11. Highway rates. Certain persons not liable to payment of highway rate. Rates how to be recovered. 7. PERSONS EXEMPT FROM FORMER STATUTE DUTY, NOT LIABLE TO RATE By 5 & 6 Will. IV. c. 50, s. 33, "When property, or the owner or occupier in respect thereof, has, previous to the passing of this act, been legally exempt from the performance of statute duty, or from the payment of any composition in lieu thereof, or of highway rate, the said property and the owners and occupiers thereof shall be exempt from the payment of the rate hereby imposed." There does not appear to be any express exemption in the acts by which the statute duty, composition, and highway rate have hithert been regulated, viz. 13 Geo. III. c. 87; 34 Geo. III. c. 74; 44 Geo, III c. 52; 54 Geo. III. c. 109; and the exemption in favour of militia me (42 Geo. III. c. 90, s. 174) is now repealed. (See sect. 1, ante, 512) À particular township, however, or particular persons, might be e empted by act of Parliament, (R. v. Lacey, 5 B. & C. 702; 8 Dsh 457; R. v. Dayrell, 1 B & C. 685), or perhaps by prescription; (Fr v. Foulis, 7 B. & C. 394; 1 M. & R. 102; and see Chatfield v., 5 D. & R. 675; 3 B. & C. 863; Mitchell v. Fordham, 9 D. & R.**; 6 B. & C. 274; R. v. Toms, Dougl. 401); and many exemptions a be found in local acts in favour of particular kinds of property. Holford v. Copeland, 3 B. & P. 129; R. v. Manchester Waterla Company, 3 D. & R. 20; 1 B. & C. 630; R. v. Mosley, 3 D. & R. 2 B. & C. 226, &c.; Bateman on the Highway Act, p. 25). Persons in holy orders were liable to statute duty. (3 Keb. 255, Webb v. Bachelour, 1 Ventr. 273; and see R. v. Lacey, 5 B. & Cres. 8 D. & R. 457, S. C.) A charter granted by the Crown, exempting the tenants of the mesne lands in a manor from the payment of chimagium, or money, was no excuse for the non-performance of statute duty highways. (Rex v. Siviter, 5 Nev. & M. 125; 1 Har. & Woll. 376.& 8. MODE OF PROCEEDING FOR THE RECOVERY OF RATES. By 5 & 6 Will. IV. c. 50, s. 34, "For levying and recover said rate by this act authorized to be made, the surveyor shall re same powers, remedies, and privileges as the overseers of the por parish have by law for the recovery of any rate made for the the poor" (a). As to the mode of proceeding for the recovery of a rate made relief of the poor, see fully, tit. "Poor," Vol. IV. See also the of proceedings under that title. The rate may be demanded by one of two surveyors acting un 5 & 6 Will. IV. c. 50. (Morrell v. Martin, 8 Scott, 688, ante, 544), be paid to one of such surveyors. (Ib.) It was held that no action could be maintained by the survey it may (a) In replevin for seizing the plaintiff's goods, the defendant pleaded in justification, that, after the passing of the 5 & 6 Will. IV. c. 50, two justices made their warrant (setting it out) addressed to the surveyors of the highways of H., and to the constable of H., reciting that M., an occupier of lands in H., was duly rated to the repair of the highways of the parish in a certain sum therein mentioned, which had been demanded and refused, and that he had been summoned and had not appeared, and therefore the warrant commanded them to levy the amount by distress and sale. The plea then averred that the defend constable of H., that certain mentioned in the warrant wer veyors of the highways, and t in the warrant named, was the :and so justified under the war acting in aid and assistance of t veyors :-Held, on general de that the plea was neither in fr. in substance a plea under the s nor was it a good plea at comm inasmuch as it did not shew t justices had jurisdiction over the ject-matter upon which the " was granted. (Morrell v. N Scott's N. R. 300). rates. highways against the parties rated for non-payment of the sums assessed, 11. Highway in lieu of statute duty; a specific remedy, by distress, having been given by stat. 13 Geo. III. c. 78, s. 34. (Underhill v. Ellicombe, M'Cl. & Y. 450). See forms of summons for non-payment of assessment, No. 19, and warrant of distress for non-payment of, No. 20 (a). By the 6 & 7 Will. IV. c. 63, a power was given to surveyors appointed under the statute 5 & 6 Will. IV. c. 50, for the recovery of any rate or composition in lieu of statute duty, which was duly made under any of the acts repealed by the latter act, and which remained unpaid at the time of the passing of the former. The 6 & 7 Will. IV. also pointed out how any money recovered under it was to be applied. This act expired on the 19th day of March, 1837 therefore, it is thought unnecessary further to notice it. As to the recovery of rates made under repealed acts. Rate payers may divide among themselves the conveyance of stone, &c. for re pair of highways, 9. RATE PAYERS ENABLED TO DIVIDE CARRIAGE of Materials. By 5 & 6 Will. IV. c. 50, s. 35, "It shall be lawful for two rate payers of any parish, within six