, charges and expenses, including bhe expense incurred by the Inclosure Commissioners and their inspector; but in the event of the drainage district being constituted, such costs, charges and expenses shall be a firsl charge on the rates leviable in the district in pursuance of this Act. 65. The making of a provisional order shall be conclusive evidence that Evidence of all the requirements of this Act in respect of proceedings required to be ^taictf 1011 taken previously fco the making of such provisional order have been com- plied with. Drainage Boards. GG. The superintendence of matters relating to drainage within a Constitution of drainage district shall be vested in a board hereinafter called a Drainage Drainage ° Boards. Board, and such board shall be a body corporate, with perpetual succession and a common seal, having a capacity to hold lands for all the purposes of their constitution. G7. All powers by this Act or by any other Act of Parliament law or Powers of custom vested in or exerciseable by Commissioners of Sewers within the Drainage limits of their jurisdiction may, upon the constitution of a drainage district, be exercised by the Drainage Board of such district within its limits, and all powers hitherto exerciseable by Commissioners of Sewers within such dis- trict shall cease, subject to this proviso, that any person aggrieved by am order, requisition or rate made by the Drainage Board, or any act done b\ them, may appeal therefrom in the same manner in which he is by this Act authorised to appeal against any order, requisition or rate made by the Commissioners or any act done by them. 68. Subject to any provisions to the contrary that may be made by the Regulations as Provisional Order constituting the district, the following regulations shall V.' 1)ramat > r '' ° ° ° Boards. be made with respect to Drainage Boards : (1) The members of the first Drainage Board shall be named in the Provisional Order, and such order shall fix the number of which the Board is to consist, the mode of summoning the first meet- ing of the Board, the qualification of subsequent members of the Board, and the time tit which the first members of the Board are to vacate their offices, such time not being later than the end of the month of September in the year following that in which the Provisional Order is confirmed by Parliament ; (2) The members of every Board succeeding the first Board shall vacate their offices on the first Thursday in September in each succeeding year, or on such other day in September as may be prescribed by the Board ; D D 402 24 & 25 Vic. c. 133. (3) The offices of vacating members shall be filled up by an equal number of qualified persons to be elected as hereinafter mentioned : (4) Every member of a Drainage Board going out of office shall be re-eligible, and if at any time v, ben an eleel ion of members ought to take the places of anj rei iring mi mbers are not filled up, the retiring members whose places are not tilled up shall continue in office mitil the succeeding year : (5) Any casual vacancy occurring in the Board may be filled up by the Hoard; but any person so chosen shall retain his office SO long only as the vacating member Would have retained the same if no vacancy had occurred : (G) During any vacancy in the Board the continuing members shall act as if such vacancy had not occurred : (7) If a member of a Drainage Board is adjudged bankrupt, or applies to take the benefit of any Act for the relief or protec- tion of insolvent debtors, or compounds with bis creditors, such person shall cease to be a member of the Board, and his office shall thereupon be vacant : (8) Any person who acts as member of a Drainage Board without being duly qualified, or after he has become disqualified, shall incur a penalty not exceeding fifty pounds ; and in any pro- ceeding for the recovery of such penalty the burden of proving qualification shall be upon the person against whom such pro- ceeding is taken : (9) All acts done by any meeting of a Drainage Board or of any committee of a Drainage Board, or by any person acting as a member of a Drainage Board, shall, notwithstanding it may be afterwards discovered that there was some defect in the ap- pointment of any such Board or persons acting as aforesaid, or that they or any of them were or was disqualified, be as valid as if every such person had been duly appointed and was qualified to be a member. Rules to be 69. Subject to any provisions to the contrary that may bo made by the observed with Provisional Order constituting the district, the following Rules shall be electors of observed with respect to the electors of Drainage Boards : Board. ag ° (1) The electors for members of a Drainage Board for any district shall be the persons who have during the year immediately pre- ceding such election been rated to the sewers rate of the district, and have paid all sewers rates due from them at the time of their election : (2) Each elector shall vote according to the following scale ; that is to say : If the property in respect of which he is entitled to vote be rated Land Drainage Act, 1861. l-o:; upon a rateable value of less than fifty pounds ho shall have one vote ; rr such rateable value amount to fifty pounds and be less than one hundred pounds he shall have two votes ; If it amount to one hundred pounds and be less than one hundred and fifty pounds be shall have three votes ; If it amount to one hundred and fifty pounds and be Less than two hundred pounds ho shall have four votes ; If it amount to two hundred pounds and be less than two hundred and fifty pounds ho shall have five votes; If it amount to two hundred and fifty pounds ho shall have six votes ; If it amount to five hundred pounds and be less than one thousand pounds he shall have eight votes : If it amount or exceed one thousand pounds he shall have ten votes. 70. Subject to any provisions to the contrary that may be made by the Mode of election Provisional Order constituting the district, the mode of electing members of "/Drainage , ° Boards, and Drainage Boards, and the proceedings of Drainage Boards, shall be con- proceedings dmtcd in manner directed by the schedule annexed hereto. thereof. 71. The provisions of the Commissioners Clauses Act, 18-17, with Certain respect to — provisions of F 104 11 Vic. c. 16, (1) The contracts to be entered into and deeds to be executed by ' the Commissioners ; (2) The liabilities of the Commissioners, and to legal proceedings by or against the Commissioners ; (3) The appointment and accountability of officers of the Com- missioners ; (4) The accounts to be kept by the Commissioners ; (5) The giving notices and orders ; shall be incorporated with this part of this Act; and in the construction of this part of this Act and the said incorporated provisions, Part II. of this Act, and the Act of Parliament confirming the Provisional Order, shall together constitute " the Special Act." Part III. Power of Private Owners to procure Outfalls. 72. Any person interested in land, who is desirous to drain the same, Application for and in order thereto deems it necessary that new drains should bo opened ou * fal \ t0 . adjoining through hinds belonging to another owner, or that existing drains in lands owner. belonging to another owner should be cleansed, widened, straightened, or D D 2 |u| 24 & 25 Vic. c. L33. (lode of n application. A.s 3en1 i 'i adjoining owner. Record of assent of otherwise improved, may apply to such owner, who is hereinafter referred fco as the adjoining owner, for Leave to make such drains or improvements in drains through or on the Lands of such <>w ner. 73. Any such application aa aforesaid shall be by notice in writing, under the hand of the applicant, and shall be served on the owner, and also on the occupier, if the owner be no! the occupier, in manner in which notices arc required to be served on owners and occupiers under the first pari of this Act. The aotice shall state the nature of such drains or improvements in drains, be accompanied by a map, on which the Length width, and depth of the proposed drains or improvements in drains shall be delineated, and shall further state the compensation, if any, which the applicant proposes to pay. 74. The adjoining owner many, by deed under his hand and seal, assent to such application, upon such terms and on payment of such compensation as he may require, and any assent so given shall be binding upon till parties having any estate or interest in the land, subject to the following pn>\ isions : — lstly. That any arrangement entered into by any adjoining owner under any disability or incapacity, or not having power to assent to such application, except under the provisions of this Act, shall not be valid unless the same is approved by two surveyors, one of whom is to be nominated by the applicant, and the other by the adjoining owner; and each of such surveyors, if they approve of the arrangement, shall annex to the document containing the same a declaration to that effect, subscribed by them. 2ndly. That any compensation to be paid by the applicant to the adjoining owner in cases where such owner is under any dis- ability or incapacity, or has not power to assent to such appli- cation, except under the provisions of this Act, shall be applied in manner in which the compensation coming to parties having limited interests, or prevented from treating, and not making title, is applicable, under "The Lands Clauses Consolidation Act, 1845." 3rdly. That any occupier or person other than the owner interested in the lands shall be entitled to compensation for any injury he may sustain by the making of the proposed drains or improve- ments in drains, so that the claim therefor be made within twelve months after completion of such drains or improvements in drains, the amount of such compensation to be determined in case of dispute, in the manner in which disputed compensation for land is recpiired to be determined by the said " Lands Clauses Consolidation Act, 1845." 75. The applicant shall forward to the clerk of the peace of the county, riding, or division of the county wherein the land is situate, the Land Drainage Art, L861. I""> deed containing the a i adjoining owner to the proposed drains,- adjoining or improvements in drains, who shall keep the same in hit < ird "' , ' 1 " 1 - of the proceedings between the parties. 76. The adjoining owner slm II be deemed to have dissented from the : application made to him if he Pail bo express his assenl thereto within a ri? ming 11 * owner. one month after the servii ootice of application on him; and in bhe event of sucli dissenl there shall be decided, bj two or more justices in petty sessions assembled, unless the adjoining owner require the same within such period of one month to be decided by arbitration, the questions following ; that is to say : (1) Whether the proposed drains or improvements in drains will cause any injury to the adjoining owner, or to the occupier or other person int i , he lands • (2) Whether any injury thai may he caused is or is not of a nature to admit of being fully compensated for by money : And the provisions of the first part of this Act relating to the decision of the questions therein mentioned shall apply to the decision of the questions mentioned in this section. The result of any such decision shall be as follows; that, is to say • Result of decision. (1) If the decision is thai no injury will he caused to the adjoining- owner, to the occupier or other parties interested in the hinds, the applicant may proceed forthwith to make the proposed drains or improvements in drains : (2) If the decision is that injury will be caused to the adjoining owner, occupier, or other parties interested in the lands, hut that such injury is of a nature to admit of being fully com- pensated by money, the justices or arbitrators shall proceed to asse>s such compensation, and to apportion the same among the parties in their judgment entitled thereto; and on payment of the sum SO assessed the applicant may proceed to make the proposed drains or improvements in drains: (3) If the decision is that injury will he caused to the adjoining owner, occupier, or other parties interested in the hinds, and thai such injury is not of a nature to admit of being fully com- pensated by money, the applicant shall not he entitled to make the proposed drains or improvements in dra 77. Where the compensation assessed by the justices or arbitrators Application of under the last preceding section i^ payable to any owner or other person compensation wno is under any disability or incapacity, or is not entitled to receive the owners under Same Eor his own benefit, such compensation shall l.e applied in the manner llls;ll ' lh, . v - in which the compensation coming to parties having limited interests or prevented from treating and not making title is applicable under " The Lands Clauses Consolidation Act 1845." 406 24 & 25 Vic. c. 133. Dntj' of arbitrators. Power of applicant to clear drains. 78. The justices or arbitrators, as the case may be, in the event of their approving of a scheme of drainage as proposed bj the applicant, or as modified by themselves, shall cause a map thereof to be prepared, and shall certify under their hands the correctness of such map ; and it shall be the duty of the applicant to forward the same to the clerk of the peace of the county, riding, or division of the county wherein the laud is situate, who shall keep the same in hisoilice as a record of t lie proceedings between the parties. 79. After drains have been opened or improvements in drains made, in pursuance of part iii of this Act, it shall be lawful for the applicant, his heirs and assigns, for ever thereafter, from time to time as it becomes necessary, to enter upon the lands through which such drains have been opened or improvements made for the purpose of clearing out, scour- ing, and otherwise maintaining the same in a due state of efficiency, and if such drains or improvements in drains are not kept so cleared out, scoured, and maintained in a due state of efficiency, the owner or occupier for the time being of the lands through or on which such drains or improve- ments in drains are made may clear out, scorn-, and otherwise maintain the same in a due state of efficiency, and recover the expenses incurred in such clearing out, scouring, or maintenance, in a summary manner, from the applicant, his heirs or assigns. 80. The owner for the time being of the land through or in which any a wnerT(f divert drain mav be opened, or improvements in drains made, in pursuance of drams. Part iii of this Act, may fill up, divert, or otherwise deal with such drains, or improvements in drains, on condition of first making and laying down in lieu thereof drains equally efficient ; and any dispute as to the efficiency of drains so laid down shall be decided by two or more justices assembled in petty sessions. Penalty for 81. Any person who wilfully obstructs any person making any drains obstructing or improvements in drains in pursuance of Part iii of this Act, and any injuring drains. l r . person who wilfully dams up, obstructs, or in any way injures any drains or improvements in drains so opened or made, shall for each offence incur a penalty not exceeding ten pounds, to be recovered in a summary manner. Power of Costs of application. Provision in I'llW c 'I I'llHIMW of natural outfall. 82. All costs, charges and expenses reasonably incurred by the adjoin- ing owner in respect of any application made in pursuance of this part of this Act shall be defrayed by the applicant. 83. Where any person is desirous in pursuance of this part of this Act, of constructing any drain by means whereof any brook, river, or othel natural watercourse will be diverted from its ordinary channel into any brook, river, or natural watercourse, he shall cause a copy of I he notice hereby required to be served on the adjoining owner to be published by advertisement once at least in each of three successive weeks in some local newspaper circulating in the district in which the drain proposed to be con- La/nd Dramage Act, 1861. M)7 structod i3 situate, and bo be served in manner in which notices axe required to be served under the firsi pari of bhif Aci (where no special of service is prescribed) on all owners of land abutting upon the brook, river or other natural watercourse into which the diversion is made, and situate within four mil poinl of junction, and shal] depi copy of the map hereby required bo accompany the notice served on the adjoining owner with the clerk of the peace of the county, riding, or division of the county wherein the proposed drain is situate; and it shall be lawful for any person being bhe owner of land capable of being injured i,s 1 1,,, proposed drain, within eighi weeks after i be first notice of the pro- posed drain appears in the newspaper, to Berve notice that he apprehends injury from such drain on the person proposing to make the same, and thereupon such owner shall be deemed to have dissented, and shall be entitled to the same rights and privileges under this part of this Act as if he were the adjoining owner. SCHEDULE REFERRED TO IN THE FOREGOING ACT. Part I. Rules as to election of Members of Drainage Boards. The Chairman of the Board of the previous year, or some person appointed by him, shall be the returning officer. If at any time, from any default of such Chairman as aforesaid, or from any reason, there is no returning officer, or such returning officer is unwilling or unable to act, the Inclosure Commissioners may, on the application of the Hoard, appoint a returning officer. The election of new members shall take place on the first Thursday, or on such other day as may be appointed by the Board, in September in every year, excepting the year in which the Provisional Order is confirmed by Parliament. On every occasion of the election of new members of the Board the returning officer shall convene a meeting of the electors for the purpose of such election, and shall give notice of such meeting, and of the time and place at which it is to be held — By advertisement in some one or more of the newspapers circulating in the district ; By causing a copy of such notice to be affixed to the outer door of the principal office of the Board. The returning officer shall preside and regulate the proceedings at such meeting. At such meeting as aforesaid any person or persons may, if ho or they consent thereto, be nominated by any elector, and seconded by any other elector, as a member or members of the Board I <>s U & 25 Vic. c. 133. [f more candidates are proposed than the number to be elected, a pol] maybe demanded, and shall be taken in manner hereinafter mentioned, Inn if not, or if no poll is demanded, a declaration by the rel arning offia r thai the candidates are elected members ol bhe Board shall be evidence of i In- fact. When a [ioll is demanded the returning officer Bhall direcl the tame be taken al such place or places within the districi on such day noi exceeding one clear day from i he daj appointed For bhe eleci ion as be may determine. Votes may be given cither personally or byproxy; a proxy shall be appointed under the hand of the appointor, bat he shall noi i» l entitled to vote unless the instrument appointing him was deposited al the <• the Board seven days before the daj of election at which such proxy proposes to vote ; hut no person shall be appointed a proxj unless he is a qualified elector. The poll shall be opened at nine o'clock of the forenoon of the appointed day, and shall close at four o'clock in the afternoon of the same day, except in the case of disturbance, when the closing of the same may be fixed to take place at such time as the returning officer din The poll at any place of voting may be closed al anj time before four of the clock it' one hour has elapsed during which no vote has been tendered at such place of voting. The returning officer shall cause to be entered in the polling books the name and address of every voter and the manner in which he votes. At the close of the poll the returning officer shall sum up the votes, and as soon as possible publish the names of the candidates elected as herein mentioned (1) By advertisement in some one or more newspaper or newspapers circulating in the district j (2) By affixing a list of such candidates to the outer door of the principal office of the Board. Whenever any day hereby appointed for any purpose happens to be a Sunday, the business so appointed to be done shall take place on the .Monday following. Pakt li. Rules as to Proceedings of Draina re Boards. 1. A Drainage Board shall meel together for the despatch of business, and shall from time to time make such regulations with respect to the [summoning, notice, place, management and adjournmenl of such meetings, and generally with respect to the transaction and management of business, as they think fit, subject to the following conditions : — That («) No business shall be transacted at any meeting unless at least Lmiil DruiiKKji .1-7, L861. tOd three members ore | i the commencement and clo e h business : ('<) Ntj order in expendil are ol \ hundred pounds shall be made bj the Board unless at thi month's previous no ing the work to be andi - or the other matter to which such order relate day l' the Tnclosure Commissioners for England and Wales. Some are taken from the " haws of Sewers," and Mr. Turing's work on the hand Drainage Act, 1861, while considerable assistance has been gained from an examination of documents and memoranda to which access has been had through the kindness of the officials of various local bodies throughout the country. 412 Forms. PAG] Assignmeui of Expenditor of Sewers ... ... ... 418 Warrani for Collector to accourd ... ... ... ... 419 Bond of a Collector or other officer for the due execui lob of his office 419 The same of his Sureties ... ... ... ... ••• 420 Oath of Collector and Defrayer 420 Same of Bailiff 420 Preeepl fco Bailiff to summon a Courl of Sewers ... ... 421 Warrant to the Sheriff to summon a jury ... ... ... 421 Appointment by the Sheriff of Clerk of Sewers as bis deputy ... ... ... ... ••■ ••• ... 421 Form of holding Court of Sewers ... ... ... ... 422 Oath of jury 422 Affirmation in lieu of oath ... ... ... ... ... 422 Foreman of jury oath ... ... ... ... ... 423 Presentment by jury of annoyances and defects, &c. ... 423 Presentment by jury of liability by custom to repair ... 423 Presentment by jury of liability, ratione tenurce, bo repair 424 Notice to be given of liabilities ... ... ... ... 425 Traverse of a presentment ... ... ... ... ... 426 Orders of Court of Sewers ... ... ... ... ... 426 Order to repair wall or bank ... ... ... ... 427 Order to remove stakes and piles in a river ... ... 427 Order upon presentment of a liability by custom where owner is in default ... ... ... ... ... 427 The same in shorter form ... ... ... ... ... 429 Order fco cleanse, scour, and repair banks of a stream ... 429 Order to remove weirs on a river ... ... ... ... 430 Not iee of Court to owner of land to pay eosts of repair, &c 430 Notice of rate 432 Laws and Ordinances of Sewers ... ... ... ... 432 Bye-law of Court of Sewers ... ... ... ... 434 Entry of minutes of Court ... ... ... ... ... 434 Kate and assessment for repairs of sewers ... ... 436 Order on particular person fco pay a tax ... ... ... 437 Forms. \\', PAGE Summons to show cause on non-payment of rate ... ... 437 Wnrrani bo take distress for a tax and soil goods... ... 437 Same in another form ... .. ... ... ... 438 Decree and sale of lands by Commissioners for paymenl of lots and charges ... ... ... ... ... 438 Keply by Inclosure Commissioners to application for lea ve to mortgage rates ... ... ... ... ... 440 Form of mortgage security under 3 & 4 Will. IV. c. 22, s. 42 440 Form of transfer of mortgage under 3 & 4 Will. IV. c. 22, s. 43 441 Form of mortgage security for money borrowod for general purposes under 4 & 5 Vic. c. 45, s. 5 ... ... ... 441 Form of transfer of same under 4 & 5 Vic. c. 45, s. 6 ... 442 Petition under Land Drainage Act, 18G1 (24 & 25 Vic. c. 133), to Inclosure Commissioners for Commission of Sewers ... ... ... ... ... ... I! <2 Petition under Land Drainage Act, 18G1 (24 & 25 Vict. c. 133), to Inclosure Commissioners for Drainage district ... ... ... ... ... ... ... 443 Petition to Inclosure Commissioners for leave to apply Lands Clauses Act, 1845 ... ... ... ... 444 414 Forms. TABLE OF FORMS, NOTICES, ORDERS, &c. Writ of " Dedimus Potestatem.'" (a) VICTORIA, by the graoe of God of the United kingdom of Great. Britain and Ireland, Queen, Defender of the Faith, to our trusty and well- beloved . . . greeting. Whereas a Commission of Sewers issued and granted by ns on the day of in the year of our reign for the limits of , and whereas by an Act passed in the 25th year of our reign entitled a law for , it is amongst other things enacted that the said Act shall include any Commission of Sewers for the time being in force, whether such Commission is or is not granted in pursuance of the said Act ; and whereas it is also by the said Act enacted that a Commission of Sewers once issued shall be deemed to continue until such time as it may be suspended by us, and that we may from time to time, by writing under our sign manual, fill up any vacancies that may arise in the body of Commissioners assigned by any Commission of Sewers; and whereas since the date of the said Commission several vacancies have occurred, by death or otherwise, in the body of Commis- sioners thereby appointed ; and whereas a petition has been presented to our Secretary of State for the Home Department by certain members of the said Commission praying that wo would be graciously pleased to appoint you to fill up the vacancies in the said body of Commissioners of Sewers; now know ye that we being satisfied of your fitness and ability have appointed by these presents, in pursuance of the powers vested in us by the said recited Act, and do appoint you respectively to execute the office of Commissioner of Sewers for the several places in the above recited Commission of Sewers for the (limits). Given at our Court of the day of 188 , in the year of our reign, by her Majesty's command. (W. V. Harcourt.) Writ for taking the Declaration for Sewers. (In accordance with 23 Hen. VIII. c. 5, s. 5.) VICTORIA, &c. To our beloved and faithful [the mayor, recorder, aldermen, steward, town clerk and sheriff of the city of ; and the chairman and clerk of sewers for the time being of the Court of Sewers] greeting. Know ye that we have given you jointly and severally power and authority to take the declaration of the Commissioners nominated and appointed for sewers in certain limits in our county and city of , according to the form of a certain schedule to this our writ annexed. And, moreover, we give to you and every of you power and authority to take the declaration of every of you according to the form of the aforesaid schedule. And therefore we command von that you take the (o) This is granted on application to Crown Office of House of Lords. Forms. 