days next after the annual appointment of the surveyor, by a notice in writing, to require the said surveyor to call a meeting of the rate payers of the said parish for the purpose hereafter mentioned, and the said surveyor shall call such meeting within eight days after the receipt of such notice, and shall give six days' previous intimation of such meeting; and if at such meeting a majority of the rate payers then and there assembled shall signify their consent thereto, it shall and may be lawful for the rate payers keeping a team or teams of two or more horses or beasts of draught to divide among themselves, in proportion to the amount of rate to which they may respectively be assessed, the carrying of the material which may be required by the said surveyor for the repairs of the highways within such parish, and that they shall be paid by the said surveyor for such car- which shall be rying or task-work, within one calendar month after having performed paid for by sursuch service, after such rate per cubic yard of material per mile, and so in proportion for any less distance than a mile, as shall be fixed by the justices, at their first meeting in special sessions for the highways after the 25th day of March in every year, which rate the said justices are hereby required to fix at such special sessions: [as to such sessions, see said veyor. performed. sect. 5, post, 564]: Provided always, that such carrying or task-work At what time shall be performed at such times and places and in such manner as the carrying to be surveyor may direct; (the periods of spring, seed-time, and harvest always excepted); and that in case the said surveyor shall not approve Mode of proof the manner in which such carrying or task-work shall be performed, ceeding where it shall be lawful for the justices at a special sessions for the highways to hear the complaint of such surveyor in that respect, and to award such pecuniary redress or forfeiture against the party offending as to them shall appear reasonable." improperly done. The object of this section is to secure to the farmers the team-work Object of enact (a) See R. v. Græme, 2 Ad. & Ell. 615; R. v. Mirehouse, 2 Ad. & Ell. way rate assessed, under the above 632-in which cases the court refused to statute, upon land which had never been rated before, and the liability of compel magistrates by writ of manda- which to be rated was denied; and, the ms to issue warrants for parish high- prosecutor having, previously to the ay rates made under 13 Geo. III. motion for the rule for the mandamus, -78, it being doubtful whether they merely purposed to call a meeting for dad so: and see R. v. Somersetshire for the magistrates, without offering a ght not be liable to actions if they the purpose of obtaining an indemnity the court refused to award a manda- rule, with costs. See post, tit. "JusJustices), (4 Nev. & M. 394), where sufficient indemnity, discharged the by i commanding justices to enforce, suing a warrant of distress, a high tices," and tit. "Mandamus," Vol. V. ment. 12. Collector which may be necessary for the repair of the roads within their respective parishes. (Shelford Highway Act, Report on County Rates, ordered by the House of Commons to be printed, 31st July, 1834, p. 5). of highway rates, &c. Surveyor, with consent of vestry, may appoint collector of rates. Security to be taken from colector. Collector to make monies received. Of list of defaulters. To pay over monies received. Proceedings in default, &c. XII. Of the Collector of Highway Rates, and his Accounts. By the 5 & 6 Will. IV. c. 50, s. 36, "The surveyor of any parish, the consent of the majority of the inhabitants in vestry assembled, being first had and obtained, may from time to time appoint any number of col lectors of the said rates, and may remove any such collector and appoint another in his stead, and make such allowance to such collector, out of the monies to be received under this act, as the said inhabitants in ve try assembled shall think reasonable, (see sect. 18, ante, 526), and the said collector is hereby declared to have all the same powers, remedies, and privileges for the levying and enforcing the payment of such rates as the surveyor nominated or appointed under the authority of this act (See ante, s. 34, and ante, 546). Formerly the surveyor was the sole collector of highway rates, but now he is empowered, with the consent of the inhabitants in vestry, to appoint a collector, to remove him, and to pay him; and the collector is invested with the same powers for levying the rate as the surveyor. (See Bateman, 45). By s. 37, "It shall be lawful for the said surveyor and he is hereby required to take security from every collector appointed by virtue of this act, for the due execution of his office of collector, which security sha be to the full amount of the sum likely to be in the hands of the said collector at any one time, and shall be by bond without stamp." (See Form, post, No. 21). Perhaps this clause may be deemed to be directory only, so that the appointment of a collector may be complete, although the security re quired has not been given. (R. v. Patteson, 4 B. & Adol. 9. See ante, 537). By sect. 38, "Every collector appointed by virtue of this act shal out accounts of all under his hand, and at such time and in such manner as the surveyor may direct, deliver to the said surveyor as aforesaid true and perfect c counts in writing of all monies which shall have been by such collec received by virtue of this act, and also a list of the names of all such persons as shall have neglected or refused to pay their respective rates, and of the monies due from them respectively; and that every such collector shall pay all such monies as shall remain due from him to the said surveyor as aforesaid; and if any such collector shall refuse or ne glect to make and render such account, or to produce and deliver up the list of persons neglecting and refusing to pay their rates as aforesaid, or to make payments as aforesaid, or shall refuse or wilfully neglect to deliver to the said surveyor as aforesaid, or to such person as he shall ap point to receive the same, within three days after being thereunto required by the said surveyor as aforesaid by notice in writing under his hand given to or left at the usual place of abode of such collector, all books, papers, and writings in his custody or power relating to the execution of this act, or to give satisfaction to the said surveyor as aforesaid respecting the same, then and in every such case, upon complaint made by the said surveyor as aforesaid of any such refusal or wilful neglect as aforesaid to any justice of the peace, such justice may and he is hereby authorized and required to issue a summons under his hand for the collector so refusing or neglecting to appear before any two justices of the peace; and upon the said collector appearing, or having been so sum moned and not appearing without some sufficient or reasonable excuse, or not being found, it shall be lawful for the said two justices to hear and determine the matter; and if, upon confession of the party, or by the 13. Widening, &c., of. 5 & 6 Will. 4, c. 50. testimony of any credible witness on oath, it shall appear to such justices that any monies remain due from such collector, such justices may and they are hereby authorized and required, upon nonpayment thereof, by warrant under their hands, to cause such money to be levied by distress and sale of the goods and chattels of such collector; and if no goods and chattels of such collector shall be found snfficient to answer and satisfy the said money, and the charges of distraining and selling the said goods and chattels, then and in every such case such justices shall and they are hereby required to commit such offender to the common gaol or house of correction for the county, city, or place where such offender shall be or reside, there to be kept to hard labour for a period not exceeding six calendar months, or until he shall have paid such monies as aforesaid, or compounded with the surveyor as aforesaid for such money, (which composition the said surveyor, with the consent of the inhabitants in vestry, or, in any parish where they do not meet in vestry, with the consent of the inhabitants contributing to the highway rate at a public meeting assembled, is hereby empowered to make and receive), or if it shall appear to such justices that such collector had refused or wilfully neglected to render and give such accounts, or to produce and deliver the list of persons neglecting and refusing to pay their rates as aforesaid, or that any books, papers, or writings relating to the execution of this act remained in the hands or in the custody or power of such collector, and he refused or wilfully neglected to deliver or give satisfaction respecting the same as aforesaid, then and in every such case such collector shall, on conviction thereof, forfeit for such offence any sum not exceeding 207., and in default of payment thereof shall be committed to the common gaol or house of correction for the county, city, or place where such offender shall be or reside, there to be kept to hard labour for a period not exceeding four calendar months, or until he shall have given a true and perfect account as aforesaid, and delivered such list as aforesaid, and delivered up such books, papers, and writings, or give satisfaction in respect thereof to the said surveyor: Provided always, that no conviction or imprison- Conviction of colment of such collector as aforesaid shall exonerate or discharge any security taken from him on his appointment as aforesaid." XIII. Of the Widening, Changing, and Stopping up We shall proceed first to take a preliminary view of the common law on this subject, and then point out the alteration and improvement it has undergone by statutory enactments. lector not to discharge security. By the Common Law.]