415 said declaration, and when yon have so taken them that you certify as bhereon in onr Chancery ander your seals, or the seal of "tie of yon. disi inn iv and openly, wit aont dela remitting to ns this writ. Witness ourself at Westminster, the day of 18 . (Signed) To onr beloved and faithful and others, or any one of them. A writ for taking the declaration of Commissioners for Sewers. Declaration for Commissioner of Sewers (a). YE shall declare that you to your cunning, wit and power shall truly and indifferently execute the authority to you given by this Commission of Sewers for whieh you are nominated a Commissioner, without any favour, affection, corruption, dread or malice to be borne to any manner of person or persons, and as the case shall require ye shall consent and endeavour yourself for your part, to the best of your knowledge and power, to the making of such wholesome, just, equal and indifferent laws ami ordinances as shall lie made and devised by the most discreet and indifferent number of your fellow Commissioners for the due redress and reformation and amendment of all and every such things as are contained and specified in the said Commission, and the same laws and ordinances to your cunning, wit and power, cause to be put in due execution without favour, meed, dread, malice or affection. Oath of Commissioners of Sewers, under 23 Hen. VIII. c. 5, s. 5 (of office). TE shall swear, that you to your cunning, wit and power, shall freely and indifferently execute the authority to you given by this Commission of Sewers, without any favour, affection, corruption, dread or malice, to be borne to any manner of person or persons ; and as the case shall require, ye shall consent and endeavour yourself for your part to the best of your knowledge and power, to the making of such wholesome, just, equal and indifferent laws and ordinances as shall be made and devised by the most discreet and indifferent number of your fellows being in commission with you, for the due redress, reformation and amendment of all and every such things as are contained and specified in the said Commission ; and the same laws and ordinances, to your cunning, wit and power, cause to be put in due execution, without favour, meed, dread, malice or affection, as God help you and all saints. Oath of Commissioners of Seweis, under 3 8f 4 Will. IV. c. 22, s. 3 (of qualification) (b). I, do swear [or, being one of the people called Quakers, do solemnly affirm], that 1 truly and bond fide am in my own right [or in the (a) This form slightly varies from tho original in 23 Hen. VIII. c. 5, s. 6. (6) A declaration to the like effect of this oath may be substituted (31 & 32 Vic. C 72, s. 12). Hi; Forms. right of my wife] in the actual possession and enjoyment of [or in the receipt for life, ' the rents and profits issuing ou1 of lands, tenements or hereditaments, situate in thee of freehold or copyhold tei eld for a term of not less than sixty years absolute, or de with a life or lives, of the clear yearly value of one hundred pounds above repri i Id for the unexpired i of years, originally granted for years, of the clear yearly value of two hundred pounds above reprizes; [or am heir apparent of , who, to the best of my knowledge, is seised of freehold or copyhold lands, tenements or hi its, situate in the county 7 of , of the clear yearly value of two hundred pounds above reprizes | ; [or am agent of , who, [ or which], to the best of my knowledge is seised or possessed in his or their own right] [or in the right of his wife] of freehold or copyhold lands, tenements or hereditaments, situate in the county of , of the clear yearly- value of three hundred pounds above reprizes. So help me Cod. . Or, in ing a Quaker, omii the words, So help me God. ] Writ of Attendance at Seivers. VICTORIA, &c— To the sheriff of the county of greeting. Whereas, we, by our letters-patent, have assigned our beloved and faithful and others in our same letters-patent, specified our justices to supervise and look into the sewers, bridges, calcies and ditches in certain limits in the said county, and to do and execute all other things in the same letters-patent contained and specified as in the same letters more fully is contained. We command you that at certain days and places, which the same our justices in the form aforesaid shall make known to you, you cause to come before them so many and such good and lawful men of your bailiwick, as well within liberties as without, by whom the truth of the matter in the premises may be the better known and inquired into and have you there this writ. Witness, &c. To the sheriff of the county of . Writ of attendance at sewers. Notice convening a General Court. SEWERS, LEVELS, OF, &c— We, whose hands are hereunto set and seals affixed, Commissioners of Sewers, and all of us (he quorum acting in and for i he levels within the limits of the several parishes of [here describe], in the county of , with all other marshes, meadows and oozy grounds within the limits aforesaid, in the said county, or on the borders or confines of the same named and appointed in and by a certain Commission of Sewers, duly issued under the Great Seal Forms. 117 of Greai Britain to us and others therein named directed, bearing date at Westminster the day of , in the year of the reign of her present Majesty Queen Victoria, do hereby, in exercise of the powers and authorities to ns given, or in its vested, under and by virtue of the said Commission, and nf the laws now in force relating to Be appoini a meeting of the said Commissioners, to be 1ml den at on , the day of , at o'clock precisely, for the purpose of receiving the report [here insert the officer's report, presentment of jury, or other business, as the case may be] touching any wants of reparation and amendment required to be done to any of the works or defences under the jurisdiction of the said Commissioners, by reason of [here state if special circumstances require], and of transacting the general business of the Commission, and of making, enacting, decreeing, constituting, and decreeing constitutions and ordinances, matters, and things touching till or tiny part of the said levels, as may be necessary in and about the said premises. Given under our hands and seals this day of ,188 . .1. C. E. a. i. K. B. (L.S.) D. (us.) F. (L.S.) H. (L.S.) J. (L.S.) L. (L.S.) Notice convening Special Court. [This should be sent in duplicate to each acting Commissioner.] SEWERS, LEVELS OF .—We, A. B. and C. D., two of the Commissioners of Sewers for the levels within the limits of the several parishes of , in the county of , do hereby, in pursuance of the 3 A 1 Will. IV. c. 22, convene a special meeting of the said Commissioners, to be holden at the , in the said county of i on , the day of , instant, afc o'clock, for the purpose of considering whether any and what orders shall be made upon any person or persons relative to the state of the sea-walls (insert the description of work or defence) situate upon and other places adjoining or adjacent thereto within the said levels, which are reported to us to be in a verj dangerous and alarming slate, the same having been recently in part much reduced and broken through by force of an unusually high wind and tide (describe specially), and imminent danger being apprehended to the said levels by reason thereof, and also generally to take such proceedings as shall be deemed most expedient and proper in and about the premises. Given under our hands and seals this day of , 188 ■ I- B. ( t .s.) CD. (b.s.) E E 418 Forms. Assignment of a Surveyor of Sewers. WE, A., /■'.. '.. D . /.'. P., &c, esquires, Her Majesty's Commissioners of Sewers for the county of, &c, do, by virtue of the statutes of sewers, and of the power to us thereby given, by this our order under our hands and seals, assign and appoint L. A., of, &c, surveyor of the walls, banks and sewers within the level of, &c, in the said county, to oversee, survey, inspect into, and take care of the reparations of the same from time to time, according to the orders and directions of us, or any of us, or any other Commissioners of Sewers for the said county; and also to present the defects and decays thereof, during our will and pleasure, or for and during the space of, &c. Given, &c. Appointment of a Bailiff of Sewers. WE, A., B., C, D., E., F., &c , esquires (six), Commissioners of Sewers within the county of, &c, aforesaid, do hereby clejiute, assign and appoint T. D., of, &c, to be our bailiff of sewers for the level or limits of, &c, to execute all warrants, precepts and summonses to him directed by us, or any of us, or any other Her Majesty's Commissioners of Sewers for the said county, relating to the reparation, amendment and reformation of the walls, banks and sewers there, pursuant to the laws and statutes in that case made. Given, &c. Appointment of a Collector of Sewers. WE, .'1., B., C, D., E., F., &c, esquires, Commissioners of Sewers, &c, do hereby assign and appoint A. T., of, &c, our collector and receiver, during our will and pleasure, to collect and receive all money, by us or by any other of Her Majesty's Commissioners of Sewers for the said county, rom time to time ordered and directed to be levied, by rate and assess- ment, or otherwise, on all owners and occupiers of lands within the level of, &c, and to pay over the same to B. M., our expenditor appointed ; he, the said A. T., rendering to us, or some of us, a just, true and perfect account of all such money by him collected and received within the said level, when thereunto required by us, or any of us, or yearly, &c. Given, &c. Assignment of cm Expenditor if Sewers. WE, A., B., C, D., E., F., esquires, Commissioners, &c, do, by virtue of the authority to us given by the laws of sewers, nominate, assign and appoint 11. ill., of, &c, gent., expenditor, to pay, disburse and expend all money raised and levied by our rate and assessment, within the level of, &c, on all owners and occupiers of lands, &c, chargeable towards the Forms. Il'.i reparations and amendment of 3ewer and bj him had and recer and Prom our collector appointed; 30 a be the said /.'. If., do and shall from time to t imp. when therennto required, yield, render and delivei us a i rue and perfed accounl and accounts of ;ill money bj him thus pai for and towards the reparations above mentioned. Given, &c. .1 Warrant or Order for a Collector to account. To T. D., Bailiff of Sewers for the Level of, &c. WHEREAS we have appointed A. T., of, &e., our collector of sewers within the level of, &c, to collect and receive all money rated and to be levied on the owners of lands, &c, towards the repairs of the banks, walls and sewers therein, he, the said A. T., from time to time accounting with us for the same when thereunto required: These are therefore to command you forthwith to give notice to the said A. T. personally to be and appear before us at, &C, on, &c, next, to give and render unto us a true and perfed accounl in writing of all money by bim received, of all and every person and persons, for and towards the reparations aforesaid, and of all other things relating to his office of collector; wh'ch he, the said A. T., is hereby ordered to do at his peril. Given, &c. Bond of a Collector or other officer for the due execution of Ill's .;/;;'-• . WHEREAS at a Session of Sewers for, &c, on the above bounden, J. Hutchins was duly appointed by Her Majesty's Com- missioners of Sewers, acting for aforesaid, to the office of one of the collectors to the said Commissioners, by virtue of which said office, he the said J. Hutchins will be entrusted to receive several of the rates and assessments made by virtue of the Commissioners of Sewers, for the limits aforesaid, for and in respect of divers common sewers within the limits of the said Commissioners ; now the condition of the above-written obligation is such that if the above-bounden J. Hutchins do, and shall, from time tot ime, and at all i ime hereafter, during the time ho shall continue as such collector as aforesaid, in all things faithfully and diligently use his host and utmost endeavours to collect, get in and receive all and every such rate and rates, sum and sums of money as shall from time 10 time lie given him in charge bj the said Commissioners of Sewers to collect, get in, and receive; and also if the said ,l,,i, 11 Hutchins do, and shall from time to time, and at all time hereafter, render a just and faithful accounl to the said Commissioners of Sewers, or to their clerk, of all such sums of money as have been E £ 2 420 Form already collected, gol in and received, or which Bhall ai any time hereafter be collected, gO< in and received by him, the said .1. Hutchins, upon or by virtue of any rates or assessments, or otherwise howsoever, for or on account of such Commissioners of Sewers ; and also do and shall from time to time, and at all times hereafter, well and truly pay or cause to be paid unto the said Commissioners of Sewers for the time being, for the limits aforesaid, or unto their treasurer or treasurers for the time being, or until such dt her person or persons as the said Commissioners shall from time In time order or appoint, all such sums of money, rates, and assessments already got in and received, or which shall at any time or times hereafter be collected, pit in, and received by the said J. Hutchins ; and also do and shall well, truly, justly, and honestly in every respect behave himself in the said office of collector, then the above-writt en obligation in he void and of none effect, otherwise to be and remain in full force and virtue. Bond of Sureties for a Collector and others. KN< »W all men by these presents, that we, C. D. («), of in the county of , and E.V. (a), of , in the connty of , are held and firmly bound to (1. H., of in the connty of , Clerk of Sewers for the Commission, for the limits of in the sum of £ of lawful money of Great Britain, to be paid to the said G.H., his executors, administrators, or assigns, for which payment to be well and truly made we hind ourselves, and each of us binds himself for and in the whole, our, and each, and every of our heirs, executors and administrators firmly by these presents. Sealed with our seals. Dated this day of , in the year of our Lord, one thousand Oath of the Collectors and Defrayers. YOU shall swear that you will truly levy, collect and dispose, and also account for all assessments imposed by the lords, bailiff, and twenty-four jurors, or I he greater pari of them ; and in like manner, of all watergages within the precinct of the said marsh, and before the lords of the said towns, if they will be present. Oath of the Bailiff. Y., of, Ac, hath lately, within two months last past, erected a flood-gate in and upon the river, called. Arc, to the great impediment and hindrance of the current of the said river, which sometimes overflows its hanks thereby ; and that the lands and ground of and belonging to, &c, damnified and injured by the same. And they also say upon their oaths that the wall or bank called. &c., in the said county, is very ruinous and detective, so as to let in the water upon the lands of, &c. And that'the said defects have proceeded from the negligence and default of, Ac., and that the said, &c, of right ought to make good the repairs thereof. [Or that. &c, who holds lands and grounds within the parish and county aforesaid, are lit persons to be chargeable to and with the reparations aforesaid.] Presentment by Jury of liability by custom to Repair. SOMERSETSHIRE TO WIT.— And the jurors aforesaid, upon their view and oath aforesaid, do present that a certain wall [here specify the particular work or defence] situate and being in the parish of and fronting on certain lands called in aforesaid, the property of one .!. />'., of , in the county of , there running from to for the space of or thereabouts, and particu- larly on the daj of . in the V car of was, and continually thenceforth hitherto hath been and still is, in a ruinous ami defective state and condition for want of due reparation and amendment thereof, insomuch that there is immediate danger of the w liters flowing in upon the lands within the said Levels. And the jurors aforesaid, upon their oath aforesaid, do I'urt her presenl that such ruin. his and defective state ami condition of the same wall I here describe the work in question] hath arisen and proceeded from the negligence and liM Forms. default of the said A. B.. in not repairing and amending the same Prom time to time as he ought to have done. And the jurors, &c, do further present that all persons having lands within the levels aforesaid might have hurt, loss and disadvantage by reason and in consequence of the ruinous and defective state and condition of the said | here describe], and that there is imminent and immediate danger of the waters Bowing In upon the lands within t he said levels unless the said [here describe] he forthwith repaired ; and the jurors. Arc, do further present that the owners for the time being of called , situate, lying and being at . in the said county, containing by estimation or thereabouts, by reason of an ancienl custom from time whereof the memory of man is not to the contrary, the said [here describe the work] have been accustomed to repair and amend, and of right ought tn have repaired and amended, and still of right ought to repair and amend when and as often as occasion hath required and shall require, so as to prevent the waters from flowing in upon the lands within the levels aforesaid, and that the said A. B., on the day and year last aforesaid, and from thence continually hitherto hath been and still is owner of , and by reason thereof, and of ancient custom aforesaid, during all that time of right ought to have repaired and amended, and still of right ought to repair and amend when and as often as occasion hath required, and shall require the said [here describe the work, giving, if possible, the numbers on the level survey] so as to prevent the waters flowing in upon the lands within the levels aforesaid, and that the said A. B. of right ought forthwith to make good the repairs thereof. [Where the Commissioners, in consequence of owner's neglect, arc going to do repairs themselves, continue.] And the jurors aforesaid, upon their oath, &c, do further present that the cost and charges of making good the repairs, &c, in such manner as they ought to be made good, would amount to the sum of £ • [Here follow signatures of jury presenting.] Presentment [wider s. 13, 3 8f 4 Will. IV. c. 22] by Jury of liability, " Batione tenurce" (a). AND the jurors aforesaid, upon their oath, &c, do further say and present that the several persons and bodies corporate 4 , mentioned and described in the schedule hereunto written, being the owners of the several lands and hereditaments set opposite to such their respec- tive names and descriptions in such schedule, and their ancestors and predecessors, owners of the same hinds and hereditaments, have, from time (n) This presentment is similar in form to that in R. v. Warton, 31 L. J. Q. B. 2C5, and in Tt. p. Fobbing Sewers, 53 L. J. Q. B. (to be reported). The latter case questions the validity of the presentment, but it has not been thought advisable to withdraw it, pending the decision of the Court of Appeal. Worms. b25 immemorial, been used and accustomed fco support, maintain, and repair, and of right ought to have supported, maintained, and repaired, a1 their ctive oosts and charges, the several and respective quantities of insert here description of work to be' done], within the limits and juris- diction aforesaid mentioned and se1 forth in schedule opposite the respective names and descriptions of the said several persons and I km lies eoi-por.it e. by reason of the tenure of their said respective lands and hereditaments, and thai the said several persons and bodies corporate named and mentioned in the 3everal schedules resp ire now the owners of the land and hereditaments therein set opposite fco such their is and descriptions, and by the reason of the tenure of the same lands and hereditaments respectively tire now liable, and ought, of right, to support, maintain, and repair, and keep in good and sufficient repair at their own respective costs and charges the several and resp quantities of here inserl description of work to be done] within the limits and jnrisdici ion at'.iresaid mentioned, and set forth in the several schedules respeel ively opposite to their respects e names and descriptions, and at the respective parts and places therein also mentioned and described, so as to prevent, &c, &c. sciiEnru-:. Owners Description I ll I. D ! . Quantity Description of Work. Notice to be given of L ' THE saiil presentments [of jury as to such liabilities] beingread and considered by this court, it is ordered thai the clerk to this court do cause due notice to he given to the several parties interested of the liabilities with which they respectively stand charged in and by the said present- ments, and that if they think themselves agrieved, they may traverse the same at the next adjourned court, to be hold. at for the levels aforesaid on the day of next, ai o'clock at the and that no traverse will be afterwards received. 426 Forms. Traverse of a Presentment. TO the Commissioners of , and nil others whom it may concern. A presentment made to yon on the day of by a jury therein named, amongst other averments, states that the [here describe property] either avoids damage or is benefited by a [here describe work] designated in such presentment as [here describe], and that A. B. and his tenants and others, their lands and tenements ought to be rated to level according to a schedule or valuation set forth in such presentment. I, A. B., hereby give you notice that I traverse such presentment, and say that such presentment is illegal and unjust in the whole and in every part of it, and I say 1 derive no benefit, nor avoid damage, from the [here describe work], and J further say that the rate is unequal, and therefore I put myself on a jury of my country and demand to be heard myself by my tenants, and also by C. D. E. &c, named in such presentment. Orders of the Court of Sewers. ORDERED by this Court that L. E., &c, do well and sufficiently repair and amend the wall of, &c, on or before, &c, next, under the penalty of twenty shillings. Ordered, that T. E. of, &c, do well and sufficiently repair, or caused to be repaired, the banks of the river of, &c, on or before &c, next, or shall be amerced, &c. Ordered, that A. D. do, on or before, &c, pay unto A. T., our collector, the sum of, &c, which he said A. D. is in arrear of rent on lease, towards the repairs of sewers. Ordered, that W. E., of, &c, do remove and take down the mill-dam and flood-gate by him lately erected on the river, &c, on or before, &c, under the penalty of, &c. Ordered, that E. B., Ac, do pay the sum of, &c, towards the reparation of the wall of, &c. Ordered, that B. M., expenditor, do pay the sum of, &c, to, &c, for several timber trees used in repairs, heard and determined by plaint. Ordered, that L. E. and his tenant of, &c, lands, be exempted and discharged from all taxes of sewers, they well and duly repairing the wall of, &c, aforesaid. Ordered, that L. A., surveyor, and B. M., expenditor of sewers, be fined for neglect of duty in, &c, made out upon oath by, &c, and they are accordingly fined five pounds each. Ordered, that .4. T. be fined lor his contempt in not obeying the order of this court, made for, &c, and he is accordingly fined two pound ten shillings. Ordered, that T. G., for giving abusive language to the court whilst sitting, and contemning the authority thereof, be fined thirty-six shillings and eightpence, and committed for one month. Forma. 427 An order to repair a Wall or Bank. WHEREAS the wall or sea-bank called) &c, leading from and to, &c.j is by means of the great violence of the sea of late become very ruinous, defective, and otri ofrepair,and not, fit, to resisl the rage of the waters, hut oftentimes letting in the same on the marsh and low grounds and land thereto adjoining, in the parish of, &c, aforesaid, to the very urea t detriment, and loss of all and every the owners thereof, in the grass there grown and cattle therein depastured, which are frequently destroyed : We, Her .Majesty's Commissioners of Sewers within the county, of, &c, afore- said, whose names and seals are hereto put and affixed, being willing and desirous to redress so greal a grievance, by virtue of the authority to us given, do order, direct, and appoint that G. H., of, &c, and J. K., of, Ac. or some or one of them to whom the same appertains, do, on or before, &c., next coming, cause the wall or bank above-mentioned to he well and sufficiently repaired, amended, and re-edified, with good and substantial materials, in all parts thereof where it shall appear that the same is in any ways defective, that the lands and low grounds in the said parish of &c, may be thereby secured from all inundations for the future ; and this the said G. H., J. K., &c, are to do at their perils. Given under our hands and seals, &c. Order to remove Stakes and Piles set up in a River. IT being presented by the jury returned to inquire of defaults in repa- ration of sewers, &c, iu the county of, &c, that T. M. had in the month of, &c, then past, set up and erected several stakes and piles in the river of. &c, in the said county, to the great, nuisance and annoyance thereof, which said V. .1/". is not to he found : We do therefore hereby order and em- power L. B.,who is likely to receive the most damage and injury by reason thereof, to remove and abate the said nuisance on or before, &c, next, as to him the said /,. B. shall he thought lit. Given, Ac. Order of Court of Sewers npon presentment of liability by custom wlirre owner in ilefu nil . IT is ordered by this court that all the works this day presented by the jurors to be done in respect of the I here describe the work] on the lands called in the said levels men! ioned in t he said presentment is and they are hereby made an order and decree of this court. And it is further ordered and decreed by this court that the bailiff [state officer in question] doth immediately sel abonl and use his l-'s Forms. utmost endeavour to complete 1 !i ■ repair of Iho said [hero describe the work] agreeably to the presentmenl of the jury, i'or the security of the lands lying within the said levels, and thai he doth par- ticularly attend in tlif firs! place to the repairing and making good and Becure Hindi as may be considered most necessary to bo in- stantly done to prevenl a breach and consequent inundation. Also J. S. is assigned and appointed Burveyor of the walls, ditches, banks, gutters, gates, and sewers within the levels aforesaid, to oversee, survey, and inspect the works anil reparations presented In the jury to bo done, and ordered and decreed by the Commissioners of Sewers for the said levels to he carried into immediate execution upon , and from time to time to report the state and condition of the said , and also of the progress made in repairing and making good the said , and completing t he works agreeably to such presenl incuts and to the clerk iii writ ing. li is ordered by this court that A. B. of , in the county of , do on or before the day of pay unto J. II., our collector and expenditor for the said levels, the sum of £ for and towards the repair of the [here describe the work], situate and being, &c, in the said county, within the levels aforesaid and fronting, Ac, the property of the said A. B., which [here describe the work] it hath this day been presented unto us of [state number ; three Commissioners a quorum (24 & 25 Vic. c. 33, s. 15) named in the Commis- sion of Sewers now in force for the said levels by the jurors present here in court ,the said A. B. of right ought to repair in respect of a certain farm [or, if necessary, state what property] called , situate, lying and being at aforesaid in the said county and now in his occupa- tion ; and we, the same Commissioners present at the said court, do accord- ingly tax, assess and charge the same A.B. in respect of the same farm, &c, with iiayment of the same sum. And it is ordered by this court that the said A. B. do, on or before the day of instant, pay unto oar said collector and expenditor the further sum of £ being the amount, of certain costs, charges and expenses incurred in the execution of the Commission now in force for the levels aforesaid, by reason and in consequence of the default of the said A. B. in repairing the said here describe the work] when and as he ought to have done, and of his disobedience of an order of the Court of Sewers in that behalf, on the day of , now last past . And we the Commissioners present at this court do accordingly tax, assess and charge the said A. />'., in respect of the said farm &c, with pay- ment pf the last-mentioned sum of £ Given under our hands and seals t he day of [Signatures of Commissioners and seals] Forms. 429 Order to repair. LINCOLNSHIRE TO WIT AUGUST, 1880. — At a Session and General Court of Sewers then held for levels. At this court upon reading so much of the presentment made at the General Court of Sewers for the Baid levels, holden on the day of 188 , as relates to the supporting, maintaining, repairing and keeping in good repair the [inseri description of wori within the Levels aforesaid, and the liability of the owner or owners for the time being of certain land called , in the palish of , to repair and amend a certain part of , within the limits aforesaid, situate and being upon the said lands al thejparl and for the space in the said presentments mentioned in relation thereto, and after taking the depositions on oath of A ./•'., the bailiff and surveyor to the said levels touching certain reparations and amendments now required to be done to the said by reason of the default of A. B., the owner of the said lands, in not having repaired and amended the said , and upon consideration thereof it is ordered that the said A. B. do well and sufficiently repair or cause to be repaired the in manner following (that is to say) : That he do, &c, &e., and that he do complete the repairs as above ordered on or before the day of , under the penalty of for neglecting or refusing so to do. Order of Gornmissioners to cleanse, scour (aid repair the banks of a stream. WHEREAS it appears unto us A. B., C. D., E. F., §rc, esquires, Her Majesty's Commissioners for the county of, &c., by views and survey by us made, that the stream or river called, &c, running through the parish of &c., and county aforesaid, is very defective, and incapable to carry off the water, and drain the grounds and lands adjoining, in the •winter season, when the land-floods from the hill there are very violent by reason of its being choked up with sand, weeds, trees, bushes and other impediments to the current thereof, and the many shoals therein, which stop and hinder the tree passage of the water, to the great damage and injury of the meadow grounds and pasture lands, not only in the said parish of, &c, lmt in the county of, &c, aforesaid in general, by frequent overflowings of the same, which we, taking into our consideration, do adjudge absi :essarj for the public good, and the aforesaid defects and annoyances should be amended and removed. And we, therefore, bj virtue of the laws and statutes in that case made, and the power and ao.1 horitj to us hereb] given do hereby order, direct and appoint, that the said stream, or river (tilled, Ac, running from, &c, to, &c, be cm or before the day, Ac, next in every part thereof , new dug, cut, made and cleansed in the best and most effectual 430 Forms. manner, from ;ill sand, weeds, trees, bushes, and other impediments and incumbrances, so as to be ten Peel wide and five feel deep in all parts of the same, between the pla aid. And we do also ordain and appoint that ( ; . / / ., ./ . A'., ,V<\. gentlemen, with whom they shall take to their assistance, do effeel and perform, or cause to be effected and per- formed, the work and repairs above directed in every pari thereof, according to this our order above mentionedfor doingofthe same; andthereupon empower the said Q. //.,./. ST., 2fc, to agree and compound with the owners of the soil of the land adjoining to t he said river, for effecting the purposes aforesaid, and the good of the public. Given under our hands and seals, this day and year, & c. A. B. CD. E. F., Sfc. An order to remove and abate weirs erected on the river. WHEREAS, L. B., of &c, hath latelj erected or caused to be erected. upon the river, &c, in the said county, certain weirs or dams, as found by jury at the Court of Sewers holden on, &c, last, to the great impediment and hindrance of the free passage of the said river, whereas the lands and grounds adjoining thereto, from, &c, to, &c, are oftentimes subjeel to great inundations, to the manifest damage and injury of the owners thereoi : We, Her Majesty's Commissioners of Sewers tor the said county of, &C, whose business it is to redress such grievances, do therefore herebj order and direct the said L. B., on or before, &c, next coming, to remove or pull down the said weirs or dams, by him the said L. B. so erected on the said river, of, &c, as aforesaid upon the pain of incurring the penalty of £ by statute, and being further punished by law for the same. Given, &c. Notice of Court of Sewers to Owner of Laud to pay Costs of Repair, Sfc. LINCOLNSHIRE TO WIT.— To .Mr. .1. 11., of , in the county of ( and all other persons whom it may concern. Whereas at a Court of Sewers for the lands within the limits of the several parishes of , and in the county of or in the borders and confines of the same, holden at , in bhe said county, ii was, amongst other things, presented unto us eight of the Commissioners of the said Levels then and there present by the oath of the jurors then present, that a certain [here state description of work], situate and being in the parish of aforesaid, in the said couuty, and within the Form*. 431 said levels, unci fronting on certain lands and marsli grounds otherwise called , the property of one C. D., in the county of , farmer (or other description), those running from for the space of ■ or thereabouts, and particularly the here describe], on the day of in the year 188 , was, and from thence continually hath been and still is in a ruinous state by and through the negligence and defaull of the said , and that the said , as owner of the afore- said 1'anu, lands and marsh grounds, situate and being at aforesaid, in the said county of , and within the levels aforesaid, by reason of ancient customs, from time whereof the memory of man is not to the contrary of right, ought to repair and amend the said , and make the same sufficient and secure, so that the waters may be kept and prevented from flowing in and upon the lands within the levels aforesaid, and that the said , of right ought to have made good the repairs thereof accordingly; and whereas by orders made at the same court it was ordered that the said should, on or before the day of instant, pay unto our collector and expenditor for the said levels the sum of £ , for and towards the repairs of the same [describe work], and also the further sum of £ the amount of certain costs and expenses incut-red in the execution of the commission then and now in force for the levels aforesaid, by reason and in consequence of default of the aforesaid in repairing the said when and as he ought to have done, and of his disobedience of the order of the Court of Sewers in that behalf made on the day of last; and we the said Commissioners, present at the said court held on the day of the date thereof, did a cord- ingly tax and charge the said in respect of the said messuage, lands and marsh grounds, with payment of the two several sums of £ and £ in respect of the said lands and marsh grounds. We do hereby order the said to pay unto the said , our said collector and expenditor, the aforesaid sum of £ , to be applied in repairing or amending the [here describe work] above-mentioned, and also the aforesaid sum of I' to be applied in satisfaction and discharge of the costs, charges and expenses above-mentioned, or on the said default therein, we shall decree the said messuages, lands and grounds to be sold to satisfy the same sums of which the said , and all persons claiming any estate or interest in the said messuage, lands and grounds through or under him, are to take notice. Given under our hands and seals this day of in the year of our Lord, 188 . Signal ares and seals.] [This notice should be also entered as an order of the Court of Sewer.-. 432 Forms. Notice of Bate. HUNDRED OF AND PARTS ADJACENT DISTRICT OF At the adjourned General Session of Sewers for the said Hundred and parts adjacent, holden at the » "> thc county of on the day of L88 , by and before the Esqs., Commissioners of Sewers for the said Hundred and parts adjacent (amongst others assigned), it was ordered that a rate or assessment of shillings in the pound be and the same was assessed and laid on the respective owners and occupiers whose names appear in the rate-hook as rated and assessed of all the lands, tene- ments and hereditaments within the said district of , according to the quantities and quality of the estates for defraying the costs, charges and expenses of maintaining and repairing the hank and other necessary works of sewers, also the costs, charges and expenses incidental to the procuring of plans and estimates, and also the clerk's costs and charges in carrying out the orders of the Commissioners affecting the said district, and that he collectors of the same. Now, therefore, we, the collectors appointed by the above order of sewers, hereby give you notice that you are rated and assessed in respect of lands, tenements and hereditaments particularly set out in the rate- book, which can be inspected at the office of the Clerk of Sewers, and we request that the amount of such rate or assessment, which is stated below, he paid to us on or before the instant. A. B., C. D., Collectors. 3rd March, 188 Laws and Ordinances of Commissioner* of Sewers. LINCOLNSHIRE TO WIT. — Laws and Ordinance made and ordained by A. B., C. D., K. /•'., Gr. //., &c, esquires. Commissioners of Sewers for the county aforesaid, at a Court of Sewers held, &c, to be kept and ob- served within the level of, &C, in the said county, for the well ordering and better government of the same. Imprimis. We ordain that all and every the owner and owners of goats, Sood-gates, and sluices, within the level aforesaid, do constantly keep the same, and every of them, up and open from, &c.,to, &c, yearly, and longer if : tl be found necessary, on notice given by our surveyor, or all and every the. owner and owners of such goats, flood-gates, and sluices shall be lined six shillings tor each default. Forms. 433 Item. We ordain that no person or persons whatsoever do cast, throw, or empty into any of the rivers, streams, or sewers within the limits of the said level, any sand, stone, dirt, earth or rubbish, to the interruption of the current of the said rivers and streams ; or do erect or set up any stakes, piles, or other things therein to the annoyance thereof, under the penalty of forfeiting, on conviction thereof, for every offence three shil- lings and fourpence. Item. We ordain that all and every the owner and owners of the lands adjoining fco the rivers of, &c, in the said level, do yearly, once in every year, within out 4 month after, &c., cut, or cause to be cat, the weeds, rushes, and docks in the said rivers, and cleanse the same rivers of and from all filth therein arising ; and that, on default thereof, they shall be fined sixteen shillings and eightpence. Item. We ordain that the owners and occupiers of the lands next to the ditches in, &c, do new dig the said ditches in the best manner once in every seven years, so as to be, &c, feet deep to carry off the water through the said lands, on pain of forfeiting thirteen shillings and fourpence for every neglect. We ordain that if any person or persons, who of right ought to amend and repair any wall or bank, shall on notice of our surveyor, neglect to do the same, then our said surveyor shall make good the said reparation at the charge of the level ; and the person neglecting it shall pay and forfeit double costs to the said surveyor for the common benefit of the whole level, toward repairing the walls and defences thereof. Item. We ordain that whenever any post or timber work belonging to the sewers shall yield or give way to the rage of the waters, that then the owner of the lands adjoining shall immediately do what in him lies to amend the same till our further orders be obtained therein, or he shall forfeit thirty shillings. Item. We ordain that if any time hereafter it shall so happen, that, by the violence of the sea or land-floods any wall, bank, or work within the said level, shall be broke down or overturned, or any breach made in the same, and then on notice of our surveyor, all and every person or persons having lands in the said level liable to inundations do and shall forthwith send labourers and workmen with proper tools, each owner of land one workman, to repair the same during the present exigency until we can make further order therein ; and if any shall make default herein and be convicted thereof by the testimony, &c, he shall be amerced thirteen shillings and fourpence. Item. We ordain that no person or persons, owners of lands, or others whatsoever, do at any time obstruct, hinder, or interrupt the reparation of any breach in any of the walls, hanks, or defences within the said level, whereby any damage, injury, or prejudice shall happen to the adjoining lands, on pain of forfeiting, Ac, according to the quantity of the offence, or forfeiting for every offence twenty shillings. Item. We ordain that if on any extraordinary and necessitous occasion, through some sudden inundation of the water, earth, stones, timber, or F F 434 Forms. other materials shall be wanting immediately to fill up the breach of any wall, bank, or other thing, that then any person or persons inhabiting in the level aforesaid taking with them our surveyor of sewers may go upon the lands nearest to the said breach and inundation, and then and there take and carry away to the place where required, any earth, stones, timber, or other things necessary for the same, till our further order can be had and obtained therein. Item. We ordain and require that all these laws and ordinances be well and duly observed and kept under the several pains, penalties, and for- feitures afore-mentioned, according to the tenor and true meaning thereof. Given, made, and ordained between us aforesaid Commissioners, under our hands and seals this day and year, &c. A. B. C. D. E. P. G. H., &c. N.B. — It may be necessary to proclaim these laws, and that all the offences, as they happen, be presented by the jury to inquire of defaults before the particular penalties are levied. Ordinance or Bye-law of Commissioners of Sewers. That no person or persons shall remove any [here insert description] or beach between the sea wall and low water mark of the river, or damage, deface, or remove any bridges, gowts, gate-posts, rails, &c, or any notice board erected or placed up by order of the Commissioners in any part of the level, or any of the boundary stones or landmarks placed on the sea-wall, or on any run or sewer to distinguish the shares of the different persons liable to repair or cleanse the same wall, run, or sewer ; or wilfully or clandestinely remove any stones, balk, or other thing placed in front of the sea-wall for the preservation thereof ; under a penalty not exceeding £5 above the value of the property removed or damaged, according to the nature and degree of the offence, and as the Commis- sioners before whom any complaint shall be made shall in their discretion think fit. By order, [Signed] A. B., Clerk to the Commissioners of Entry oj Proceedings of a Court of Sewers. LEVEL OF A. — At a Court of Sewers held the day and year, &c, Forms. 435 before A. B., 0. D., E. F., &c, esquires, Commissioners of Sewers for the said level and county, &c. T. D., Bailiff of Sewers, ap. -\ L. A., Surveyor, ap. f And made presentments of what A. T., Collector, ap. \ done in their offices. B.M., Expenditor, ap. The Jury sworn : — L. W. W. B. C. L. T. A. M. C. J. W. S. E. T. K. E. M. M. C. T. B. J. E. E. T., &c, Jurors. Imprimis. The jury aforesaid present that all manner of persons who have any lands subject to inundations, or who receive any benefit by the sewers, ought to be and appear at this court, and be ordered by the same. Item. The aforesaid jury upon their oaths present that L. E., of, &c, by the tenure of his estate, of right ought to repair the wall or sewer of, &c. ; and that he, the said L. E., is thus bound by reason of, &c, lands now in the possession of him, the said L. E. Item. The said jury present that E. W. by prescription, time out of mind, ought to repair the bank of, &c, he, the said E. W., and his ancestors, having always repaired and amended the same by means of his estate there. Item. The aforesaid jury present that T. E., of, &c, and those whose estate he hath, have, time beyond memory, had the use of the river of, &c, for their own private occasions ; and that the said T. E., by reason of the said use of the said river, is and ought to keep the banks of the same in l'epair. Item. The said jury present and find that A. D., of, &c, by indenture of lease or grant from, &c, is by covenant obliged to pay the sum or rent of, &c, yearly, towards the repairs of the walls or banks of, &c. And that the said A. D. is in arrear the sum of, &c. Item. The aforesaid jury present that the channel of the river of, &c, s choked up with weeds, sand and other rubbish ; and that the same hath happened through the default of E. L. of, &c, whom they do amerce ten shillings. Item. The said jury ijresent that W. E., of, &c, hath erected and set up a mill-dam on the river, &c, to the annoyance of the stream therein, and the great loss and damage of, &c, and they do amerce the said W. E. twenty shillings. Item. The aforesaid jury present that the wall and banks of, &c, are ruinous and out of repair, and not sufficient to oppose the violence of the sea; and that E. B., J. L., R. J., &c, by reason of, &c, lands, are fit and proper persons to be charged for the reparation thereof. F P 2 436 Forms. Item. The said .jury present thai the wall or bant of, &c, which should be repaired by, Ac, by a sudden tempesi having been overturned without any default in him, and be not being able to do the same, that the said wall ought to be new buill and erected by all and every the owner and owners of lands within the level. Item. The aforesaid jury present that whereas L. E. is obliged, by tenure of his lands, to make good the repairs of the wall of, &c.j aforesaid, that the said L. E. and his tenant ought therefore to be exempted from all taxes of sewers, they repairing the aforesaid wall. Item. The jury aforesaid present that L. A., Surveyor of Sewers, hath neglected to survey the works of, 4c, lately overthrown by wind, and to give directions for the reparations thereof, to the great damage of T. B. Item. The said jury present that A. T., of, &c, hath contemptuously refused to obey the order of this court, made in the case of, &c. A Bate and Assessment for Repairs of Servers. LINCOLN, SS. — A rate and assessment made on all the owners of lands in the parish and limits of, &c, in the said county, according the quantities and qualities of their estates, for the repairing, amending, and maintaining of the banks, walls, and sewers in the said parish and limits, for the year, &c. T. A., for his tenement and lands, containing 150 acres ... A. B., for his freehold messuage, called, &c. 0. D., for a leasehold tenement, and, &c, lands E. F., for 100 acres of meadow ground G. H., for 70 acres of pasture, &c. ... 1. K., for 30 acres of meadow L. M ., for 10 acres of, &c. N. P., &c. The above rate and assessment was this day, &c, assessed by us, six of Her Majesty's Commissioners of Sewers for the county of, &c, aforesaid ; and we do hereby authorise and empower T. D., our collector for the said parish and limits of, &c, to ask, demand, and levy the same of the several persons therein named, to be applied towards repairing, amending, and maintaining of the banks, walls, and sewers aforesaid, according to the statutes in that case made and provided. Given under our hands and seals, &c. £ «. d. 2 1 1 5 1 10 17 G 10 5 B. M. J. B. E. N. N. W. R. E. J. H., Commissioners. Forms. 437 An Order on a particular person to pay a Tax. WHEREAS on making a rate and assessment upon the owners of lands in the parish and limits of, &c, for the repairing, amending, and main- taining the sea-banks, walls, and sewers therein, for the year, &c, it appeared to us by the information of, &c, on oath, that one A. B. holdeth a certain messuage and twenty acres of land in the said parish and limits, &c, by the tenure and payment of, &c, towards the repairs and maintenance of the said banks and sewers, and the said A. B. having neglected to pay the said sum to our collector appointed to receive the same : We do therefore hereby order the said A. B. within, &c, days next after the date hereof, to pay unto, &c, our collector aforesaid, the aforesaid sum of, &c, to be applied in repairing, amending, and main- taining the walls, banks, and sewers above mentioned ; or on the said A. B.'s default therein, we shall decree the said messuage and lands to be sold to satisfy the same ; of which the said A. B. is to take notice. Given, &c. Summons to show cause on non-payment of Rate. To A. B. — You are hereby summoned and required personally to be at a Court of Sewers, for the , and other limits within the county of , to be holden by adjournment, at the in the county of , on the clay of , at o'clock in the afternoon, to show cause why you refuse to pay the sum of £ , assessed upon you as owner and occupier of certain hereditaments in the parish of , by certain laws and ordinances of sewers, made and confirmed at a Court of Sewers, holden by adjournment at the in aforesaid, on the day of , 188 , under the hands and seals of six Commissioners. Herein fail not. J. Warrant to take a Distress for a Tax, and Sell Goods. To J. S., our bailiff of sewers, and to C. D., our collector, and to each and every of them, and to all constables and peace officers. Whereas, at the Court of Sewers holden for the limits within the county of , on the day of , A. B., of in the county of , was assessed or taxed in the sum of £ , which sum it hath this day been proved to us, the undersigned, being six or more of the Justices and Commissioners of Sewers for the aforesaid limits, by the oath of , duly appointed to receive the same tax of £ , that the said A. B. hath neglected or omitted to pay when 438 Forms. demanded of him : These arc, therefore, to authorise and command you, and any or either of you, to levy the said sum of £ by distress and sale of the goods and chattels of the said A. B., together with the costs and charges of such distress and sale, rendering the surplus (if any) to the said A. B. Given under our hands and seals the day of 188 [Signatures and seals of six Commissioners.] Same in another form. To T. D., sewer bailiff or collector of the level of, &c. Whereas complaint hath been made unto us, that C. D. and E. F., of, &c, aforesaid, who are severally rated and assessed in the several sums of, &c, for and towards the necessary reparations and amendments of the banks, walls and sewers within the said level, have refused to pay the same when demanded, contrary to the laws in that case made : These are, therefore, to authorise and command you to levy the said respective sums of, &c, on the goods and chattels of the said C. D. and E. F. respectively, by distress and sale thereof ; and that you do employ the said money, when levied, towards the repairs above mentioned ; for which this shall be your warrant. Given, &c. A Decree and Sale of Lands by Commissioners, for Payment of Lois and Charges. THIS indenture made, &c, between A., B., C, D., E., F., &c, esquires (six), Commissioners of Sewers for the county of, &c, of the one part, and G. H., &c, of the other part. Whereas the said Commissioners, parties to these presents, having the execution of the laws of sewers, on, &c.j last past, made and ordered an equal rate, charge, and assessment upon all and every the owners and occupiers of lands in the parish and limits of, &c, in the county aforesaid, according to the quantities and qualities of the said lands, for and towards the reparation and amendment of the banks, walls, and sewers within the said limits, pursuant to the laws and statutes in that case made and provided; And whereas in and by the said rate and assessment, L. M., of, &c, aforesaid, was legally charged and assessed in the sum of, &e., as his proportionate lot and charge, towards the said reparations and amendments, for his messuage, tene- ment, and lands, called, &c, held by lease and grant from, &c, for the term of, &c., who on demand thereof, by, &c.,the Commissioners' collector lawfully authorised, hath absolutely and contemptuously denied and Forms. 439 refused fco pay the same; And whereas the said Commissioners, or some of them, are credibly informed that the said L. M. hath no goods or chattels whereout the said sum of, &c., may be any ways levied for the purposes aforesaid : Now, to the end that the said sum, &c, may be paid and applied to the uses above mentioned, in repairing the said sewers, This indenture witnesseth, that the said Commissioners, parties to these presents, by force and virtue of the statutes of sewers, and the power to them thereby given, and for and in consideration of the covenants and conditions hereinafter on the part and behalf of the said 67. H., his executors and administrators, to be performed and done, and also of five shillings of lawful British money to them the said Commissioners in hand paid by the said 67. H., the receipt whereof is hereby acknowledged, Have ordered, bargained, sold and assigned, and by these presents do, as much as in them the said Commissioners, parties to these presents, lieth, order, decree, bargain, sell and assign from the saidL. M., his executors, adminis- trators and assigns, unto the said 67. H., his executors and administrators, All and singular the said messuage or tenement, lands and premises above- mentioned, and all ways, waters, easements, profits, privileges, advantages, and appurtenances to the said messuage or tenement and lands belonging or appertaining, To have and to hold the said messuage or tenement, lands and premises to the said 67. H., his executors and administrators, for and during all the rest and residue of the said term of, &c, which he the said L. M. had, or ought to have, of or in the same, Upon condition, never- theless, that he the said G. H., his executors and administrators, do and shall yearly and every year, during the said term of, &c, pay or cause to be paid, unto the collector or collectors appointed, all such rates, lots, charges and assessments as 'shall be rated, assessed or imposed by the Commissioners of Sewers for the county of, &c\, aforesaid, for the time being, on the messuage or tenement and lands above mentioned, upon demanding the same, and on no other condition or trust whatsoever. And the said 67. H. for himself, his executors and administrators, doth covenant and grant to and with the said Commissioners parties to these present, and to and every of them, their executors, &c, That he the said 67. if., his executors and administrators, shall and will from time to time, and at all times during the said term of, &c, aforesaid, well and truly pay or cause to be paid unto the collector or collectors appointed to receive the same, all and all manner of rates, cesses, lots, charges, assessments and payments, which shall be rated, assessed, charged or imposed by the Commissioners of Sewers for the said county of, &c, for the time being on the messuage, tenement, lands and premises above mentioned, or any part thereof, towards the reparation of the said sewers, on demand thereof, including the assessment of, &c, aforesaid, without any default, denial, or neglect by him the said 67. H. y his executors, &c, according to the true intent and meaning of this present decree and assignment. In witness whereof the said Commissioners and parties have hereunto put their hands and seals, the day and year, &c. I 1 1 » Forms. Reply (a) by Incloswre Commissioners to application for leave to Mortgage Bates. Enclosure Commission (b), 3, St. James's Square, London, 18 1 am desired by the Enclosure Commissioners fco state, in reply to your letter of I he - that they cannot entertain an application for their sanction to the mortgage of the rates for an expenditure for " the improvement of existing works," or for "new works" — vide s. 16 of the Act of 1861— unless the notices required by s. 29 were given before the works were commenced. But if the expenditure is not more than £1,000, or for "the maintenance of existing works," they will be prepared to consider such an application, notices in such cases not being required. The application should be made under the signature of the quorum of the Board or their seal, or whatever may be the authorised mode of authenticating the decision of the Board, and should state the term within which it is proposed the sum to be borrowed should be paid off. The application should also state for which of the three classes of works described in s. 16 of the Act the money is required, and shortly the object and necessity for the proposed expenditure, and whether the works are authorised by the Acts relating to the Commission of Sewers. If the works are either "the improvement of existing works" or " new works," the notices required by s. 29 must be given before the works are commenced, and it will be observed that under the last paragraph of s. 31 the amount of the estimate given in the notice cannot be exceeded. It should further afford information as to the incidents of the rating, and whether the charge will be a tax on the owners or occupiers. A report from the engineer to the Commissioners, countersigned by the chairman of the board, and a tracing, showing generally the character and extent of the proposed works, should accompany the application. I am, &c, By order. Form of Mortgage Security, under 3 fy 4 Will. IV. c. 22, s. 42. By virtue of an Act passed in the third year of His Majesty, King William IV., intituled [here insert the title of this Act], we, the undersigned, being six of the Commissioners [here insert the general description of the Commission under which they act], in consideration of the sum of (o) The application in the first instance should be made by the clerk to the Commis- sion or Drainage Board, in a letter upon foolscap folio paper, containing a brief statement of the objects of t he application and the ground upon which it is made. (6) Now the Land Commission. Forms. H-l of lawful money of Great Britain to [here insert the name of tho receiver of i be (list riot] lent and paid by , do hereby certify that [here describe the particular lands, or, if by assessment, the valley, level or limit in which the lands are Bitnate, whioh are to be charged], are become charged with the repayment of the said sum, in instalments of one part on the day of in every year, together with interest on such part of the said principal money as shall remain unpaid from time to time at and after the rate of pounds per centum per annum, until the whole thereof shall he repaid; which sum so lent ami advanced by I he said is part of a capital sum of which, at a Court of Sewers lioldcn at on the day of last, was decreed and ordered to be taken up and borrowed for the purpose of [here briefly state the general cause or object of borrowing the money]. In witness whereof we have hereunto set our hands and seals the day of Form of Transfer of Mortgage, under 3^4 Will. IV. c. 22, s. 43. I [or we] A. B., of, &c, in consideration of the sum of to me this day paid by [0. D., of, &c], do hereby transfer the within certificate of charge, with all my right and title to the principal money thereby secured and now remaining due thereon, and to all the interest money now due or hereafter to become due, unto , his [her, or their] executors, administrators, successors and assigns [as the case may be]. Given under my hand and seal this day of Witness, Form of Mortgage Security for Money borrowed for General Purposes, under 4 8f 5 Vic. c. 45, s. 5. BY virtue of an Act passed in the year of the reign of Her Majesty, Queen Victoria, intituled [here insert the title of this Act] we, the undersigned, being six of the Commissioners [here insert the general description of the commission under which they act], in consideration of the sum of of lawful money of Great Britain to [here insert the name of the treasurer] lent and paid by ■ ( 1" hereby certify that the several general sewers rates I" be made and levied within [here insert the name of the district or level J under and by virtue of the said Act are become charged with the repayment of the said sum, n instalments of one part on the day ot in every year, together with interest on such part of the said principal money as shall remain unpaid from time to time, at and after the 442 Forms. rate of pounds per centum per annum, until the whole thereof shall be repaid ; which sum so lent and advanced by the said is part of a capital Mini of which, at a Court of Sewers, holden at on the day of last, was decreed and ordered to be taken up ami borrowed. In witness whereof we' have hereunto set our hands and seals the day of Form of Transfer of the above Mortgage, under 4 $" 5 Vic. c. 45 s. 6. I [or we] A.B., of, &c, in consideration of the sum of to me this day paid by 0. D., of, &c, do hereby transfer the within certificate of charge, with all my right and title to the principal money thereby secured, and now remaining due thereon, and to all the interest money now due or hereafter to become due, unto [his, her or their] executors, administrators, successors and assigns [as the case may be]. Given under my hand and seal this day of Witnesss, Petition of Proprietors to the Indosure Commissioners for a Commission of Sewers under the Land Drainage Act, 1861(a). IN THE MATTER OF THE LAND DRAINAGE ACT, 1861. TO the Inclosure Commissioners of England and Wales, the humble petition of the several persons whose names are subscribed hereto showeth — (1.) That the area of land inclosed by the boundary lines coloured on the map (b) accompanying this petition, and en- dorsed with the names of your petitioners, situate in the county of , comprises acres or thereabouts. (2.) That your petitioners arc proprietors, as defined by the above- mentioned Act, of land of more than a tenth part of the land within the said boundary lines, that is to say, of acres or thereabouts. (3.) That no Commission of Sewers has jurisdiction within the said area, or any part thereof (c). (a) The mimes of the petitioners should be affixed to the foot of the petition. (b) The map may be annexed or referred to in any manner that admits of being readily authenticated. The subscription or endorsement of the names of the whole or some of the petitioners is a ready mode of distinguishing. (<■) If Commissioners have jurisdiction within any part of the area, the petition must go on to state that they have had a special meeting, and assented. Forms. 443 (4.) That the said area is drained by the river , and the said boundary lines show the limits of the catchment basin of t he said river («). (5.) That the drainage of the said area is greatly impeded by reason of divers obstructions that exist to the course of the said river, and to the channels of the streams and drains leading into such river, and by reason of the want of an outfall for the waters running from the lands situate in the upper part of the basin, and the negligent way in which the main drains throughout the said area are maintained. (6.) That it would be greatly for the benefit of the property of your petitioners, and of the other proprietors of property within the said area, that a Commission of Sewers (or drainage district) should be issued, having for the limits of its jurisdiction the said area, or such other like area as may be thought expedient. (7.) That your petitioners are willing to give such security for the costs that may be incurred in or about the matter of this petition as may seem meet to your Honourable Commission. Your petitioners therefore humbly pray that you, the Inclosure Com- missioners for England and Wales, would be pleased to approve of the boundaries of the area proposed by your petitioners as the limits of the jurisdiction of a Commission of Sewers (or drainage district), and that you will be pleased to notify such approval to one of Her Majesty's Secretaries of State, in order that he may convey an intimation of such approval to Her Majesty, to the end that it may please Her Majesty to direct the issue of such Commission as aforesaid. And your petitioners will ever pray. [Signatures.] Petition of Proprietors to Inclosure Commissioners for the consti- tution of an Elective J>rainage District, under ss. 63 fy 64 of the Laud Drainage Act, 1861. IN THE MATTER OF THE LAND DRAINAGE ACT, 1861. TO the Inclosure Commissioners of England and Wales, the humble petition of t lie several persons whose names are subscribed hereto showeth — (1.) That the area of lands enclosed by the boundary lines coloured blue on the map accompanying this petition, and endorsed with the names of your petitioners, situate in the county of , comprises acres or thereabouts. (") This statement and the following one will vary according to circumstances. State anything to show that the issue of a Commission of Sewers would be beneficial. 444 Forms. (2.) That your petitioners are proprietors as defined by the above- mentkmed Act, of more than one-tenth in part of the land within the said boundary lines, that is to say, of acres or thereabouts. (3.) That the said area is not within any Commission of Sewers> cr of any borough, or of any district under the management of a Loci I Board of Health or Improvement Commissioners. (4.) Thai the said area consists at present of a moor watered by land springs, and in many parts boggy and unfit for cultivation. (5.) That the said area is in its nature fertile, and would be greatly im- proved by a combined system of drainage, whereby the said land springs might be cut off and the land rendered firm and dry. (6.) That it would be greatly to the benefit of your petitioners and the other proprietors of the property within such area, if the same were constituted a drainage district, and the superintend- ence of matters relating to drainage within the said area vested in a Drainage Board. And your petitioners are satisfied that the proprietors of more than two-thirds of the said area are in favour of the same being constituted a drainage district. (7.) That your petitioners are willing to give such security for all costs that may be incurred in or about the matters of this petition, as may seem meet to your Honourable Board. Your petitioners, therefore, humbly pray that you, the Inclosure Com- missioners for England and Wales, would be pleased to make a Provisional ( >rder declaring the said area to be a drainage district within the meaning of the second part of the above-mentioned Drainage Act, and further, to take all proper steps as soon as conveniently may be for the confirmation of tin' said Provisional Order by Act of Parliament. And your petitioners will ever pray, &c. Petition of Commissioners of Seivers to the Inclosure Commissioners for application of Lands Clauses Acts under s. 23 of the Land Drainage Act, 1861 (24 Sf 25 Vic. c. 133. {a) IN THE MATTER OF THE LAND DRAINAGE ACT, 1861. TO the Inclosure Commissioners of England and Wales, the humble petition of the Commissioners sheweth — That the jurisdiction of your petitioners as Commissioners of Sewers comprises, amongst other places, a large tract of land in the county of , situate within the catchment basin of the river (r;) This form is applicable to similar petitions by a Drainage Board. The petition should be in writing on folio foolscap paper. The names of the petitioners should be affixed to foot of the petition. Forms. 445 That t he tract of land above referred to is enclosed by lines coloured blue on the map (a) accompanying this pel it ion and ant benticated by the seal of your petitioners. That the drainage of the said tract of land would be greatly improved if a main drain (6) was cut in the course of the line marked red on the said map, and an additional outlet thereby afforded for the waters of the river , at the spot marked " A" on the same map. That, some of the owners of the funis required to be purchased for the purpose of constructing the said main drain have refused to sell the same unless compelled so to do by Act of Parliament. That plans and sections (c) of the said intended drains and works and plans of the lands required to be taken compulsorily accompany this petition and are authenticated by the seal of your petitioners. That your petitioners are prepared with evidence in support of the allegations of this petition, and are desirous that an inspector should, if your Honourable Board think it necessary, be sent to investigate the matter of this petition, and to report to your Honourable Board as to the expediency of your petitioners making the said intended drain and the advantages to be derived therefrom. Your petitioners therefore humbly pray that yon the said Commis- sioners would be pleased to make a Provisional Order empowering your petitioners to put in force, with reference to such parts of the land as are shown on the said plans to be required to be taken compulsorily, the powers of the Lands' Clauses Consolidation Act, 1845, in relation to the compulsory taking and purchase of land, and further, that you will be pleased, as soon as may be, to take all proper steps for the confirmation of such Provisional Order by Act of Parliament. And your petitioners will ever pray, &c. («) The map will be an ordnance or other similar map. (t) Here state the proposed works (<.■) These plans and sect ions should be prepared according to the model plan referred to in the Standing Orders of Parliament in force. Somersetshire Drainage Act, 1877. 447 APPENDIX C. SOMERSETSHIRE DRAINAGE ACT, 1877. (40 Vic. c. XXXVI.) PART III. Existing Liabilities. 59. It shall be the duty of the Commissioners, as soon as conveniently Liabilities to be may be after their final constitution, to proceed to ascertain, fix, determine, ascertained, J ' r > i > registered, and and commute as hereinafter provided, the liabilities (whether within the commuted. jurisdiction of the existing Drainage Boards or the Boards to be constituted under this Act) then existing of all owners, whether by themselves or their tenants, to cleanse, repair, build, maintain, or renew any rivers, water- courses, drains, sewers, ditches, banks, droves, bridges, sea-walls, walls, sluices, gates, hatches, or other outfalls for water, and defences against flooding, whether by reason of tenure, custom, prescription, or otherwise, and to enter the same in a register to be provided and kept for that purpose in manner and form according to Schedule C to this Act annexed, and here- inafter called the register of liabilities, which said register shall be kept at the offices of the Commissioners, and shall be open to the inspection of all owners, lessees and occupiers owning or holding lands within the juris- diction of the Commissioners at all reasonable times. 60. For the purpose of so ascertaining, fixing, determining and com- Notices to be muting the liabilities aforesaid, the following proceedings shall be served on " ' o r a persons deemed observed : — A notice in form according to Schedule B shall be served upon to be liable and all owners of land who by themselves or their tenants are deemed by the determined IsOaA Commissioners to be under any liability to do any of the works aforesaid, commuted. stating that on a day to be named therein, not being less than 28 days from the service of sncli notice, the Commissioners will take into consideration, with a view to ascertaining, fixing, determining and commuting the liability to which such person or persons is or are then liable, and staling that sufficient cause be shown to the contrary, the Commissioners will proceed to order that such person or persons be placed upon the register of liabilit iefi 448 Somersetshire Drainage Act, 1877. 40 Vic. C. xxxvi. in reaped of the liability specified in the notice aforesaid, and their lia- bilities commuted for such annual payment by way of rent-charge as in the opinion of the Commissioners may fairly represent the probable average annual cost (taking one year with another) of execnting and maintaining the respective works in a due state of efficiency, and on the day named in tin' i i tice aforesaid the Commissioners shall, if necessary, proceed to take evidence with a view to ascertaining, fixing, determining and commuting the liability of any such person or persons, and in case no sufficient cause to the contrary lie there shown, shall place such person or persons upon the register of liabilities in respect of the work or works so specified in the notice aforesaid : provided always that any person or persons aggrieved h\ any such order made by the Commissioners may appeal to the Court of Quarter Sessions in manner hereinafter mentioned. Where persons 61. In cases where the Commissioners are unable, either from want of liable cannot be ev j c | ence or other sufficient cause, to ascertain the person or persons liable ascertained . . r * Commissioners to execute any specific work, it shall be lawful for the Commissioners or Boards'mav District Boards, as the case may be, to execute the work themselves, and execute works, to defray the costs out of any moneys in their hands which would have been applicable to such a purpose if there had been no person liable to execute such work by reason of tenure, custom, prescription or otherwise : provided always that no such work shall be executed by the Commissioners or District Boards until the Commissioners have certified under the hand of their clerk such inabilities as aforesaid. Commissioners 62. In all cases where it would be necessary for the Commissioners and works'i'iithertii District Boards respectively to exercise the powers conferred upon them by repairable, fche last preceding section, if in the judgment of the Commissioners it would to become a ' he unfair, either owing to the large proportion of the work which would general charge, have to be borne out of the general funds of such Commissioners or District Boards respectively, under such last-mentioned section, compared with that which would have to be ascertained, fixed, determined and commuted under the 59th and 60th sections of this Act, or from any other cause to ascertain, fix, determine and commute such last-mentioned liabilities, it shall be lawful for the Commissioners (but as to all works not required for purposes of arterial drainage which would have to be executed within the area of any District Board by such last-mentioned Board, then onlj at the request and at the cost of such District Board) to order that all liabilities to build, repair, maintain or renew any drainage works by reason of tenure, custom, prescription or otherwise within that area shall, from a date to be named in the notice hereinafter mentioned, cease and determine, and thereupon such drainage works shall from the date mentioned in such notice be executed by the Commissioners and District Boards respectively, and the cost thereof defrayed in like manner as if there were no persons liable to execute such works : provided that before the Commissioners shall order any drainage works to become a general charge nnder the powers of this section, they shall publish for three successive weeks in some newspapers circulating within or near the area proposed to be effected by such order, a notice giving a general description of the drainage works which it is proposed to Somersetshire Drainage Act, 1877. 449 40 Vic. c. xxxvi. make a general charge as aforesaid, and also naming a day upon which all owners, tenants and occupiers of land may be heard before the Commis- sioners, and if upon the day named in such notice no objection shall be made, or if made be overruled by the Commissioners, then it shall be lawful for the Commissioners to make the order aforesaid, naming in such order the day on which all the liabilities aforesaid shall cease and determine : provided also that any person aggrieved by any order of the Commissioners in this behalf may appeal to the Court of Quarter Sessions in manner here- inafter mentioned, who shall have power to quash any order in whole or in part, or make any alteration or amendment in the same as shall seem just. 63. Any commutation made under the provisions of this Act shall be Nature of charged as an unusual rent-charge on the lands in respect of which the obligation existed at the time of the commutation, and any charge so created shall be recoverable by the Commissioners in the same manner in which the rent-charge is recoverable, and shall have priority over all incumbrances created, or to be created, by any proprietor of the lands on which the same is charged. 64. The record of any such charge as aforesaid shall be entered upon The record or the register of liabilities hereinbefore referred to, and a certified copy ]je ente red upor thereof, if demanded, be given to all persons whose liabilities have been so the register. commuted as aforesaid, and shall be signed by the clerk to the Commis- sioners, and shall be receivable in evidence in all legal proceedings. 65. Subject to the provisions hereinbefore contained as to commuta- Saving of 6xistin or tion of liability, the liability of any person whomsoever to defray or con- liabilities to tribute towards the expense, making, completing, altering, amending, or repair. maintaining any sewer or drain, or any walls or works for protecting the land against the force of the sea, or any river or flood, or doing any other works within the jurisdiction of the Commissioners or District Boards respectively, shall continue ; and the same may be enforced as if this Act had not passed, and the rates to be levied under this Act shall be made only for the purposes to which such liability does not extend. O G Report of the House of Lords. 451 APPENDIX D. EEPOET. [24ffc July, 1877.] BY THE SELECT COMMITTEE (a) appointed to inquire into the Operation of existing Statutes in regard to the Formation of and Proceedings by Commissioners of Sewers, and Conservancy, Drainage, and Eiver Navigation Boards ; — To consider by what means such Bodies may be more conveniently and inexpensively constituted, their Procedure improved, and their Powers enlarged, so as to provide more efficiently for Storage of Water, the Pre- vention of Floods, and the Discharge of other Functions apper- taining to such Boards ; and to report to the House. Ordered to Report, That the Committee have met and considered the subject-matter referred to them, and having examined a considerable number of witnesses in relation thereto, have agreed to the following Report : — I. — It is evident to the Committee, from the information which has been laid before them, that considerable damage has been caused in various parts of England by the prevalence of floods during the last winter, and that such floods have been more frequent and of longer duration in recent times than formerly. Among the causes which have been assigned for this state of things, the Committee find that prominence is given to the very general adoption of the system of subsoil drainage, owing to which a greatly augmented quantity of water is rapidly carried into rivers, and to the deterioration which is constantly taking place in the channels of the rivers themselves, whereby they are rendered inadequate to carry off the drainage of their respective watersheds. («) The following Peers formed the Committee :— Lord President (Duke of Richmond and Gordon), Duke of Bedford, Duke of Northumberland, Marquis of Salisbury, Marquis of Ripon, Earl of Sandwich, Earl Cowper, Earl Stanhope, Lord Monson, Lord Vernon, Lord Stewart of Garlics, Lord Meldrum, Lord Ker, Lord Pem-hyn, Lord Somerton, Lord Winmarleigh. G G 2 452 Report of the House of Lords. The Committee gather from the evidence that if the channels and out- falls of rivers be properly cared for, any water flowing into these rivers from the catchment basins of which they are the outlets, may reasonably be expected to be discharged by them in sufficient time to render unlikely any serious damage to agricultural lands by floods. It is the opinion of several witnesses of experience, that floods of moderate duration are not always prejudicial, but, on the contrary, have the effect of improving and fertilising grass lands by the deposit which they bring down, and that in such cases it is mainly when, owing to the insufficient arterial drainage, or other causes, flood waters are suffered to stagnate upon the soil for a lengthened period that injurious consequences are found to arise. One of the principal points to which the Committee have directed their attention has been the best means of preserving the channels and outfalls of rivers in such a condition as to suffice for the discharge, with reasonable facility, of the waters flowing into them ; and in order to arrive at a judgment upon this point, it has been necessary to inquire at some length into the manner by which the conservancy of rivers is at present regulated. II. — The first public statute which undertook to deal with river eon servancy, and that upon which all subsequent legislation in reference to this subject was founded, is the 23 Hen. VIII. c. 5. That statute provided for the appointment of Commissioners of Sewers, with very extensive powers for taking such measures as they might think proper for preventing floods and improving the state of rivers. These Commissioners were appointed by the Sovereign upon the recommendation of certain officers of State, and remained in office during the Eoyal pleasure. The particular mode of executing their duties was left very much to their own discretion, and the expenses which they might incur for works of repair, demolition, or improvement, were to be defrayed by the riparian owners, in proportion to the benefit derived from the works. Subsequent Acts defined and extended their powers, and in the year 1861 further provision was made for the drainage of agricultural lands by the Land Drainage Act, 24 & 25 Vic. c. 133, in which the representative principle seems for the first time to have been adopted as regards the choice of persons to deal with arterial drainage. This Act, however, related mainly to the drainage of land for agricultural purposes, and did not materially affect the constitution or functions of Commissioners of Sewers. It is generally acknowledged that those Acts have not worked success- fully for the prevention of floods ; and this seems to be owing partly to defects in the machinery provided for carrying the Acts into execution, and partly to obstructions caused by private legislation. As regards the lirst of these causes, .although very large powers of executing works and of rating have been conferred upon the persons charged with the execution of these general Acts, their duties have only been indicated in a vague and general manner ; and it further appears that certain powers are wanting which are essential for the maintenance of an Report of the House of Lords. 453 adequate system of drainage. In addition to this, the constitution of either a Commission of Sewers or an elective Drainage Board for any district is not compulsory, so that in many cases districts urgently in need of such bodies are without them. The principle of rating exclusively according to the benefit received is difficult of ajjplication, and is frequently found to work unsatisfactorily in practice. Moreover, owing to the existence of several distinct authorities for the course of a single river, conflicts have arisen which are fatal to the adoption of any uniform and comprehensive scheme for the conservancy of the river as a whole, and there is, more- over, an absence of responsibility, which may be held to account in a great measure for the present neglected state of several important streams. The difficulties which private legislation has placed in the way of any public system of conservancy are many and grave. It has been stated to the Committee that there are between 2,000 and 3,000 private Acts now in operation which relate to drainage, navigation, and matters of a similar kind ; and the interests of the several persons, or bodies of persons, in whose behalf these Acts were passed, are frequently found to conflict with the due exercise of the powers granted under the public Acts above referred to. This more especially applies to private Acts relating to canals and navigations, in many of which, while the main purpose of the particular Act has in great measure, or entirely, ceased, the duties imposed by it are still required to be discharged. Moreover, as the general Acts provide for the maintenance of the rights conferred by private Acts, Commissioners of Sewers and district Drainage Boards are power- less to interfere with such rights, however inconsistent with the public interest. There is a further obstacle, arising from liability ratione tenures for the maintenance of river banks. This liability, being in the case of many rivers distributed among a large number of riparian owners, can rarely be enforced with such uniformity as to make it thoroughly effective for maintaining the banks along the whole of the river at any one time. III. — The sufficiency of the main channel of a river may be affected by several causes ; such as a continuance of heavy rain within the area of the watershed, and by various natural and artificial obstructions, all tending to limit the capacity of the channel. With these causes the Committee believe that it is possible to deal, more or less, successfully ; at the same time rivers are found to differ so widely in their characteristics that in the opinion of the Committee it would be impracticable to prescribe any general scheme of conservancy which woitld be applicable to all rivers without exception. The particular measures therefore which should be adopted for kecpin<_; the main channel in a satisfactory condition must, the Committee think, be left to be determined by a consideration 01 the circumstances of each separate case. IV. — The Committee find that almost all the witnesses examined by 454 Report of the House of Lords. them are of opinion that in order to secure uniformity and completeness of action in dealing with eacli river, each catchment area should, as a general rule, be placed under a single body of Conservators, who should be respon- sible for maintaining the river from its source to its outfall in an efficient state, and in this view the Committee entirely concur. With regard, however, to tributary streams, the Committee consider the care of these might, in some instances, be entrusted to district committees, acting under the general direction of the Conservators; but near the point of junction witli the principal stream they should be under the direct management of the Conservators of the main channel, who should be a representative body, const ii uted of residents and owners of property within the whole area of the watershed. In some instances a tributary stream might be of such magnitude and importance as to require a separate Conservancy Board for itself. In these cases it might be desirable to vest in some authority the power of deciding differences which may arise between these co-ordinate bodies. Although the Committee are of opinion that means should be taken to ensure the appointment of a Conservancy Board for each watershed area, they consider that it should, in the first instance, result if possible from the application of persons having an interest in the district. Upon receiv- ing such application, the Department of Government, in whose province the matter may lie, should send an inspector to the locality, who should ascertain the necessities and capacities of the district, and suggest the area and proportions of taxation. After this inquiry a scheme should be framed by the department, and deposited in some public place or places in the district, and public notice should be given of its pnrport, and a time appointed for hearing objections to it. When the objections have been heard, the scheme, with such modilicat ions as may be deemed neces- sary, should be embodied in a Provisional Order to be submitted to Parliament for confirmation. The scheme should prescribe the constitution of the proposed Conser- vancy Board, and should provide for the repeal of the provisions in any local or other Acts, preventing or in any way interfering with the system of management contemplated by the scheme. V. — The jurisdiction of the Conservancy Board should include the power of removing obstructions, improving outfalls, and of deepening and dredging the bed of rivers, and such power of dealing with river banks and bridges, and of compulsorily acquiring land at a fair compensatory value as may be conferred upon them by provisional order. Duly limited powers of rating should be conferred upon them. The Committee are also of opinion that the Conservancy Boards should be enabled to execute the powers for the prevention of the pollution of rivers, conferred on local authorities by the Rivers Pollution Prevention Act. The removal of obstructions would frequently necessitate an interfer- ence with the prescriptive rights of millowners and others in respect of dams and weirs and millgates, and the Committee think that whilst such Report of the House of Lords. 455 rights should bo made the subject of compensation when requiring to be interfered with, great caution should bo exercised in dealing with them, as the evidence before the Committee points to the conclusion that weirs and dams, when constructed in a proper manner, are not necessarily prejudicial. The Committee are of opinion that it should be competent to the Con- servancy Board to take such steps, by arrangement or otherwise if necessary, as shall provide for the opening of millgates, in the event of flood or expected flood. Among the measures for averting floods which have been suggested to the Committee, that of embankment has taken a prominent place ; and if this were to be carried out in the manner proposed, it would occasionally be necessary for the Conservancy authority to interfere with private pro- perty along the sides of a river, and to restrict the manner in which the owners of such property could exercise their proprietary rights. The extent to which this might be done should be specially provided for by Provisional Order. Where the rights of the Crown or of public bodies are concerned, as, for instance, in any question of dealing for conservancy purposes with the foreshore, or with county bridges, special provision will be required. In order to facilitate the legislation necessary to give effect to their recommendation, the Committee are of opinion that a general statute in the nature of the statute known as the Companies Clauses or Lands Clauses Consolidation Acts should be passed, embracing all the provisions applicable to this subject, and that so much of such general statute as is applicable to each particular case, should be incorporated with, and form part of, every Provisional Order issued for the constitution of a conservancy district. VI. — With regard to the principle of assessment which should be adopted in raising the rates which would be required to meet the expenses of conservancy, the Committee find that there is much variance of opinion. The principle introduced by the statute of Henry VIII. and observed ever since, of taxing in proportion to the benefit conferred in each particular case by the works of conservancy, appears to work unfairly in some instances, and to be incapable of application in others. That of taxing equally all riparian lands included within a certain level seems likewise to be open to objection. They are stongly of opinion that towns and houses should contribute to the rates in question. At the same time there does not appear to be any injustice in rating uplands to the maintenance of a channel to which they contribute their quota of waters, and the case is still stronger with respect to towns which are at present exempt from taxation for this purpose. There is also, as the Committee think, no reasonable objection to the taxation of lands, &c, situated upon tributary streams on account of their being taxed for the conservancy of such streams. Having regard to these considerations, and looking to the extreme difficulty of rating lands according to the benefits derived, the committee 456 Report of the House of Lords. think that the rates should be distributed over the whole area of a water- shed, the lands and houses below the flood level being rated at a higher amount than those above it, and other graduations and exceptions being made to meet particular cases. Subject to the above recommendations, the committee think that the taxation required for drainage purposes should be levied on the basis of rateable value. And the committee have directed the minutes of evidence taken before them, together with an appendix and index, to be laid before your Lordships. 457 LAND DKAINAGE ACT, 1861. Particulars op Application under the Act. Name of District. County. Whether District Board or Commission of Sewers. Extent. Acres. Morden Carrs Durham District Board 4,000 Wormbrook - Hereford - Commission of Sewers - 1,977 Wissey Norfolk District Board 8,240 Ladden Brook Gloucester - Commission of Sewers - 957 Longdon and Eldersfield Worcester - District Board 3,595 Llangorse ... Brecon Commission of Sewers - 1,085 Maxey - - - - Northampton District Board 7,918 Martham Norfolk Commission of Sewers - 591 River Idle - Nottingham ditto 6,000 Stanmoor Somerset - District Board 676 Curry moor - ditto ditto 1,820 Dysynny Merioneth - ditto 2,564 Staunton Common Hereford ... Commission of Sewers - 1,454 Winterton - Norfolk - ditto 1,055 Chedzoy ... Somerset ... District Board 2,412 Kings Sedgmore - ditto Commission of Sewers - 11,259 Frodsham Chester District Board 4,217 Northmoor - Oxford ditto 2,364 Northmoor - Somerset - - . ditto 3,235 Aller Moor - ditto ditto 2,155 Haddiscoe - Norfolk - ditto 1,628 MucMeet - ditto Commission of Sewers - 1,404 Westmoor - Somerset - District Board 1,574 Digby --.- Lincoln ditto 1,440 Bourne South Fen ditto ditto SSI I Clist Valley - Devon Commission of Sewers - 1,327 Chet Valley - Norfolk ditto s-l 7 Deeping Fen Lincoln District Board l.;n Walmore Common Gloucester ... Commission of Sewers - about 700 Lay .... ditto District Board 393 Bispham and Carlton - Lancashire - ditto 763 Frodsham and Helsby - Cheshire ditto 2.7'. '7 Swavesey & Fen Dray- Cambridge - ditto 2,i'>! in ton. Feltwell and Methwold- Norfolk ditto 3,815 Fenstanton - Huntingdon ditto 319 Burgh St. Peter - Suffolk ditto 840 Didcot - Berks ditto 754 Burgh Castle Suffolk ditto 1,630 Donington - Lincoln ditto 3,010 458 RIVERS OF ENGLAND AND WALES (a). First Class Rivers, having Catchment Basins of 1,000 Square Miles and upwards. County. Length. Area of Basin. Tributaries. Name. No. United Length. Remarks. Miles. Sq. Ms. Miles. Humber - York 37 1,229 2 55 Mersey - Lancaster 68 1,707 6 188 Nene Northampton - 99 1,055 1 11 Ouse Ouse York Cambridge 591 156i 4,207 2,894 11 8 629 212 Bedfordshire Severn - Gloucester 178 4,437 17 450 Thames - Trent Tyne - Lincoln Northumberland 20H 1671 35 5,162 3,543 1,053 15 10 6 463 293 154 Witham - Wye Lincoln Hereford - 89 148 1,052 1,655 4 9 75 223 Second Class Rivers, having Catchment Basins of from 500 to 1,000 Square Miles. Avon Avon Dee Eden Ex - Medway - Parrett - Ribble - Tees Test Towy Usk Welland - Yare Somerset - Hants Flint Cumberland Devon Kent Somerset - Lancaster York Hants Carmarthen .Mi in mouth Northampton Norfolk - 78i 869 4 59 67 666 1 28i 93 850 4 82 79|- 916 4 97i 58i 562 5 8li 69 997 3 624 384 561 4 106 61 501 4 90f 95 744 9 132 35i 544 1 6| 664 522 3 55 764 650 7 107 72. V 707 3 78 35 533 4 84 (a) This classification was furnished to the Select Committee of the House of Lords on Conservancy Boards, 1877. 459 Third Class Rivers having Catchment Basins of from 100 to 500 square miles. Tributaries. Name. County. Lengl li. of Basin. No. United Length. Remarks. Milrx. Sq. Ms. Miles. Anm Adur Aide Alt- Aln- Axe Sussex Sussex Suffolk - l..-i n raster- Northumberland Devon 51* 21 30J 16* 24 25i 349 147 127 170 102 155 1 1 8 m Blackwater Brue Bure Essex Somerset - Norfolk - 50 3tii 524 465 197 338 2 1 53 114 Camel Cleddau, Western - Colne Conway - Coquet - Crouch - Cornwall - Pembroke- Essex Carnarvon Northumberland Essex 284 24* 37$ 30£ 45 20* 155 116 200 224 213 150 1 1 3 1 8i 134 29J 134 Dart Deben ... Derwent - Derwent - Dovey Duddon - Devon Suffolk - Cumberland Derby Montgomery Cumberland 371 32 354 64* 35 27i 179 159 268 429 264 117 1 1 1 3 5 10. V 10 13i 37 444 Elwv Esk" Esk - - - Denbigh - Cumberland York 31* 84 29* 306 143 136 3 2 3 49| 35 25 Fal Fowey Prome - . - Cornwall - ditto Dorset 20* 27 31 118 116 206 1 1 1 94 64 7f Glaslyn - Carnarvon 18* 142 1 14| Itchen Hants 274 137 — — Kent Cumberland 28* 196 4 49 Leven Llwchwr- Lune Lancaster- Carmarthen Lancaster- 6* 22* 53 i 123 130 3 5 3 25 45 414 Mawddach Merioneth 214 147 3 264 Neath Glamorgan _Ml 121 3 23* 460 Third Class Rivers having a Catchment Basin of from 100 to 500 square miles — continued Name. County. Length. Area of Basin. Tributaries. United Length. Remarks. Ogmore - - - Orwell - Ouse Portsmouth and Chi- chester Basin Bother - Steeping Stour Stour, Great - Stour Taf - Taff Tamar Tawe Teifi Teign - Titchfield Torridge - Trent, or Piddle Tweed - Wansheck Waveney Wear Wyre Yeo - - - Glamorgan Suffolk - Sussex Sussex Lincoln - Essex Kent Dorset Carmarthen Glamorgan Cornwall - Glamorgan Cardigan - Devon Hants Devon Dorset Northumberland ditto Norfolk - Durham - Lancaster- Somerset - Miles. 8q. Ms. 15f Ill 3 35 257 — 34i 212 — — 315 — 33^ 281 — 24 102 — 61| 420 2 52| 291 1 64 479 2 31| 187 2 38i 202 6 55| 381 2 27i 110 1 70 389 8 34£ 189 ■ — 20| 128 — 52§ 349 2 21* 125 — 22 267 1 27 183 2 58f 339 — 70 455 6 35i 179 2 14| 127 — Miles. 27f 34 12 25 27 59^ 32 10| 571 30 30 27i 74£ 20+ Fourth Class Rivers, having Catchment Basins of from 50 to 100 square miles. Aeron Cardigan - 19i 63 Avon or Aune - Devon 23£ 55 _ — Ax - Somerset - 24 98 — — Blyth Northumberland 26i 80 1 19i Blythe - Suffolk - 18i 71 — — Cleddau, Eastern - Pembroke 19| 84 1 12| Cuckmare Sussex 24 75 _ 461 Fourth Class Rivers having Catchment Basins of from 50 to 100 square miles — eontin ued. Tributaries. Name. County. Length. of Basin. No. United Length. Remarks. Daucloddau Dysynni - Pembroke Merioneth Miles, 11 14 8q. Ms. 76 64 — Miles. Ehen Ellen Erch Cumberland ditto Carnarvon 14J 20f 12 59 54 53 — Germains, St. - Cornwall - 8 95 2 35i Lai or Ely Lime Water Glamorgan Northumberland 24 15J 64 50 — — Otter Devon 27 95 — — Plym ditto 15 73 — — Rheidol - Kumney - Cardigan - Glamorgan 25i 35£ 74 99 2 1 32 7 Tavey Taw Devon ditto 23 48f 87 77 1 3 12 49J Wampool Wit hern - Cumberland Lincoln 18 20i 62 91 1 8 Ystwyth Eau - Cardigan - 23i 75 — — Fifth Class Rivers, having Catchment Basins of from 10 to 50 square miles. Afon Afon-Fawr Alaw Arth Artro Babingley Beaulieu - Berryburn Birk Head Beck Braint Bredy Brit Buckbarrow Beck Cardigan - Carnarvon Anglesea - Cardigan - Merioneth Norfolk - Hants Northumberland York Anglesea - Dorset ditto Cumberland 13* 39 1 5i 44 10 — — 18 32 — — 9 14 — — 81 33 — — 8i 26 — — 12 30 — — 7 12 — — 5£ 21 1 5 J 12i 28 — — 72 17 — — 9* 45 — — 6 10 " 462 Fifth Class Rivers, having Catchment Basins from 10 to 50 square miles — continued. Tributaries. Name. County. Length. of Basin. No. United Length. Remarks. Miles. Sq. Ms. Miles. Buckton Burn- Northumberland] 64 16 — — Bucle Devon 8 31 — — Burn, Fleetham Northumberland 10| 27 — — Barn, Embleton ditto 64 10 — Calder - Cumberland 8| 23 — — Castle Eden Burn - Durham - 84 14 — ■ — Cefni Anglesea - 13 48 — — Cegin - ditto 64 10 — — Char Dorset 8 21 — — Clarach - Cardigan - 8* 18 • — — Cocker - Lancaster- 9 15 — — Cober Cornwall - 9 21 — — Coniston Water Westmoreland - 10' 3G — — Crigyll Haradoc Anglesea - 8 25 — — Crindon Beck - Durham - 84 12 — — Cwm Wyrai - Cardigan - 104 22 — — Dawlish - Devon 5| 12 — — Ddaw - Glamorgan 134 45 — — Dry Burn Northumberland 9 19 — — Dulas Denbigh - 74 19 — — Dulas Anglesea - 64 15 — — Dwyfawr- ditto 124 43 1 10 Erm Devon 15 41 — — Esk ... Cumberland 174 43 — — Ffavv Anglesea - 7 18 — — Gilbert's Water Cornwall - 7! 17 — — Gorfai Cai'narvon 101 28 ■ — — Gwaen - Pembroke 94 23 — — Gwendracth Fach - Carmarthen 15J 32 — — Gwendraeth Fawr - Ditto - 14 32 — — flamble - Hants 114 48 — — Hayter - Cornwall - 10 42 — — Heddon - Somerset - 5J 16 — — Helford - Cornwall - 9 36 — — Irt - Cumberland 164 48 — — Keer Westmoreland - 8£ 17 — -- Kilton Beck - Durham - G 20 463 Fifth Class Rivers, having Catchment Basins of from 10 to 50 square miles — continued. Name. Llihedi - Llyfni Looe Ludd Lymington Lynn, East Medina - Minsmere Mite Nevern - Newton - Ogwen - Pennar - Pillingwater Rousby Beck Scioni Seaton - Seaton Burn Sid- Sillybrook Skelton Beck Sock Solva Stream - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - Ditto - County. Length. Area of Basin. Carmarthen Carnarvon Cornwall - Lincoln Hants Devon Isle of Wight - Suffolk - Cumberland Pembroke Isle of Wight - Carnarvon Pembroke Lancaster- Durham - Carnarvon Cornwall - Northumberland Devon Glamorgan Durham - Carnarvon Pembroke Anglesea - Pembroke ditto Somerset - ditto - ditto Cornwall - ditto ditto ditto ditto ditto ditto - ditto - ditto - ditto ditto Tributaries. No. United Length. Remarks. Miles. Sq. Ms. Miles. 8 10 — — 9i 20 — — 9i 42 — — 16 45 — — 13f 47 — — lii 37 — — n 26 12* 25 — — 8f 10 — — 13 45 4^ 22 — — io| 31 — — 8* 15 4$ 21 — — 8 22 1 6 14* 36 10| 22 — — io| 42 — — 6 14 — — 2 19 — — 8i 37 — — 10* 26 — — 9i 18 — — 5 13 — — 6| 12 — — 4f 11 — — n 28 — — H 18 — — 10 18 — — 74 14 — — . N'. 27 — — 10* 37 — — 8 25 — — 5* 13 — — 61 10 — -— 3f 10 — 3f 10 — — 6i 12 — — 7'. 15 — — 8 32 — — 464 Fifth Class Rivers, having- Catchment Basins of from 10 to 50 square miles — continued. County. Length. Area (if Basin. Tributaries. Name. No. 1 United Length. Remarks. Miles. Sq. M.S. Stream - Ditto - Ditto - Ditto - Ditto - Devon ditto Hants Isle of Wight - ditto - 94 6i 9* 4 15i 34 11 17 10 31 — — Tetney Drain - Lincoln 19i 44 — — Waren Burn - Waver Wey Wold Grift Northumberland Cumberland Dorset Lincoln - 9 151 HI 20 48 19 26 — — Yar Yealme - Isle of Wight - Devon 3 14 13 38 — — RIVERS OP ENGLAND AND WA.LES. Particulars of Lengths and Watersheds. First Class Rivers, having Catchment Basins of 1,000 square miles and upwards. 1 exceeds 5,000 square miles 2 „ 4,000 ' „ 1 „ 3,000 1 „ 2,000 6 „ 1,000 Total - 11 No. Maximum area, 5,162 square miles (Thames) Minimum ,, 1,052 „ (Witham) Maximum length, including Tributaries, 688^ miles (Ouse). Minimum length, including Tributaries, 92 miles (Humber). 465 Second Class Rivers, having Catchmeni Basins of from 500 to L,000 square miles. Total l exceed 900 square miles 800 700 GOO 1 I No -,i ii i Maximum area, 997 square miles (Medway). Minimum „ 501 .. (Ribble). Maximum length, including Tributarie 227 miles (Tees). Minimum length, including Tributaries, \- miles (Test). Third Class Rivers, having Catchment Basins of from 100 to 500 3quare miles. Total 6 exceed 100 square miles 8 „ 300 12 „ 200 33 „ 100 59 No. Maximum area, IT'- 1 Bquare miles (Stour, Dorset). Minimum area, 102 square miles (Aln and Steeping) . Maximum length, including Tributaries, 1 1 I • miles (Wear). Minimum length, including Tributaries, 1 1 ■'. miles (Veo). Fourth Class Rivers, having Catchment Basins of from 50 to LOO square miles. Total 5 exceed HO square mile; 3 „ SO 7 „ 70 4 „ 00 5 , 24 No. :.n Maximum area, 99 square miles (Rumney). Minimum ,, 50 ., (Line Water) Maximum length, including Tributaries, '.'V, miles (Taw). Minimum length, including Tributaries, 11 miles ( I (ancleddau). ii li 466 Fifl L Class Rivers, having Catchment Basins of from 10 to 50 square miles. 16 exceed 10 aq tare miles 18 » 30 » 25 20 20 » 15 J J 23 ,i in )» Total - 102 No. .Maximum area, 48 square miles (Hamble, Irt, Cefni and Waver). Minimum area, 10 square miles (Avon and others). Maximum length, including Tributaries, 22$ miles ( Dwyfawr). Minimum length, including Tributaries, 2 miles (Silly Brook). 1st Class Rivers 2nd [„ 3rd 4th g„ 5th _"„;,„ No. 11 14 59 24 .102 ,„, 210 i n \) i : \ . ABATEMENT of nuisance, i> I, 187. ABEBNETHY, Mr., evidence of, !). ACCOUNTS of offices of Commissioners of Sewers, 17. Drainage Boards, 208. inspection of Commissioners of Sewers, L96. Drainage Boards, 208. ACCRETION, lands formed by, 7". when fchey belong to the subject, 7<>- to the Crown, 70. ACRE, rate levied by, 109. ACT OF GOD, when it exonerates from liability to repair, 1 18. from negligence, 193. ACTS (Public.) See STATUTES. (Local) conferring powers of Commissioners of Sewers, 88. excepting powers of Commissioners of Sewers. 70. ACTION AT LAW for illegal distress {seeaVso Illegal D*istbess), 132. for public nuisance, 184. against Commissioners of Sewers, 189. when it lies, L89. distinction between and niandamus, 189. liability depends on statute. 190. for negligence, 191. of their servant-. 1!»2 of contractors, 192. to be sued in the name of their clerk, L86, 194 execution againsl , 195. r of amends, 195. evidence <>•• e also Evident e), 198 pleadings (s< i Pleadings), m 1 ^ See also Cert i mart, Mandamus, INJUNCTION, INDICTMENT. H H 2 ii Index. ADJOURNMENT of Sowers Court, 51. of appeal to Quarter Sessions, '.)J. ADVERTISEMENT of Sewers Court, 51, s 7. of adjournment, 51, 87. of proposed works exceeding £1,000, 58. of proposed purchase of land under Land Drainage Act, L861, 78. ADVOWSON whether rateable to sewers, 117. AFFIDAVIT in support of certiorari, 168. mandamus, 175. AFFIRMATION by Commissioners of Sewers, 40. by Quakers, 40. by jurymen, 88. AGENT acting as Commissioner of Sewei's, 38. appointment of, 38. oath of, 38. service of notice on in purchase of land, 79. AGREEMENT by Commissioners of Sewers for purchase of land, 7'', 77, 78, 215. under 3 & 4 Will. IV. c. 22, 7G, 77. under Land Drainage Act, 18GI, 78. under Lands Clauses Act, 215. evidence of, 197. AGRICULTURAL DRAINAGE Land Drainage Act, 1861, confined to, 7. ALDERMAN, ex officio Commissioner of Sewei's, 43. ALLUVION, lands formed by, 70. when fchey belong to the subject, 70. AMENDMENT of rate, 123. of return in certicrwri, 172. of works, 58. power to borrow for, 72. to purchase land for, 76. AMENDS, tender of, 195. AMERCEMENT, finding of jury necessary for, 162. for neglect to repair, 162. on a township, 162. Index. iii AMERCEMENT continued. enforcemenl of, 124, L56, L63. mandamus refused when there i- remedy by, L74. ANNOYANCES. Se< aiso Obstructions. removal of, 64, 66. presentmeul of. Sei Forms in Appendix B. ANNUITIES, whel ber rateable to sewers, 117- APPEAL. See also Qi aktki; Sessions. to Quarter Sessions, 5, 95, 122. against sewers rate, 122, 123. By certiorari, 124, 126. See also I tertiorari. APPOINT.M ENT. See Forms in Appendix B. of a Commissioner of Sewers, 34, ; J<>. ■ if officers of sewers, 42. clerk of sewers, 42. surveyor, 12. bailiff, 42. collector, 12. expenditor, 42. by the sheriff of liis deputy, 87. of arbitrators under the Lund- Clauses Act, 223. APPORTIONMENT of sewers rate, 120. of sewers tax in gross, 103. ARBITRATION under Land Drainage Act, 1861, 66. in removal of weirs, dams, &c, 66. on appeal to Quarter Sessions, 98. under Common Law Procedure Act, 98. award, 98. special ease, 98. power of arbitrator, 98. setting aside award, 98. time for making, 99. ts, 99. under Lands Clauses Act, 222. notiee of claim, 223. appointment, 22:5. umpire, 224. submission a rule of Court, 221 conduct of proceedings, 225. award, 225. declaration, 22(i. mandamus, 22(i. evidence of, 226. costs of, 240. iv Index. ARBITRATOR. See Arbitration. \ki;.\ of Commission of Sewers, 37- arrangements with adjoining, 67. petition of propriety Drainage Board, 202. Set Poem o Appendix B. ARTIFICIAL HAXKs. whether within the jurisdicti I I ommi aoners of Sewers, 66. distinction between natural and, 55, 146. ASSESSMENT. See also Rate, Compensation. on lands, of money borrowed by Commissioners of Sewn.., 72, 7-">. of sewers rate, 11(1, 120. of coa enanl to pay, L20. of poor rate, sewers rate a deduction from, L20. under Land Clauses Act. by justices, 219. by arbitrator, 222. by jury, 227. ATTACHMENT, wril of, 173, 189. AVnWKY ill action for distress for sewers rate, 131. AWARD in arbitration ordered by Quarter Sessions, 98. enforcemenl of, 98. setting aside, 98. time for making, 99. in arbitration under Lands Clauses Act, 225. BACON, Lord orders by relating to Commissions of Sewers, 36. BAILIFF of I 'ommissioner oi Sewers, 12. appointmenl of (seealso Forms in Appendix B), 12. duties of, 42. security from, 43. remuneration of, 44. ivery of salary by, 45. removal of, 45. refusal by to give up property of Commissioners, 46. punishment of, 17. b ' account, 89. dist ress on for not accounting, 89. pre cut meat by, 89. repairs ordered by, 17<>. I d from, 43. -. oath of. (.See Forms in Appendix B. precept to summon aCourtoi Sewers. J Index. BANK, jurisdiction of Commissioners of Sewors over, ■"><>, 57. definition of, 55. property in, 33, 55, s ! . on fresh wal er river, 55, 56. power to erect , 66, 1 U\. 177- private banks (see also Obstructions), 66. repair ami maintenance of , 52, 72, 7 1 '. demolition of, <><>. injury to, 82, 160. indictment for malicious injury to, 18fc>. neglect to repair when indictable, 185. natural barrier against the sea may not be destroyed, 33, 69, 1 K>. erection of, on foreshore may be a subject of compensation, 235. injunction to restrain taking away materials from, 181. obstruction to navigation by, 184. Liability to repair by ownership, 147- right of a way along, 82. order to repair. See FORMS in APPENDIX B. BANKRUPTCY er, 47. of member of Drainage Board, 207. BATHE, Sib II. De., commission of Konmey Marsh issued to, 34. BEACH. See also Foreshore. injunction to restrain removal of shingle from, 181. prosecution for removing shingle from, 146. BED OF RIVER, silting in, 1 1 , 12. scourings of, rights of riparian occupier, 67. BEDFORD, floods at, 7- BEDFORI) LEVEL, rights of, preserved, 71. nature of office held tinder corporation of, 46. BENEFIT, principle of rating by, 6, L07. ii 1 not be immediate, 108. quantum of, a question for the Commissioners, 108, value of property to be the basis, 109. no set-off for, in assessing compensation for works, 2-'iti. BILL OF SEWERS, title of, 23 lien. VII 1. c. 5, 2, 34. BLIND, blind man may not be Commissioner of Sewers, 85. BOARD, Conservancy Board, 1, 13-2U. vi Index. HOARD lonbinued Navigation Board, 1,8. Set Navigation ! irainage Boards, 1, 201. BOARD OF TEADE. jurisdiction over foreshore, 69. BOG, petition of pi oprie I ', 5, 2U2. B( )N1>. See Si bj n bs. from officers of sewers, l-'i. BOOKS, inspection of, of Commissioners of Sewers, L96 Drainage Board, 211. BORROWING by Commissioners of Sewers under 3 & 4 Will. IV. c. 22, 71- purposes of, 7-. security, 7-- consent of owners, 72. limit dt chargeability, 73. time fur repayment, 73. granl of security, 73. transfe] ol ecurity, 73. form of security, form of transfer of security. See Forms in ArrENmx B. umler 1 ,V- 5 Vie. c. 45, 73. a charge on the sewers rati 1 , 74. limit of time, 7 I- under I. ami Drainage Ad, L861, 74. sanction of Enclosure Commissioners, 74. application in support, 7">- 1 ertn of borrow ing, 7."). incorporation of Commissioners Clauses Act, 75. BOUNDARY of area to be itituteda I drainage District, 203. alteration of, 58. BRIDGES, ,i ca use of floods, 12. ici dicti i r by Commissioners of Sewers, 55. liability to repair, 141. nuisance by erection of, L84. c pen at ion for new bridge, 235, 236. BUILDING, re val of, by < lommissioners of Sewers, 6G. purchase of, by Commissioners of Sewers, 77. whether rateable to ewers, ", 111, 117. bility of to | r rate when occupied by Commissioner, of Sewers, 135. BURGESS >■' nflirin ( \ niimissioiiei i 'I Sewer- , 39. Index. vii BYE- LAWS if I 'ommissioners of Sewers, \'<7- authority for, 1">7. purposes of, L57. duration of, L58. costs of enforcing, l"> s . opposition to, L60. See Forms i\ Appendix B. CALCEYS, jurisdiction of Commissioners of Sewers as t o, ■"> 1. definition of, 55. CALLIS, reading on Sewers, 34. CAMBRIDGE COUNTY, Rivers Conservancy Bill affecting, 28. CANALS exempted from jurisdiction of Commissioners of Sewers, 70. CAR DYKE, 32. CATCHMENT AREA, IS. See Rivers Conservancy. CATCHMENT BASINS of rivers of England and Wales. See Appendix C. CATTLE, distress on, for sewers rates, 129. of stranger may be seized, 129. but not sold, 129. CAUSES OF FLOODS, account of, 10. subsoil drainage, Hi. mills and weirs, 10. neglect of channel, 12. bridges, 1^. decline of navigation, 12. railways, 12. town sewage, 13. CAUSEWAYS. See Calceys, supra. CERTIORAR 1 , writ of, 166, 107. a civil proceeding, 173. is not ousted by appeal to Quarter Sessions, 96. Rules of Court affecting, 166. issue of writ, 167- when granted, 140, 167. where granted, 1(57. whether discretionary or of right, 168, 171. to question dismissal of clerk of sewers, Id. to review proceedings of Commissioners of Sewers, 166. -ewers rate, 124. viii ln >. CHAIRMAN at Courl of Sewers, 51. of Drainage Boards, 208, 210. tu be returning officer, 208. to have casting vote at meetings, 210. signing of minutes by, 211. CHANCERY, orders in, 3(5. bill of reversal in, 94. CHARGE ON LAND, sewn-, rate, a, 120, 1-1 • a deductioD from rateable value, 120, 12] . gross or annual, effected by commutation, I - ■ I CHARTER, title to foreshere by, <>'j. liability to repair by, I3 ( J. CHIEF JUSTICE, appointment ol C raissioners "l Sew< n by, 36. CLASSIFICATION of works, 1, 5 1, 58. of district {see RlVERS CONSERVAN< N BlLL), 18. CLEANS1 NC See Works. rivers, watercourses and sewers, 58, i>7- CLERK OF SEWERS. See also Officers. elei I ion of, 12. bond fr , 13. not to be treasurer, 1 1. remuneral ion of, 1 1. recovery of salarj by, 15. removal of, 45. Index. i.\ CLERK OF SEWERS d. office held at will, C>. sues on bond from officer, I-".. ign nol ice of ( lourl , 50, 87. regis) ration of transfer of securities by, 73 lara For ( 'ommissioners, 19 1. legal proceeding not I or resignation of , 194 impeteni witness, L86, 197. ni) e i 'in i. until sis months after judgment, L95. n.iii i d , and certified copies to be evidence, L97. notices signed by, to be evidence, 197. coast DEFENCES. See Works. jurisdiction of Commissioners of Sewers as to, 5(i. COGNIZANCE of Commissioners of Sewei a to property and works, 81, I s -. 187. COKE, Sie Edward, .is to rights of Crown to issue Commissions of Sewers, -J2. tsses Sewers Courts among Courts of Record, 50. i if dismissal From office, 60. as i" jurisdiction of Commissioner of Sewers, 60. COLLECTOR. See Bailiff of Sewers. appointment of, 42. form of appointment. Se< Form in Appendix 13. warrant to account. See r'oKM l\ APPENDIX B. I mn.l from. Ser Koi;m in Appendix B. oath of. See Form i\ Appendix B. See also Officers. COMBINATION WORKS, 63, 205. Set also Works. COMMISSION OF SEWERS. See Sewers, Commission of. COMMISSIONERS CLAUSES ACT. incorporation in Land Drainage Act, 1861, l't. [., 75. as to mortgage, 7.V incorporation in Land Drainage Act, 1861, l't. 11., 20J, 2<>b. as to Drainage Boards, 2n7, 208. • as to contracts, 207, 208. scale of voting, 5, 208 noti.es, L98, 208. legal proceedings, 208. officers, 208. account S, 208. COMMITTEE of I Irainage Board, 210. cannot delegate their duties, 21CL COMMON LAW PROCEDURE ACT incorporated in Land Drainage Act, L861, 98 Lands Clauses Act. 224. COMMON OF PASTURE, rate-ability of, ltiy, 115. x Index. COMMON OF PISCARY, rati a bilil 3 ol to 3ewers, L08, 1 L5. COMMON" or TURBARY, rateabilitj oi s, 115. CO MM ON Kits, compensation to under Lands Clauses Act, 2."> s COMMONS, compensation to under Land CL s Act, 238. when held of a manor, 238. vesting of in Commissioners of Sower.-, 238, 231). meeting or' Commoners, 238, 239. COMMUTATION of liability to repair, 5, 8, 23, 154. by rent-charge, L54. record of to be evidence, 197. proposal of, under Rivers Conservancy Bill, 20, 2L. COMPENSATION for purchase of land under 3 & -1 Will. IV., e. 22, 76, 214. See Purchase of Land. under Lands Clauses Act, 213. Lands Clauses Act incorporated in Land Drainage Act, 1861, 67, 79, 213. interpretation of terms, 214. Special Act, 214. promoters, 214. lands, 214. lease, 214. owner, 214. purchase of land by agreement, 21."). must be for purposes 1 >t the Art. 215. notice to treat, 215. does not constitute a contract, 215. purchase of land otherwise than by agreement, 215, notice to treat, 215. particulars, 215. to whom given, 217. part ies interested, 217. hovt signed, 217. no stamp uecessary, 217. Mil a debt owing under Judicature Act, 217- service of, 218. rime tor serving, 218. answer, 218. hinds Commissioners and owner, 213. period of binding, 21'.). compensation assessed by justices, 219. interesi 1 >t' yearly tenant, 22u. In case of lands taken, 220. in case of lands injuriously affected, 220. Index. xi COMPENSATION— continued. qualification of justices, 220. appearance bj I lommi l mer i, 220. tenant from year to year, 220. interest, hew reckoned, 221 . production of Lease, 221. proceedings, how brought, 221. basis of compensation, 222. adjudication, 222. not an order for payment of money, 222. under Jervis's Act, 222. mandamus, 222. compensation assessed by arbitrator, 222. incorporated in Land Drainage Act, 1SG1, 222. under s. 68 of Lands Clauses Act, 222. appointment of arbitrator, 223. umpire, 223. not revocable, 224. submission may be made a Rule of Court, 221. C. L. P. Act incorporated, 224. special case, 22-1. reference back, 224. conduct of proceedings, 22 I. the award, 221. declaration, 226. limit of jurisdiction, 220. time for making, 226. enlargement of time, 226. Commissioners bound to take up the award, 226. mandamus, 226. action, 226. evidence of arbitrator, 226. assessment by jury, 227. interest less than yearly tenancy, 227. lands injuriously affected, 227. notice of intention to assess by jury, 227. time for giving notice, 227. summons of jury, 228. sheriff to preside, 228. summon witnesses, 229. view, 229. penalties for misconduct, 229. claimant failing to appear, 22!». jurisdiction, 22'J. verdict and judgment. 23*1. special jury, 2311 lauds injuriously affected, 231. compensation under s. 68, 231. xii Index. COMPENSATION— continued. in what cases, 281. Arts of Parliament omitting the section, 231. assessment of compensation, 231. by justices, -•">! . arbitrator, 231. jury, 231. notice of procedure, 231. lands let on Lease, 232. value of covenant, 232. profits of trade, 232. damage Bor removal, 232. landlord and tenanl claims, 232. notice to tenanl , 233. measure of compensation, 233. titheable lands, 233. fee simple, owner in possession, 233. compensation, how calculated. 233. tenant or lessee, 233. interest payable, 234. principles of application under s. 68, 23 I . damage must be actionable, 234. injury to the estate caused by the execution of the works. 234. instances of application, 235. no set-off for benefit, 236. application of purchase-money, 237- lands may be sold for a rent-charge, 237. charged on tolls or rates, 237. enforcement, 237. copyholds, 237- land subject to mortgage, 237. rent-charges, 237- leases, 237. common or waste land, 238. right to the soil in the lord, 238. or in the Commoners, 238. vesting of lands of the Commissioners, 238, 239. when the right to the soil is in the Commoners, 238. committee of Commoners, 238. meetings, 238. vesting of land, 239. apportionment among Commoners, 239. costs, 239. COMPOSITE JURY, of adjoining jurisdictions, 90. when they may he summoned. !Mi should sit together, 91 . Tndex. xiii CONSENTS of "u aer and occupiers ander •'» it 4 Will. IV. c. 22, (>, (i(i, 72. Land Drainage An, l.siil, 58, 62, 66. for execution of works exceeding 61,000, 58. t'or removal of dams ami weirs, (i(i. for new works, 61, 62. for charge on la mis, 72. CONSERVANCY OF RIVERS generally excepted from Commissioners of Sewers, 7<*. CONSTABLE to obey Commissioners of Sewers, 125. to execute warrants of Commissioners of Sewers, 125. CONSTRUCTION OP WORKS. See also Works. by Commissioners of Sewers, 58, 61. CONTRACTOR, Commissioners of Sewers when liable for negligence of, 192. CONTRACTS, evidence of, 197- of Drainage Board, 208. CONVEYANCE of land to Commissioners of Sewers, 77- evidence of, 197. COODE, Sir John, report on River None, 10. COPYHOLDS, qualification for Commissioners of Sewers, 38. rateable to Sewers, 115. may be sold under distress for sewers rate, 127. sale under Lands Clauses Act, 237. 3 & 4 Will. IV. c. 22, 76. CORPORATION acting as Commissioners of Sewers, 38. included in term person, 124, 125, 155. sale of lands by, under 3 & 4 Will. IV. c. 22, 77- sale of lands to, 127. may be liable by tenure or custom, 139, 140. or charter, 139. or grant, 141. cannot sue as a common informer, 164. Commissioners of Sewors, qua a, Corporation, 83, 194 Drainage Board a corporation, 205. Conservancy Board proposed to be a corporation, 19. COSTS of Commissioners of Sewers. in sale of lands under 3 & 4 Will. IV. c. 22, 77. under Land Drainage Art. 1861, 80. levied by rate, 105. xiv Index. COSTS — continued. enforced by distress, L30, 15G. of putting in force decrees, 158. of Clerk of Commissioners, 195. decreed by Commissioners of Sewers, 195 mi appeal to Quarter Sessions, 97. of arbitration under C. L. I'. Act, 99. of certiorari, 1GG, 173. of obtaining a Provisional Order, 2(15. under Lands Clauses Act, 239. in purchase by agreement, 239. valuation by surveyors, 239. assessment by justices, 240. arbitration, 240. jury, 240. particulars of, 241. payment of, 241. of money deposited, 241. of refusing to give up possession, 242. of interests omitted to be purchased, 242. COUNTY Commissioners of Sewers, qualification of, to be in, 38. dwelling in, 38. advertisement of Sewers Court in a newspaper of the, 51. COURTS OF SEWERS are Courts of Record, 49. place of meeting, 50. may be held outside the Commission, 50. regulation as to holding, 50. notice, 50, 87. appointment, 50, 87. chairman, 51. majority at, 51. quorum, 51. adjournment, 51. special meeting, 52. notice of, 52. emergency meeting, 52. notice of, 52. contempt of Court, 158. notices convening. Sep Forms in Appendix B. COVENANT, liability to repair by, 142. not binding on heir if no assets, 142. when Commissioners of Sewers can notice, 142. runs with the land, 142. extent of liability, 148. onus jyrobandi, 153. Index. COVENANT— continued. exonerai ion of liability, 1 18. commutation, 154. enforcemeni , L55. to pay sewers rate, 1 1!'. assessment of, under Lands Clauses Act, 232. CREEKS, jurisdiction of Commissioners of Sewers over, •">(!. rights of Crown over, 69. CROWN, prerogative to issue Commissions of Sewers, •_', .",::. issue of Commission of Sewers by, :> >7- rights and duties as to foreshore, 33, <>'.», I 15 to derelict land, 70. land of, rateable to sewers, 117. distress on lands of, 127. not leviable in palace, 127. CROWN OFFICE, issue of Commission of Sewers from, 36. Crown side of Queen's Bench practice, 166. CULVERTS, jurisdiction of Commissioners of Sewers as to, 55. CUMULATIVE, provisions of Land Drainage Act, 4, 36. means of enforcing liability to repair, 155. CUSTOM, liability to repair by, 139. may attach to the person, 139. extent of liability, 148. extinguishment of liability, 148. commutation, 154. enforcement, 155. presentment of liability. See Forms in Appendix B. CUTS, rateability of, 135. DAMS. removal of, 64, 65, 66. rateability of to poor rate, 135. DEAN, ex officio Commissioner of Sewers, 39. DECLARATION in lieu of oath, 10, 88. of sewers, for Commissioners of Sewers. See Forms i\ Appendix B. DECREES OF COMMISSIONERS OF SEWERS authorised by 23 Hell. VI 11. e. ,">, L57. purposes of, 157. charging laws with re-payment of loan, 72. I 1 xvi Index. DECREES OF COMMISSIONERS OF SEWERS— eo„/,,M/.-,| duration of, 158. costs of enforcing, 158. final in trial of presentment, 93, 1*5, 122. in action For illegal distress, 133. opposition to, 160. of lands from their owner, 127. removal of, by certiorari, 1(56", 170. inspection of, I'M). form of. See Forms in Appendix H. DEDIMUS POTESTATEM, writ of (see Form in Appendix B.) 3G. DEEPENING rivers, sewers, and watercoui'ses, 58. power to borrow for, 72. to purchase land for, 76. DEEPING FEN, 210. DEFAULT, presentment must allege, 90. maybe several in one presentment, 89. owner in, not exonerated, 148. DEMAND for sewers rate, 125. DEMURRER to traverse of presentment, 91. See also Presentment. DEPOSIT of money under Lands Clauses Act, 287- costs of, 241. DEPUTY, Commissioners acting by, 38. of sheriff the clerk of sewers, 87. DERELICT land, when it belongs to the subject, 70. when to the kiug, 70. distinction between and alluvion, 70. DIKE-REEVES. See Dyke-reeves. DISSENT of proprietors to proposed works exceeding £1,000, 59. DISTRESS on property of sewers officer, 47. on Crown lands, 127. not leviable in a royalpalace, 127. enforcement of sewers rate by, 124. on goods and chattels, 12 !•, 12G. for fines, 155. for expenses of the Commission, 15G. tndex. xvii DISTRESS— continued. where leviable, 126. 12 & 1:5 Vic. c. .".Us. 7, 124, L26. summon L25. levy, 125. execution, L25. mi lands, 126. where leviable, 12<>. . 126. effect of sale, L29. cattle of stranger, 129. enforce nl of tax in gross by, 12'.). leviable on goods but noton land, 129. warrant by six Commi . 130. enforcement of by special rate, 130. i i occupier, 130. replevy (see also B plevs ), 131. illegal distres . ai tion for, 132. on property of Commissioners of Sew srs, 237. DISTRICT, iib-division of, 122. drainage (see Drainage Board), 201. DISTRINGAS AH REPARANDUM, writ of, 126, 155. >i -nly lie levied within the Commission, 126, 155. DITCHKS within the jurisdiction of Commissioners of Sewers, 54. DIVERSION of water from harbours by Commissioners of Sewers, 71. .4' navigable river, indictable, L84. of brook, the subjeel of compensation, 235. of underground water, 236. DOCKS, powers of Commissioners of Sewers as to. 68; 69 malicious injuries to, 188. compensation Por destruction of, 235. DRAINAGE ACTS public (see Statutes of Skwers), 2, 33. private, 3, 8, 70, 86. DRAINAGE BOARDS, bushed by Land Dr ; Let, 1861, 1, 5, 201. are invested with powers of Commissioners of Sewers, 205 constitution of district, 201. a corporation, 5, 205. petition for constituting, 205. inspector, 203. making of Provi lional I (rder, 203 i i 2 xviii Index. DRAINAGE BOARDS— confc'wued. effect of Provisional < >rder, 203. confirmed by Parliament, 204. petition against, 20 k grouping of several, 204. costs of, 204. regulations affecting, 206. members of the Board, 206. meetings, 206. qualification of members, 206. vacation of office, 206. re-election of retiring members, 206. casual vacancies, 207. bankrupt members, 207. validity of acts, 207. qualification of electors, 207. scale of voting, 207. incorporation of Commissioners Clauses Act, as to contracts, 207- liabilities and legal proceedings, 207. appointment and accountability of officers, 207- accounts of Commissioners, 207. notices and orders, 207. rules as to election of members of, 207. returning officer, 207. must be present, 209. may not be a candidate, 209. poll, 209. voting, 209. decision of retiring officer, 209. rales as to proceedings of, 210. meetings and transaction of business, 210. majority to decide, 210. chairman, 210. committee, 210. cannot delegate, 210. minutes, 211. evidence of, 211. appeal from order or a vote made by, 206. may combine with Commissioners of Sewers of adjoining area, notices of, 198. service of, 198. proof of, 198. DRAINAGE DISTRICT, 201. See Drainage Board. DRAINAGE OF LAND, statutes relating to, 2. causes of failure, 6. causes of floods, 10. Tndex. xix DRAINAGE OF LAND bmued. proposals for, 13. P"u er i" borrow for, 72. DRAINAGE BATE, ,i deduction from rateable value, 120, 1:21 DRAINAGE WORKS, nol rateable to i t rate, 135. unless beneficially occupied, 135. DRAINS included in term " watercourse," 58. DRAW DOCK, destruction of, 235 compensation for, 235. DUCHY OF LANCASTER, rights saved, ft'ee sections 1 L, Us of 23 Hen. VIII. c. 5. DUGDALE. (His Work on Embanking.) us toCharter of ELumney Marsh, 34. description of causey, 55. DURATION OF COMMISSION originally for ten years, 41. continue until superseded, 41. how terminated, 41. la«s and ordinances co-extensive, 42. DUTIES OP COMMISSIONERS OF SEWERS. See Sewers, Commissioners of, Powers, Works. DYKE-REEVES under 3 & 4 Will. IV. c. 22, 48. under 12 & 13 Vic. c. 50, 3, 48. qualification, 48. to serve without fee, 48. penalty for refusing to serve, is. presentment by, 49. EASEMENTS included in term " lauds,'' 214. EAU BRINK CUT, description of, 56. ELECTORS of Drainage Boards, 207. qualification of, 207. scale of voting, 207. ELECTION of members of Drainage Board, 208. returning officer, 208. voting at, 209. ELECTIVE DRAINAGE DISTRICT, 201. See Drainage Boards. ELECTIVE DRAINAGE BOARDS, 201 Se< Drainage Boards. ELY, ISLE OF, Rivers Conservancy Bill affecting, 28. xx Index. EMBANKMENT, a cause of floods, 13. jurisdiction of Com i i mi i oJ Sewers ever, 56, 57. property in, •')•'>, 55, 81. power to erect, 66, 1 1<>. 177. private, 66, 146, 177- repair and maintenance of, 52, 72, 7<>- injury to, < s _, L60. indictment for malicious injury to, 188. obstruction of navigation by, 184. injunction to restrain taking materials hum, 181. erection of on Foreshore a subject of compensation, 235. whether rateable to poor rate, 135. right of way along, 82. EMERGENCY MEETING of Courts of Sewers, 52. in case of imminent danger, 52. appointment of, 52. business to lie' transacted at, 52 ENFORCEMENT of rate by distress (see also Distress), 121. warrant, 124. on goods, 124. on lands, 126. sale, 128. of tax in gross, 129. of special rate, 130. of Liability to repair, 155. ENGINES, gotes ami weirs, 56. injunction against use of, 181. when authorised by Act of Parliament, 185. ENQUIRY by sewers jury, S7. See Presentment. ENTRY of appeal at Quarter Sessions, i)J. under Lands Clauses Act not applicable to Commissioners of Sewers, 81. ERECTIONS in bed of tidal river, Kid. navigable river, 64, 184. removal of, 64. of weir, 185. of embankment on foreshore, 235. ESTATE, qualification of Commissioners of Sewers, 38. dyke-reeves, 48. electors of Drainage Board, 2I>7- I inh a . EVIDENCE in Court of Sewen , 89. in aci Li in i again I C i i in oJ Sowers, L98. for illegal dist ress, 133. in other cases, 198. in p. vt inn ut books, L98. inspecti if Court Rolls, 198. hi me of ( 'ommission, 1!)7, if orders of Commission, L97- nl Provisional Order, 197- of record of commutation, L97. ■ I contracts, &c, deposited with clerk oi sewers, L9J of notices signed by clerk of sewers, \'J7- of not ires nf Drainage Board, 197- of liability to repair, 137- ratione tenv/ra , 139. EX OFFICIO Commissioners of Sewers, 30. EXECUTION against Commissioners of Sewers, 195. EXEMPTION from jurisdiction of Commissioners of Sewers, 70. navigable rivers, 68, 70. canals, 70. harbours, etc., 70. from sewers rate, 1 IS. ground between the sea and sea-bank, 118. uplands, 118. liability for repair, 118. proposed exemption in Rivers Conservancy Rill, II s . EXISTING WORKS, jurisdiction of Commissioners of Sewers as to, 53. EXONEEATION from liability to repair, 1 18. may extend to damage caused by vis mayor, 148. provided UO default, 148. evidence, I Is. by extinguishment of tenure, 1 18. by insufficiency of estate, 148. by altera! ion of work, 148. EXPEND1TOR (see also Officers of Sewebs), 12. appointment of {see Forms in Appendix 1!.), 42. duties of, 42. EXPENSES of Commissioners of Sewers, 104. Of jury, 91. rate to be levied for, 101, 105. distress, 130. xxii Index. E3XPENSES continued. exceeding £1,000 For improvemenl or construction of works, 58, L06. 18, L06. dissenl of half tb irs, 59, 106. of purchase of hind, 80. EXTRAORDINARY LIABILITY may exist . L48. evidence of, I 18. EXTRAORDINARY STORM, when it exonerates from liability to repair, 1 18. mandamus to re-imburse expenses caused by, I7<>- emergency meeting of Sewers Court for, 52. PARMER, ids chargeable to sewers, 38. not to sit on the Commission, 38. FEME, may be a Commissioner of Sewers, 3D. FENLANDS, Rivers Conservancy Bill affecting, 28. common outfall with, 29, 106. FERRY rateability of, to sewers, 115. compensation for cutting off access t >, 235. for loss of traffic, 236. whether ownership of entails liability to repair, It,"- BTSHGARTHS, jurisdiction of Commissioners of Sewers, as to, 54. derivation, 56. FISHERY, rateability of, L08, 115. TINES by Commi i aer of Sewers, 159. for what matters, 159. failure t< i pay rates, 159. for failure to repair, 155, 15'.). ' empl of < lourt, 159. opposition to decrees, L60. malicious injury to sewers works, Kill. on officers, 1", Kill. refusal to accept office, 160. purpresture, lii<». on sheriff, 77, 160, 163. on jurymen, 1", 77, 89, 160, 163. on witnesses, Kil. to he admini bered in open Court, 161. to be reasonable, 161. not traversable, 161. enforcement of, 155, 163. Index. xxiii FLOOD, emergencj meeting of Sewers Couri in ca e of, 52. causing, the subject of compensation, 23.">. causes of, LO. FLOODS PREVENTION. See Rivers Conservancy Bill. FLOODGATES, removal of bj Commissioners of Sewers, <)(>, 68. whether ownership of involves liability to repair, 1 17. malicious injury to, 188. FORE.M A N of jury. 88. oath by. See Forms in Appendix B. FORESHORE, title to prim i facie in the Crown, 69. within jurisdiction of Commissioners of Sewers, 69. rights and duties of Crown respecting, 69, 70, 1 15. erection of bank on, 235. interference with, 33, <>'J, 147, 235. FORMS The following Forms will be found iii Appendix B : — writ of dedinius potestatem, granted on application to the Crown Office (House of Lords), 414. writ for taking declaration of sewers, HI. declaration for Commissioners of Sewers, 415. oath by Commissioners of Sewers, 415. (1) of office (23 Hen. VIII. c. 5), 415. (2) of qualification (3 & 4 Will. IV. c. 22), 415. writ of attendance at sewers, 416. notice convening a general Court of Sewers, 416. notice convening special Court, 41 ~. assignment of surveyor of sewers, 118. appointment of bailiff of sewers, 418. appointment of collector of sewers, 418. assignment of expenditor of sewers, 418. warrant for collector to account, 419. bond of a collector or other officer for the due execution of his office, 419. the same of his sureties, 420. oath of collector ami defrayer, 420. same of bailiff, 12(1. precept to bailiff to summon a Court of Sewers', 421. warrant to the sheriff to summon a jury, 421. appointment by the sheriff of clerk of sewers as his deputy. I- I . form of holding Court of Sewers, 122. oath of jury, 422. affirmation in lieu of oath, 122. foreman of jury oath, \-l'-\. presentment by jury of annoyances and defects, &c , 123. presentment b\ jurj of liability by custom to repair, 423. xxiv Indea FORMS — continued. presentment by jury of liability, raMom tenurce, to repair, 124. ii' >t ice i" be jiven of Liabilii ies, 125. t raverse of a presentment , 126. orders of Court of Sewers, 12f>. order to repair wall or bank, 427 order u< remove -ink.' and piles in a fiver, 1-7- order upon presentment of a liability by custom where owner is in default, 427. the same in shorter form, 121). order to cleanse, scour ami repair banks of a stream, I2!». to remove weirs on a river, 130. notice of Court to owner of land to pay co ti oi repair, &c, 130. notice of rate, 432. laws and ordinances of sewers, 432. bye-law of Court of Sewers, 434. entry of minutes of Court, 434. rate and assessment for repairs of sewers, 136. order on particular person to pay a tax, 137. summons to show cause on non-payment of a rate, 437- warrant to take distress for a tax and sell goods, 437- same in another form, 138. decree and sale of lands 1 »y Commissioners for payment of lot. and charges, 438. reply by Inclosuro Commissioners to application for leave t<> mortgage rates, 440. form of mortgage security under 3 & 4 Will. IV. c. 22 s. 12, til), form of transfer of mortgage tinder 3 & 4 Will. IV. c. 22 s. 43, 441. form of mortgage security for aej borrowed for general purposes under 4 & 5 Vic. c. 15 s. 5, 141. form of transfer of same under t & ."> Vic. c. 15 s. <;, 412. petition under Land Drainage Ac:, L861, 21 & 25 Vie. c. 133, to Inclo- sure Commissioners fur Commission of Sewers, 112. petition under Land Drainage Act, L861, 24 & 27, Vie. c. 133, to Inclo- sure Commissioners for drainage district, 443. petition to Inclosure Commissioners for leave to apply Lands Clauses Act, 1845, 444. FOSSDIKE, 32. FRANCHISE, rateability of to sewers, 115. FREEHOLD, qualification for Commissioner of Sewers, 38. FRONTAGER, liability to repair, 143. does not exist at common law, 144. opinion of Callis overruled, 1 14. may not destroy natural barrier against the sea, 33, (>!), L46. but may protect his land by a sea-wall, 146. Index. xxv FRONTAGER— continued. mi river, 1 17- exoneration of, 1 18. nt of, 148. onus proband/i, 153. orders for, 153. commutation, 154. enforcement, 155. GAOL, committal of sewers officer to, 18. period, Is. for contempt of Court, 158. for non-payment of fine, 159. GARDENS, purchase of by Commissioners of Sewers, 77- removal of by Commissioners of Sewers, 66. GAZETTE, advertisement in of proposed purchase of lands, 7 s - GENERAL EXPENSES of Commissioners of Sewers, 108. leviable by rate, 108. enforcement of by distress, 130. GENERAL SEWERS TAX, authorised by 4 & 5 Vic. c. 45, 3, 102. on parish or township, 3, 102. apportionment of, 113. notice of apportionment, 123. appeal against, 123. enforcement of by distress, 129. warrant of distress, 126, 130. • in goods, not on lands, 1 ill*. not repleviable, 131. not a Parliamentary tax, 112. GLEBK, whether rateable to sewers, 115. GOODS, distress on for sewers rate, 12(1. for officer failing to account, 47- GORKS, jurisdiction of Commissioners of Sewers over, 51. derivation of, 56. GOTF.S. jurisdiction of Commissioners of Sewers over, 5 1. derivation, 56. GOVERNMENT, property of, 117. rateability of to Sewers, 117. xxvi Index. GOWT, jurisdiction of Commissioners oi Sewer over, 54. derivation, 56. GRANT title to foreshore by, 69. liability to repair by, 111 . extent of liability, 111, L48 on its prdbcmd/i, 153. exoneration, 148. commutation, 154. enforcement, 155. of land subject to, 121. GRANTHAM, Mr. R. B., on the Land Drainage Act, 48. as to origin of dyke-reeves, 48. GRATUITIES to sewers officers, 44. if paid out of rates illegal, 44. GRAVEL cast on banks from scouring of rivers and sewers, t>7. right of occupier to remove, 67. GROUNDS left by the sea, 70. gained from the sea, 7''. lying between sea and sea -bank, 118. above the level, 118. GUTTERS, jurisdiction of Commissioners of Sewers over, 51. HARBOU11S, whether within the jurisdiction of Commissioners of Sewers, 56. under private Acts exempted, 70. rights of Crown over, 69. diversion of water from, 71. malicious injury to, 188. nuisance to, 184. HATFIELD CHASE, act for draining, 180. HAVENS. See Harbours. jurisdiction of Commissioners of Sewers as to, 5G. hawks ii aw. Sib J., report on River Withani, 111. EEBBING WEARS, jurisdiction of Commissioners of Sewers as to, 54, 56. derivation, 56. HECKS, jurisdiction of Commissioners of Sewers as to, 54, 56. derivation, 56. Index. xxvii HEIR, qualification of, for Commissionership of Sewers, -"> s . HENRY VIII.. Bill of Sowers passed in reign of, 2, 34. HERNE, reading on Sewers, 31. HIGHWAY, nuisance to is indictable, 184, 188. obstruction of, 184, 235. tunnelling under, held not the subject of compensation, 236. HOLLAND, Commission issued to parts of, 50. HOUSE, removal of by Commissioners of Sewer's, GG. purchase of by Commissioners of Sewers, 77- whether rateable to sewers, 7, 111, 117- occupied by sewers officer to be given up on dismissal, 16. by Commissioners of Sewers, whether rateable, I-". HUNDRED FOOT RIVER, bridges of, 12. HUNTINGDON, floods at, 7. Rivers Conservancy Bill affecting, 28. ILLEGAL DISTRESS, action for, against Commissioners of Sewers, 132. evidence, 132. action against distrainer, 132. onus on defendant, 133. justification by statute, 133. presentment and decree not conclusive, 133. ground for resisting the disti - ess, 133. tender of amends, 195. IMPEDIMENTS. See also Obstructions, Works. removal of, 64. IMPRISONMENT by Commissioners of Sewers, 48, 158. for contempt of Court, 4S, 158. punishment of sewers officers by, 48. IMPROVEMENT of works, 54. of works exceeding £1,000, 54. power to borrow for, 74. IMPROVEMENT COMMISSIONERS, consent of, under Land Drainage Act, 1861, 202. meaning of expression, 202. INCLOSURH COMMISSION, now Land Commission, 4. xxviii Index. TNCLOSURE COMMISSIONERS, petition to for obtaining issue of a Commission of Sewers, 1, 37. proceedings by, '>7, 79, - ,,: '>- sanction to borrow by Commissioners of Sewers, 74. application to, 74. reply by. See FORM EN Appendix B. petition to for purchasing land, 79. form of. See Form ix Appendix R. commutation of liability by, 5, 8, 23, 151. petition to for forming a drainage district, 203. INDICTMENT by and norninst Commissioners of Sewers, IS.'!. when it lies against, 183. bow laid against, 186. bow laid by, 181. for damaging property, 188. for common nuisance, 184. to highway, 184. to navigable river and port, 184. for obstruction of navigation, 184. neglect to repair ratinne tenwrce, 185, 196. enlargement of ancient weirs, 185. pollution of water, 185. sitting without qualification, 188. INFANT can lie a Commissioner of Sewers, 39. INFORMATION by quo ivarranto, 45 not applicable to office of clerk of sewers, 45. as to property of Commissioners of Sewers, 18/. INJUNCTION to restrain Commissioners of Sewers, 179. authority of the Court to grant, 179. to restrain the assessment of compensation, 180. enforcement of a rate, 180. proceedings under Land Drainage Act, 1861, 181. erection of an engine for draining the fens, 181. public nuisances, 181. alteration of drains, 181. on application of Commissioners of Sewers, 181. to restrain removal of shingle, 181. deprivation of lateral support In sewer. L82, INJURY, malicious, to sewers property, 188. to sea or river bank, 160, 182, 188. indictment for, 183, 188. INQUIRY by jury (see Presentment), 87. Index. XXIX INSPECTION of books of Commissioners of Sewers, 178, 196. of Court Rolls of manor, 196. of plans, rates, presentments, Are., L96. INSPECTOR under Land Drainage Act, 1861, 4, 37, 79. appointed prior to issue of a Commission of Sewers, 37. purchase of hind, 79. Elective Drainage Hoard, 203. INTERPRETATION of 23 Hen. VIII. c. 5, 6. of terms. Ser Terms. INUNDATIONS, causes of, 10. IRELAND, Sewers Acts do not apply to, 35. Drainage Acts relating to, 35. their working, 35. IRRIGATION, powers of Commissioners of Sewers, as to, 62. ISLANDS within the jurisdiction of Commissioners of Sewers, 56. JERVIS ACT, failure of sewers officer to account not an offence within, 47. penalties under Land Drainage Act, 1861, within, 163. compensation assessed by justices under Lands Clauses Act, 222. JUDGMENT on purchase of land, 77, 230. on trial of presentment, '.)•"». evidence of, 197. JUDICATURE ACT, rules of Court, 1883, affecting Crown practice, 166. notice to treat not a " debt owing " within, 217. JURISDICTION of Commissioners of Sewers over works, 53. obstructions, 64. navigation, 68. foreshore, 69. borrowing, 71. purchase of land, 76. exemptions from, 70. excess of. See Legal Proceedings. of arbitrator under Lands Clauses Act, 225. of jury under Lands Clauses Act, 22!). JURY, under 2:; Hen. VIII. C. 5, 2, 81. under 3 & 4 Will. IV. c. 22, 87- xxx Index. JURY — continued. summons of, 87. presentment by (see also Presentment), 87. whence summoned, 87. exemption from serving, 88. duties of, 88. standing juries, 48, 88. composite juries, 90. may be compensated, 45, 91. may be fined, 47, 77, 89, 160, 163. may be dispensed with, 86, 94. liability to repair a question for, 153. assessment by under Lands Clauses Act (see Compensation), 227- lands injuriously affected, 227. 2.". 1 lands taken, 227, 234. warrant to summon, 228. sheriff to preside, 229. penalties for misconduct, 229. notice of inquiry, 229. claimant not appearing, 22'J. separate verdicts, 229. judgment, 230. special jury, 230. assessment of compensation, 231. leaseholder, 232. trade profits, 232. landlord and tenant claims, 232, 233. titheable lands, 233. lands injuriously affected, 234. compensation when not recoverable, 236. no set-off for benefit, 236. application of purchase-money, 237- rent-charge, 237. under 3 & 4 Will. IV. c. 22, 77. oath of (see Forms in Appendix B), 88. JUSTICES, ex officio Commissioners of Sewers, 43. might execute office of on expiration of the Commission, 42. to decide questions of removal of obstacles by Commissioners of Sewers, 66. assessment by under Lands Clauses Act, 219. costs, 240. KEDELS, jurisdiction of Commissioners of Sewers as to, 54, 50. derivation, 56. KENSINGTON PALACE, sewers rates not leviable in, 117- KETTLES. See Kedels. Index. x \ x i KING, prerogative right to issue Commissions of Sewers, 33. duty to protect the realm against the sea, 33, (J!), 1 lit. rights of as to foreshore, 70. lands of, rateable to sewers, 117. distress on lands of, 127. distress in residence of, not leviable, 127. LANCASTER, Duchy Of, rights of saved. See sections 14, 18 of 2'5 Eenry VIII. c. 5, Appendix A LAND, purchase of by Commissioners of Sewers, 7 K K xxxii Index. LANDS CLAUSES CONSOLIDATION ACT, incorporated in Land Drainage Act, 1861, 80, 213. See Compensation. LANDLORD, sewers rate a tax on, 118. agreement by, with tenant, 119. claims by under Lands Clauses Act, 232. LATERAL SUPPORT to sewers, 182. LAWS of Commissioners of Sowers, 157. authority for, 157- purposes of, 157. duration of, 158. costs of, 158. opposition to, 160. forms of. See Appendix B. LEASE, definition of under Lands Clauses Act, 214. compensation for lands, subject to, 232, 237- LEASEHOLDER, when qualified to be Commissioner of Sewers, 38. LEGAL PROCEEDINGS by and against Commissioners of Sewers, 166. certiorari, 166. mandamus, 173. injunction, 179. indictment, 183. actions, 189. appeal to Quarter Sessions, 95. pleadings, 198. by and against Drainage Boards, 208. LEVEL, when liable to repair, 148. LEWIS, Sir George Cornewall, his connection with Land Drainage Act, 1861, 31. LIABILITY to contribute to sewers rate (see Rate), 107. to repair, 107, 137. origin of, 137. how established, 137. extent of, 148. by prescription, 138. custom, 139. ratione tenurcc, 139. grant, 141. covenant, 142. Index, xxxiii LIABILITY— continued. frontage, 143. asus ret and ownership, 1 17. onus probandi, 153. exoneration of, 148. commutation of, l"il. enforcement, 155, 159. presentment as to and notice of . See Poems i.v Appendix B. of Drainage Boards, 208. LIGHTHOUSE, rateability of, 135. LINCOLNSHIRE, Rivers Conservancy Bill affecting, 28. custom of on sale of lands in, 129. variety of sewers practice in, 94. LOANS to Commissioners of Sewers, 71, 75. See Borrowing. LOCAL ACTS, large number of, 8. excluding operation of Sowers Acts, 70. incorporating Sewers Acts, 86. LOCKS cause of floods, 11. removal of, 54, 64. rateability of, 135. LONDON, Commissioners of Sewers for City of, 71 ■ LORD OF THE MANOR, sale of lands of, 127. compensation for common lands of, 238. LORD CHANCELLOR, appointment of Commissioners of Sewers by, 35. LOWLANDS, principle of division of lands into, 18. See Rivers Conservancy Bill. MABBLETHORPE, the custom at, 118. MAGNA CARTA, early Commission of Sewers confirmed by, ?j I. as to new works, 60. removal of weirs, 64. erection of weirs, 185. MAINTENANCE of works (see also Works), 54. power to borrow for, 72. to purchase land for, 76. MALICIOUS INJURY. See Injury. k K 2 xxxiv Index. MANDAMUS, writ of, 173. a prerogative wi-it, 17 1, distinction between relief by action and, 171- a civil proceeding, 175. delay a cause for refusing, 175. previous demand and refusal of,' 175. instances of application, 175. for swearing in Commissioners of Sewers, 175. to compel compensation, 17">. to levy rate, 176. to execute works, 177. to inspect books of Commissioners of Sewers, 178. form of mandamus, IJb. to repair, 149. to assess compensation under Lauds Clauses Act, 222. to take up award, 226. to sheriff to summon a jury, .MANOR, compensation for common lands taken, 238. inspection of Court Rolls of, 19G. sale of lands of, 127. MAP, inspection of, 196. See Forms also in Appendix B. (Reply by Commissioners to application for leave to mortgage rates.) MARITIME WORKS. See Works. jurisdiction of Commissioners of Sewers over, 56. MARKETS, rateability of to sewers, 111. MARSH, rateability of to sewers, 111, 115. proprietors of petition by, 5, 202. MARSH BAILIFF. See Dyke-reeve. MAYOR, ex officio Commissioner of Sewers, 43. MEADOWS, rateability of to Sewers, 111. MEANING OF TERMS, " person " includes corpoi'ation, 124, 125, 155. Court of Sewers, 50. watercourse, 58. owner, 215. proprietor, 63. special act, 214. promoters, 214. lands, 214. lease, 214. parties interested, i'l 1. Improvement Commissioners, 202. Index. wx\ MEETINGS of Commissioners of Sewers, 13. of Drainage Boards, 210. See Courts of Sewers. MEMBERS of Drainage Boards, 206. qualification of, 200. election of, 208. METROPOLITAN SEWERS, examples of liability to repair, 138 transferred to Metropolitan Board of Works, 71. MIDLANDS. principle of division of lands into. See Rivers Conservancy Bill, ' -. MILLDAMS, cause of floods, 11. removal of, 58, 64, 66. with owner's consent, ,00. without owner's consent, 67. MILLS cause of floods, 11. removal of, 58, 64, 66. with owner's consent, 66. without owner's consent, 67. rateability of to sewers, 111. compensation for damage to, 235. MINUTES, of Sewers Courts, production of, 133. inspection of, 196. of meetings of Drainage Boards, 211. evidence of, 211. MOOR. See Forms in Appendix B. petition of proprietors of, 5. rateability of, to sewers, 111. MORTGAGE, of rates of Commissioners of Sewers, 74. under Commissioners Clauses Act, 1847, 75. compensation for laud, subject to, 237. for form of mortgage security, under 3 & 4 Will. IV. c. 22 ; transfer of same, I n . „ ... „ , :, , . . , , T . ,_ > Sec Appendix B. for form of mortgage security, under 4 & .> \ ic. c. 15 ; V transfer of same, ' MORTAGOK, in receipt of rents and profits, liable to repair, 140. whether rateable to sewers rate, 116. MUD cast on banks from scouring of streams, &c, 07. right of occupier to remove, 67. NATURAL BARRIER against the sea, 33, 69, 147, 235. distinction between and artificial, 146. xxxvi Index. NAVIGABLE RIVER, jurisdiction of Commissioners of Sewers over, "><>. removal of obstructions in, 64. under private A.cl ed, 7". nuisance to, is indictable, 184. 1,111 of, L8 1. NAVIGATION, whether within purview of Commissioners of Sewers, 68. indictment for obstructing, 184. NAVIGATION AUTHORITIES, 9, 70. NEGLIGENCE of Commissioners of Sewers, 191. action for, against Commissioners of Sewers, 191. of Commissioners servants, 192. of Commissioners contractor, 192. NENE RIVER, 9. NENE OUTFALL, Commissioners of, 9. exempted from, Commissioners of Sewers, 71. NEWSPAPER, advertisement in, 51, 58, 78, 87. of Court of Sewers, 51. of adjournment of Court,. 51. of proposed works, exceeding £1,000, 58. of proposed purchase of land under the Land Drainage Act, 1861, 78. NEW WORKS, jurisdiction of Commissioners of Sewers, as to, 54, 59. early controversy respecting, 6, 59. authorised by 3 & 4 Will. IV. c. 22, 3, 6, 61. restrictions as to, 61. consents required for, 61. present law, 61. if in substitution for old works, 62, 154. purchase of land for construction of, 62. power to borrow for, 72. NORTHAMPTON, county of, Rivers Conservancy Bill affecting, 28. NORFOLK, county of, Rivers Conservancy Bill affecting, 28. NORTH BRINK BANK, 9. NORTH LEVEL COMMISSIONERS, 9. NOTICE to officers of sewers to surrender property, 46. under Land Drainage Act, 1861, 198. previous to purchase of lands, 79. service of, 79. of Court of Sewers, 50. Index. xxxvii NOTICE— continued. proof of, 51, 197- service of, 198. of Drainage Boards, L98, 208. proof of, L98, 208. if appeal to Quarter Sessions, 96. service of, 97. of action, 195. to treat under Lands Claused Act, 215, 21G, 228. of claim under ,, ,, 223. of assessment by jury 22/. NOTICES convening a Court of Sewers, "j of liabilities, > See Forms in Appendix B. of repairs, ) NUISANCE, indictment for, 184. to highway, 184. 1 1 > navigable river, 184. removal of by Commissioners of Sowers, 64. Hues inflicted for, 160. OATH of agent acting for Commissioners of Sewers, 3S. of Commissioners of Sewers, 39. of office, 39. of qualification, 40. of jnry, "J of bailiff, f See p 0RMS IN Appendix B. of collector, I affirmation in lieu of, J OBJECTIONS TO RATE, under procedure of jury presentment, 122. Land Drainage Act, 1861, 122. 4 & 5 Vic. c. 45, 123. OBSTRUCTION, removal of by Commissioners of Sewers, 64, 66. cannot remove ancient weirs, 64, 66. compelling persons to remove, 65. Acts relating to, 66. removal of, with owner's consent, 66. without owner's consent, 66. compensation for removal of, 67. removal discretionary, 6/. OCCUPATION, beneficial necessary for sewers rate, 110, 121. for poor rate, 135. OCCUPIER may appropriate scourings from river bank, 67- primarily liable to sewers rate, 118, 120. xxxviii Index. OCCUPIES cordrnmed. pecial sewers rale enforceable against, 58, 106. presentment againsl predecessor, 90. OFFICE, qualifical ion by, 39. oath of, 40. whether rateable to sewers, 117- iif sewers, refusal to accept, 160. mandamus to fill, 175. OFFICERS Commissioner of Sewers, 12. clerk (see Clerk of Sewers) 42. bailiff, 42. surveyor, 42. collector, 42. expenditor, 42. treasurer, 43, 44. dyke-reeve (see Dyke-reeve), 48. appointment of, 42. duties of, 42, 124. security from, 43. gratuities to, 44. remuneration of, 44. recovery of salaries, 45. removal of, 45. refusing to give up property of Commissioners of Sewer. , 16 punishment of , 47, 160. accounting by, 47. distress for not accounting, 47. bankruptcy of, 47. imprisonment of, 48. presentment by, 89. of Drainage Boards, 208. See Forms in Appendix B. ONUS PROBANDI on Commissioners of Sewers in action for illegal distress, 133. in question of liability to repair, 153. ORDEE of Commissioners of Sewers, 157, 176. after I rial of presentment, 89, 176. without jury, 94, 176. appeal to Quarter Sessions from, 95. may be given in evidence, 148, 197. removal of by certiorari, 166, 170. of marsh bailiff not compulsory, 153, 176. of Drainage Boards, 206, 208. ORDINANCES of Commissioners of Sewers, 157. authority for, 157. Index. xxxix 11 1) I N ANCES— continued. purposes of, 157. duration of, 158. costs of, 158. opposition to, Kill. See Forms in Appendix B. ORNAMENTAL WORKS, jurisdiction of Commissioners of Sewers as to, 66. power to purchase, 77. OUSE, evidence as to river, 7, 12 OUTFALL. See also Works under Land Drainage Act, Ft. 111., 5. of fen lauds, 29, 106. clearing and repairing, 58. making new, 62. OVERFLOW of tide, 148. OWNER, definition of under Land Drainage Act, 1861, 119. Lands Clauses Act, 214. when absent, compensation to, 218. special rate on under Land Drainage Act, 119. rights as to scourings of river, 67- sale of land by to Commissioners of Sewers, 76, 77, 78, 79, 233. presentment against predecessor of, 90. consent when required. See Consent. OWNERSHIP, liability to repair by reason of, 147. of banks and walls, 147. no common law liability, 147. exoneration from liability, 148. commutation of liability, 151. enforcement of liability, 155. OYER AND TERMINER, Sewers Court has powers incident to Court of, 19, 50. PALACE, distress not leviable in when occupied by sovereign, 117, 127. PARISH, sowers tax in gross ou, 102. enforcement of, 129. PARKS, use of by Commissioners of Sewers, Q. compensation, 67- removal discretionary, 67- PROFIT OF FISHING, rateablity of, 108, 115. liability to repair by reason of, 147- PROFITS rateability of to sewers, 116. compensation for loss of under Lands Clauses Act, 232. Index. xliii PROPERTY rateable to sewers, 110. Land or tenements, 111. tithes, 111. glebe, 115. copyhold, 115. ferry, 115. profit of fishing, 116. parks and warrens, 116. mortgagors, 116. of Commissioners of Sewers, 81 . rateable to poor rate, 135. indictment for injuring, 187, 188. distress on, 126. PROPRIETORS, consent of under Land Drainage Act, 1861, 4, 50. definition of, 58. PROSECUTIONS by and against Commissioners of Sewers, 106. PROVISIONAL ORDER, effect of a, 203. has no validity until sanctioned by Parliament, 204. petition against, 204. costs of, 205. to put in force Lands Clauses Act, 62, 70. forexecution of works exceeding £1,000, 62. for purchase of land, 79. is evidence that requirements of Land Drainage Act, have been complied with, 197, 203. PROXY, voting by at election of Drainage Board, 209. PURCHASE OP LAND, by Commissioners of Sewers, 76. under 3 & 4 Will. IV. c. 22, 76. purposes of purchase, .76. restrictions, 76. conveyance, 76. compulsory purchase, 76. jury, 77. judgment, 77. costs and purchase-money, 77. agreements filed, 77. persons under disability, 77. application of purchase-money, 77 title, 77. pui-chase of other lands, 77- gardens, parks, &c, 77- sale of superfluous land, 77- xliv Index. PURCHASE OF LAND— continued. Land Drainage Act, 7> s - by agreement, 79. compulsory purchase, 78. advertisement, 78. notices, 79. petition to Inclosuro Commissioners, 79. proceedings by Inclosure Commissioners, 79. inspector, 79. Provisional Order to put in force Lands Clauses Act, 7'-' costs of Inclosure Commissioners, 80. incorporation of Lands Clauses Act, 80. See also Compensation, 213. vesting of property, 81. view and cognizance of Commissioners of Sewers, 81. power to borrow for, 72. PURPOSES of sewers rate, 104. to defray works executed, 105. law expenses, 105. expenses of clerk and officers, 105. costs, charges and expenses incurred by statute, law or custom, 105. PURPRESTURE fine may bo inflicted for a, 160. QUAKERS exempt from oath of Commissioner of Sewers, 40. to make statutory affirmation, 40. QUALIFICATION of Commissioners of Sowers, 38. of dyke-reeve, 48. of justices acting under Lands Clauses Act, 220. of members of Drainage Board, 20G. of electors of Drainage Boards, 207. QUANTUM OF BENEFIT, a question for the Commissioners, 108. QUARTER SESSIONS, appeal from Commissioners of Sewers to, 5, 95, 122. from Drainage Boards, 5, 206. certiorari not ousted, 96. other remedies ousted, ( J6. time for appealing, 96. notice of appeal, 96. form of notice, 96. Commissioners appear by their clerk, 97. recognizances, 97- entry of appeal, 97- adjournment, 97- Index. xlv QUARTEB SESSIONS— continued. costs, 97. special case, 97. reference to arbitration, 97. C. L. P. Act, 1845, incorporated. See Arbitration . QUASI CORPORATION, Commissioners of Sewers, a, 83, 184, 194. QUAYS, malicious injury to, a felony, 188. QUO WARRANTO does not lie for dismissal of clerk of sewers, 45. not applicable to offices held at will, 45, 46. e.g., under the Bedford Level Corporation, 4(i. QUORUM, at Court of Sewers, 51. under 3 & 4 Will. IV. c. 22, 51. Land Drainage Act, 1861, 51. application for loan to be signed by, 75. RACK RENT ascertained in calculating poor rate, 120. RAILWAYS, effect of, on navigation, 12. cause of floods, 12. embankments of, 13, 235. construction of bridges, interfering with foreshore, 234, 235. RATE. See also Poor Rate. sewers, not a Parliamentary tax, 119. how made, 101. with or without jury, 101. appeal to Quarter Sessions, 95. sub-division of district, 102. tax in gross, 102. apportionment of, 103. purposes of the rate, 104. costs and expenses of Commissioners, 104. litigation, 105. all expenses incurred under any Act, law or custom, 106. special rate, 106. expenses over £1,000, lOfi. works must be executed, 10fi. principle of rating, 6, 107. distinction between liability to contribute and liability to repair, 107. principle of benefit, 108. to be levied according to the value of the property, 109. must be a rateable occupier, 110. property rateable, 110. lands or tenements, 111. xlvi Index. RATE — continued. tithes, 111. glebe, 115. copyhold, 115. commons, 115. ferry, 115. profit of fishing, 11G. parks and warrens, 110. mortgagors, I Hi. Crown lands, 117. distress on, 117. exemptions, 118. persons liable, 118. special rate on owner, 119. landlord and tenant, 119. outgoing and incoming tenant, 119. a deduction from rent, 120. mortgage of rates (see Borrowing), 74. notice of rate. See Forms in Appendix B. order to pay. See Forms in Appendix B. objections to rate, 122. if assessed by presentment, 122. without presentment, 122. appeal against apportionment of tax in gross under 4 & 5 Vic. c. 45, 123. appeal by certiorari (see Certiorari), 121. enforcement of rate, 124. distress, 124, 120. warrant, 125. to whom issued, 125. execution, 125. on lands, 125. where levied, 125. power to sell lands, 125. lands of the king, 127. amount to be sold, 129. cattle of stranger, 129. tax in gross, 130. replevy, 131. rateability of property of Commissioners of Sewers to poor rate, 135. rateability of dams, locks, sluices, &c, to poor rate, 135. lands and buildings occupied by Commissioners (see Poor Rate), 135. mandamus to levy, 170, 177. inspection of, 196. rent-charge on rates under Lands Clauses Act, 237. mortgage of rates, 74. See Forms in Appendix B. RATEABLE VALUE, sewers rate a deduction in calculating, 120. Imlr, xlvii BATING, rate bow made, MM tax in gross, Mi2. purposes of the rate, 104. special rate, L06. principle of rating, 107. property rateable, 110. persons rateable, 118. objections to rate, 122. enforcement of rate, 12 I distress, 126. replevy, 131. action for illegal distress, 132. property of Commissioners of Sewers, 134. RATJONE RESIANTIJE, liability to repair, 139. HATIONE TENURE, liability to repair, 13i>. cannot be created by presentment , !»_' form of presentment, 140. origin of liability, 1 10. benefit not necessary, 140. corporation may be bound, 1 lu who liable, 140. bow established, 141. extent of liability, 148. onus prdbandi, 153. exoneration, 153. extinguishment, 153. commutation, 5, 8, 23, 151. proposed under Rivers Conservancy Bill, 20, 21. enforcement, 155. mandamus to repair, 174. neglect to repair indictable, L85, 1UG. RAWLINSON, Me., evidence of, 10, 11. REALM, duty of sovereign to protect against the sea 33 69 L45 RECOGNIZANCE, in traverse of presentment, 91 . in certiorari, 170. in indictment, 183. on appeal to Quarter Sessions, 97- RECORD, Sewers Court, a Court of, 1!'. of proceedings of Sewers Court, '.»•'! 122. of commutation of liability, \'.>7. L I. xlviii Index. RECORDER, / Commissioner of Sewera, 13. REGULATIONS. See Courts of Sewi bs as to meetings of Courts of Sewers, I'-' RENT, sewers rate a deduction from, 120. RENT CHARGE, commutation of liability by, L54. priority over other incumbrances, 154. in lieu of purchase-] ley under Lands Clauses Act, L845, 237. charge on tolls or rates, 237. enforcement of, 237- compensation for lands subject to, 237- tithe rent-charge, rateability of to sewers, 1 13. REPAIR of works, 58. liability to, 107, 137, 1 18. extends to damage, however caused, 1 IS. onus probanda, 153. power to borrow for, 72. purchase lands for, '76. presentment must disclose liability to, 92. and want of, 93. order by Commissioners to execute 1 , 93, 94, Loo. marsh bailiff to execute, 153, 176. mandamus to, 177- REPLEVY, 131. REPORT of House of Lords Committee on Conservancy Boards. See APPENDIX D. of inspector under Inclosure Commissioners, 1. -".7. 203. REPUTATION, evidence of in establishing liability to repair, 141. of distress for sewers rate, 131. opinion of Callis, 131. sewers tax in gross not repleviable, L31. RETURN to writ of certiorari, 171 . amendment of, 172. to mandamus, 1 78. RETURNING OFFICER at election of Drainage Board, 208. duties of, 209. RIPARIAN OCCUPIER, righl to river scourings, 67- RIVER, jurisdiction of Commissioners of Sewers as to, 54, 56, 57- cleansing, widening, straightening, 58, 72, 7<>- Index. xlix RIVER— continued when in adjoining district, 63 removal "l obsl ructions in. (i I. scourings of, < >7 scourings cast on banks, 67. improving navigation of, 68 jurisdiction when excepted, 7". malicious injury to banks of, 188. rights of frontager on, 147- diversion of by Commissioners of Sewers, 71, L84 RIVERS CONSEB7VANCY BILL, 18S3, previous bills, 1, - Part t. — constitution of conservancy district, L3. application for Provisional Order, 14. action of Local Government Board, 1 1 inquiry by inspector, 15. draft Provisional Order, 15. description of lands to be rated, 15. sub-districts ami differential rating, Hi. special benefit, 16. special rate. 111. outfall works, 16. partial or total exemption from rating, !7 Provisional Order, 17- principle of division of lands, 18. principle of rating, 18. Board, a body corporate, 18. Part n. — powers of Conservancy Board, V). purposes of Act, 19. powers as to works. 111. compensation, 20. purchase of laud, 20. inspection of district, 2i>. commutation of liabilities, 20, 21, 22. enforcements of liabilities, 22. provisions respecting Local Acts, 21 respecting Commissioners of Sewers, 21. expenses and rates of Board, 2.">. powers to exempt from rates, 25. special private improvements, 25, 26. application of the Improvement of Land Act, 1864, 2t, 26. municipal body, may lie a Conservancy Hoard, 26 provisions as to urban authorities, 26. power tn contract with sanitary authority. 27. provisions as to fen lands, 27. 28. contributions From fen lands, 2s. 29. ROYAL PALACE, distres nol leviable in. 117. 127 T I ! 1 Index. RULES OP COURT, Crown practice (1883), L66. certiorari (1844), 169. order us to costs, 166, 173. s. [VES, floods at, 7- State of river at, 12. SALE, on distress for sewers rate, 121, 12ii, 12s. of goods, 121. of lands, L26. evidence of, 197. decree of. See Forms i.\ Appendix 15. SANDWICH HAVEN, exempted from Commission of Sewers, "1 • SAVINGS, rights of local Acts, 8, 7<>- under Rivers Conservancy Bill, 21. SCOT, includes sewers rati-, 120. SCOTLAND, Sewers, Acts do nut apply, 35. SCOURINGS on river and sewer banks, 67- rights of riparian occupier to, 67- SEA, jurisdiction of Commissioners of Sewers as to, 56. rights of Crown over lied of. 69. SEA BANK, property in, 69. power to erect, 66, 177- natural barrier may not be destroyed, 69. injury to, L82, neglect to repair is indictable, 185. subject of compensation, 235. SEASHORE within jurisdiction of Commissioners of Sewers, 7- of Drainage Boards, 208. iif notice tn treat under Lands Clauses Act, 215, 217. of rule nisi for a certiorari, 168. SEWERS, derivation, 32, 50. jurisdiction of Commissioners of, 55. scourings of, 07. rateability of to poor rate, 135. lateral support to, L82. injury to, ICO, 188. SEWERS, Commission ok, origin of, 1, 31. issued by Crown, 2, 31. purposes of, 32. causes of, 32. early statutes, 2. Bill of Sewers, 2. ■) I, existing Sewers Acts, 2, 35. present mode of issue, 2, 35. under 23 Hen. VIII. c. 5, 2, 35. form of Commission, 33. tilling up vacancies in, 36. under the Land Drainage Art , 3, 3(5, 37- evidence of issue of Commission, 197. duration of Commission, 41 . SEWERS, Commissioners of, qualification, 38. freehold qualification, 38. leasehold qualification, 38. agency qualification, 38. residence in county, 38. it ofilcio, 3'J. penalty for acting unqualified, 39, 16 1. oath of office, 39. oath of qualification, 40. penalty for sitting unsworn, 10, 104, 188. Quaker, 40. offices of, 12. meetings (see also Courts), 49. [lowers and duties, 53. as to existing works, 5 1. new works, 59. removal of i ibsi ruci ii ms, 6 1. navigation, 68. the foreshore, 69; local authorities, 7" lii Index. SEWERS borrowing, 71. purchase ol lands, 7 ( >. 213. survey and inquiry by (see Presentmen i I, S .V rating by (see Rati I, L01 . costs and expenses of, 104, 130. may be enforced by distress, Hit L30 warrants of distress by, L24, L25. actions against for illegal distress, 132. prop Tty of, 77- 81, 82, 2.'J7 ■ rateability to poor rate, 135. distres i on property of, - ; >7 ,i ut borise I to make law s, 157 ordinances, \~>7 decrees, L57- to inflict punishment . L58. imprisonment, L58. lines, L58. amercements, \(<-. penalties, l*>'">. enforcement of, 1-1, lii-"> legal proceedings l>y and against, L65. certiorari, L66. mandamus, 173. injunction, 17!'. indictment, l< s -">. actions, 189. property of, how laid in indictment, IS6. a quasi corporation, 82, l!'t. may contract without personal liability, 191. execution against, 195. books of inspection of, L98. compensation by, under the Lands Clauses A.ct, 213. SEWERS COURTS. See Courts. NKWKliS OKI'MCKKS. »SV<; OFFICERS. SEWERS RATES. See Rate. SEWERS TAX. See Tax in Gross. SHERIFF, i i officio Commissioner o\ Sew ers, 13. to summons sewers jury, 77. s 7 may be fined for default, 77, 160, 163, 229 clerk of sewers acting as deputy, 87. duties of , under Lands Clause- Act, 228. to give judgment , 2o0. writ of attendance a1 Sewers .Court, 87. appoint menl ol depul j . s 7- Sr, Forms in Appendix H. Index. liii SHINGLE, injunction to restrain taking, 181. prosecution for removing, 1 16. SHOOTING, right of n. >t the subject of compensation, 2:5(1. SHORE, jurisdiction of Commissioners of Sewers as to, 09. right of Crown to, 69. erection of bank on, 1 16, 235. interference with, 33, 69, 1 17, 235. SILTING of bed of river, 11, 12. SLUICES, repair of, 55. rateability of, 135. SOAK VALLEY, floods in, 11. SOMERSETSHIRE DRAINAGE ACT, provisions to commute liabilities, 53. See APPENDIX C. SOVEREIGN, prerogative right to issue Commissions of Sewers, 33. 145. to maintain foreshore, G9. to protect lands from sea, 09, 145. lands of rateable to sewers, 117- distress on, 127. distress in palace of not leviable, 127. SPECIAL ACT, meaning of term, 211. SPECIAL CASE, on appeal to Quarter Sessions, '.'7. by arbitrator, 97, 225. SPECIAL JURY in assessment of compensation, 230- SPECIAL MEETING of Sewers Court, 52. appointment of, 52. notice of, 52. business to be transacted at , 52. SPECIAL RATE for expenses exceeding Si, 000, 58, L06 a charge on the owners, 58, L06. procedure, 58. proprietors may dissent, 59, 106. if works not carried out rate cannot be levied. 106 enforcement of, 1 3d. liv Inden STAKES, emi ival of in ;i river 65, 67- unlawful removal of, L88. Seeorder to compel removal of, Appendix B. STAMP, in notice to treal under Land Drainage Act, 217 STANDING JURIES held illegal, 48, 88. institution df, succeeded by dyke reevi . 18, 88. STATUTES of SEWERS, 2:5 Urn. VIII. C. 5 7 Anne c. 1". 3«S 1 Will. IV. c. 22 I A ."1 Vic. '•. to. 12 & i:l Vic. c. 50. 24&25 Vic. c. 133. These statutes will be found set nut in Appendix A, pp. 246, 272, el seq. For other statutes .see List of Statutes. STORAGE DF WATER, report, of Select Committee, 1 nuisance by, L85 STRAIGHTENING, rivers, sewers and watercourses, 58. power to borrow for, 72. to purchase land for, 7. STRL'AMS, jurisdiction of Commissioners of Sowers as to, 54, 56. maintenance of, 58, "2, 7<>. cleansing ami repairing, 55, 72, 7<>- deepening and straightening, •">.">, 72, 76. when in adjoining dist net , <>.">. removal of obstructions in, 64. seourings of, <>7- SUBMISSION TO ARBITRATION may 1"' made a rule of Court, 225. SUBSOIL DRAINAGE i I .owe of floods. II). SUBTERRANEAN WATER, diversion of, 236. SUFFOLK, River ■ Con er\ ancj Bill affecting 28 Index. Iv SUMMONS, for payment of sewers rate, 124. proof of, 198. service of, 198. SUNDAY, Sewers Court may he held on, •">-. SUPERFLUOUS LANDS, sale of by Commissioners of Sewers, 77 ■ SUPERSEDEAS, writ of, 41. dissolution of Commissioners of Sewers by, 11 . SURETIES, for sewers officers, 43. bond of, -13 discharge of, 13 by fraud of officer, 43 by acceptance of inconsistent office, l"> where time is given to principal, 13 on change of duties, 13 SURVEY, by Commissioners of Sewers, 85 by engineers, &c, 85 by jury, 87 SURVEYORS. See Officers. of sewers, apportionment of rate by, 123. appointment of, 42. See Form in Appendix B. duties of, 42. under Lands Clauses Act, costs of, 239. compensation ascertained by, 229. TAX IN GROSS. See also Rate. authorised by 4 & 5 Vic. c. 45, 3, 1(12. on parish or township, 3, 1(12. according to benefit, 103. apportionment of, 103. notice of apportionment, 123. appeal, 123. enforcement of by distress, 12L>. warrant of distress, 12(5, 13(1. on goods, not on lands, 129. not repleviable, 131. not a Parliamentary tax, 1 12, 11!). TEMPEST, when exonerates from liability to repair, 1 IS TENANT, agreement with landlord as In sewers rate, I L9 sewers rate a deduction from rent, 120 Ivi Index. TEN ANT— continued. apportionmenl between outgoing and incoming tenant of sewers rate, 120. . <.ni|u ii . ,ii i.in mi. It Lands Clauses Act, 220, 232, 233. by justices, 220, 221. by jury, 227, 232, 233. by arbitrator, 222. TENEMENT, extent of word, 111. TENDER OF AMENDS in action of trespass, L95. TENURE, rateability of things in, 111. liability to repair by, L39. See ratione tew f'i . TERMS, " person " includes " corporation,'' 121. Court of Sewers, 50. watercourse, 58. owner, 119, 215. proprietor, G3. special Act, 214. promoters, 214. lands, 214. lease, 214. par-ties interested, 214. Improvement Commissioners, 202. THAMES jurisdiction over bed of river, 69. TURING, Sir Henry, author of Land Drainage Act, 186] . 3. observations on Land Drainage Act, L861, Pari ii., 202. TIDAL RIVER jurisdiction of Commissioners over, 50. rights of Crown over, 69. TIDE, extraordinary, when it exonerates from liability to repair, 148, 176. emergency meeting of Sewers Court fur, 52. TITHES, whether rateable to sewers, 111. commutation of, 113. compensation for under Lands Clauses Act, 233 TITHEABLE LAND, compensation for under Lands Clauses Act, 233. TITHING-MAN fined for neglect, 47. TITLE, no jurisdiction over by arbitrator under Lands Clauses Act, 225. Dor by jury, 229 Index. Ivii TIME for appealing to Quarter Sessions, W> for making award under Land Drainage Act, 98'. under Lands Clauses Act, 22o\ for repayment of money borrowed by Commissioners of Sewn.-:, 7 t, 75. for giving notice of assessment by jury, 227. for payment of money on purchase of land, 81. for application for writ of certiorari, 170. TOFTS, rateability of to sewers, 111 TOLLS, rateability of, 135. rent-charge a charge on, 2-">7- TOWN CLERK, ex officio Commissioner of Sewers, 43, TOWNSHIP, tax in gross on, 102. apportionment of, 103, 104. purposes of, 104. enforcement of, 129. cannot be replevied, 131. may be amerced, 162. TRADE PROFITS compensation for, 232. TRANSFER of securities for money borrowed by Commissioners of Sewers, 73, 74. TRAVERSE of presentment, 91. form of, 91. trial of, 91. record of proceedings, 93. of decree, 94. proceedings in lieu of, 95. TREASURER, not to be clerk of sewers. 1 1 penalty, 44. liability of, 43. TRENCHES, jurisdiction of Commissioners of Sewers as to, 54. TRENT VALLEY, floods in, 11. TRESPASS, art inn of, for illegal distress, 132. TRIAL of present men! , 91. TUMBLING BAY, jurisdiction of Commissioners of Sewers at to, 55 Iviii Index. TUNNELS, jurisdiction o i Commissioners of Sewer a to, 55. UMPIRE under Lands Clauses Art. 234. appointment of, '221. by arbitrators, 224 by justices, 224. UNDERGROUND WATER, diversion of, 236 UPLANDS. See Rivers Conservanci Bill. drainage of, 10, 11. proposed tn be rated under Rivers Conservancy Bill, 15, 16, I s exempted from sewers rate. 118. USUS REI, liability to repair by, 147. exoneration of liability, 148. commutation of liability, 154. enforcement of liability, 155. VACANCIES in Commission of Sewers, 36. in Drainage Boards, 206. VALUE, sewers rate, levied according to, 109. voting at election of Drainage Board by rateable, 208. VENDOR of land to Commissioners of Sewers, under 3 & 4 Will. I V. c. 22, 77- persons under disability, 77- under Land Drainage Act, 1861, 7^ under Lands Clauses Act, 217. persons under disability, 237. VERDICT on trial of presentment, 91. entered of record, 93. order of Commissioners on, 95. evidence of, 19". V ESTING nt lands purchased by Commissioners of Sewers, 77. 238, 239. of other property purchased,81, 82. of property within the "view, cognisance, ami management,' 1 81, 82. VIEW by jury under 3 & 4 Will. I V r . c. 22, 77- under Lands Clauses Act, 229. property within Commissioners of Sewers view, 81, 182, L87- VIS MAJOR, when exonerates from liability to repair. 148. from negligence, 193. mandamus to reimburse expenses caused by, 176. ///./. . . lix VOTER, at election of Drainage Board, 207. qualification of, 207. scale of voting, 207. proceedings at elections, 2o;s. VOTES at election of Drainage Board, 207. regulated by acreage, 207. scale of, 208. may be given by proxy, 209. validity of, 209. question decided by majority of, 210. WALLS. See ah<> Banks. jurisdiction of Commissioners of Sewers over, 55, property in, 55. definition of, 55. injury to, 188. repair and maintenance of, 58, 7-, 7<>. right of way along, S2. WARPING, powers of Commissioners of Sewers as to, (',2. WARRANT of Commissioners of Sewers to expel officer, 125. execution of, 125. levy of distress by, 125. ' under I & 5 Vic. c. 45, 130. under 7 Anne c. 10, 125. form of warrant. See Forms in Appendix B. for collector of sewers to account to sheriff to summon a jury, 77- Sei Forms in Appendix B. WARRENS, rateability of fco sewers rates, 116. WASTES, rateability of to sewers, 115. WATER diversion of, 71. WATERCOURSE, definition of, 58. repair and maintenance of, 58, 72, 70. pollution of, 163. indictment for stopping, 184. diversion of, the subject of compensation, 235. WATERWORKS exempt from jurisdiction of Commissioners o\ Sewers, 70. I\ Indej WEEDS "t il Is, 1 1 . casl "a river bank, <>7 . July to remove, 1. 66. order to remove. Sei Forms in Appendix l>. ancient, (11, 66. erection of is indictable, 185. enlargement of ancienl is indictable, L85. private, <>ii. power tii remove by Land Drainage Ael . (ill. rateability of, to | ■ rate, 135. compensation for alteration of, 235. WIDENING rivers, streams, and Bewers, 58. power to borrow for, 7-- purchase land for, 7. in inquiries under Land Clauses Aet, •!•>'.>. fined for misconduct, 161, 1C3, 22!>. rated persons competent, L97. ewers clerk a competent, L86, 197- defendant in nuisance for enforcing civil rights may be, L87. WOMAN may be a Commissioner of Sewers, .'!!>. WOODS, rateability of to sewers, 111. WOOLRYCH, .Mi:. Serjeant, remarks on qualification by estate, II. on obsolete practice of certiorari, 170. WORK'S wit bin the jurisdiction of ' lommissioners of Sewers. 53, 6 I powers of Commissioners of Sewers previous to the bill of ewers 53 p. o\ ers as to by stal ate, •"•'!. walls, ."i 1, .")."). Indi t. Ixi \\ < IRKS — continued banks, 55. banks (private), 66. tunnels, 55. culverts, 55. Bluices, 55. tumbling bayi , 55. calcies, 55. bridges, 55. sewers 56, 57. gotes, 56. hebbingweares, •"><;. hecks, 5(3. kedels, 5G. Eishgarths, 50. gores, 56. maritime, 56. in navigable or tidal rivers, 56. sewers connecting, 56. coast defences, 57- watercourse, 57. outfall, 58. maintenance of existing, 58. improvement of existing, 58. expenditure exceeding £1,000, 58. new works, 59. originally unauthorised, 59. early controversy as to, 59. authorised by 3 & 4 Will. IV. c. 22, (I, 61 . restrictions, 61. authorised by Land Drainage Act, 61. substitute for old work, 62. purchase of land for, 62. power to combine with adjoining area, 63, 2i».">. removal of obstructions, 64. previous to Land Drainage Act, (\i compensation, &). discretionary, 67. cleansing, deposit on hanks, (17- navigation, 68. foreshore, <>!). exempted works, 70. canals, rivers, and local districts under private Acts, 7" malicious injury to, L88. power to borrow for execution of, 72. purchase land for execution of. 76. view , cognizance, and management of Courl of Sewers of, si . property of Commissioners of Sewers in, 81. compensation for damage caused by, 66, 77. -'■'>'>■ lxii Index, \\ KIT of di dimv ■ potestatem, 3G. See Foh.ms in Appendix B. of sv/persedeas, 41. certiorari, 10G. distringas ad reparandum, L36, L55 Lttachment, 17 : $, L89. error, 93, 01. mandamus, 173. pramunire, 188. ad quod damrmm, 1 16. attendance at sewers, 87. See Poems in Appf.nmx B. for taking declaration of sewer See Fokms in Appendix B. UC SOUTHERN REGIONAL LIBRARY FACILITY mi mum AA 000 761614 7