-By the common law an ancient highway cannot By common law. be changed, without the king's license first obtained upon a writ of ad By a writ of ad quod damnum (a), and an inquisition thereon found, that such a change quod damnum. will not be prejudicial to the public: and it is said, that if one change a highway without such authority, he may stop the new way whenever (a) The writ of ad quod damnum is an original writ, issuing out of and returnable into Chancery, directed to the sheriff, to inquire by a jury whether such change will be detrimental to the public; which inquisition, being a proceeding only ex parte, is in its own nature traversable, and the party grieved may be heard against it before the Chancellor. By stat. 55 Geo. III. c. 68, 3, (now repealed), jurisdiction was given to the justices in sessions to hear & Ald. 373), it was decided, that, upon 13. Widening, &c., of. At common law. Repair of a road after. Highways may be changed by act of God. Existence of right of way over road where one end stopped up. he pleases; and it seemeth that the king's subjects have not such an interest in such new way, as will make good a general justification of their going in it as a common highway, but that, in an action of trespass brought by the owner of the land against those who shall go over it, they ought to shew specially, by way of excuse, how the old way was obstructed, and the new one set out; also it is said, that the inhabitants are not bound to keep watch in such a new way, or to make amends for a robbery therein committed, or to repair it." (1 Haw. c. 76, s. 34; Shelford, 104). So, a public right of navigation in a river or creek cannot be extinguished except by an act of Parliament, or writ of ad quod damnum, and inquisition thereon, or, under certain circumstances, by commissioners of sewers, or by natural causes, such as the recess of the sea or an accamulation of mud, &c., and where a public road obstructing a chand (once navigable) has existed for so long a time that the state of the channel, at the time when the road was made, cannot be proved; in fsvour of the existing state of things, it must be presumed, that the right of navigation was extinguished in one of the modes before menti and the road cannot be moved as a nuisance to that navigation. (R. Montague, 4 B. & C. 598; 6 D. & R. 616, S. C.; Vooght v. Wick, B. & Ald. 662). It seems that the finding of a jury, under a writ of ad quod damas, in favour of the party at whose instance it is issued, is not a bar to an indictment for a nuisance, but that the jury by whom such an indictment is to be tried have a right to exercise their own judgment up a the matter, and may find that to be a public nuisance which another jury, under that writ, may have found not to be to the prejudice of his Majesty's subjects. (R. v. Russell, 9 D. & R. 566; 6 B. § Č. 600; Sford, 105). On account of the expense and difficulty attending a writ of ad quod damnum, and the more compendious and easy method of diverting highways provided by the now repealed statutes 13 Geo. III. c. 78, s. 19, and the 55 Geo. III. c. 68, that writ has been seldom issued in modern times, (Shelford, 105), and it may be questionable whether it is not virtually abolished by the 5 & 6 Will. IV. c. 50, s. 85, (post, 554). A highway cannot be narrowed by the common law. (Fowler v. San den, Cro. Jac. 446; and see R. v. Lord Grosvenor, 2 Stark. 511). Where a new road is made in pursuance of such a writ, and inquis tion thereupon found, after the person who sued out the writ hath re made the said road, the parishioners ought to keep it in repair for the future; because, being discharged from the repairing of the old road. no new burden is laid upon them, but their labour is only transferred from one place to another. (Ex parte Vennor, 3 Atk. 771. See R. V. Flecknow, 1 Burr. 465, 523). But if the new road lie in another parish, then the person who sued out the writ, and his heirs, ought not only to make it, but to keep it in repair; otherwise the parishioners of such other parish would have a new charge upon them, and no recompense, by the former road being taken away. (Ex parte Vennor, 3 Atk. 772, ante, 523). It is certain that a highway may be changed by the act of God; and therefore it hath been holden, that if a water, which has been an acient highway, by degrees changes its course and goes over different ground from that whereon it used to run, yet the highway continues in the new channel, in the same manner as in the old. (1 Haw. c. 76, s. 4. And see Welb.375). It seems that a right of way over a road still exists, though one end of it be lawfully stopped up. (R. v. Justices of Downshire, 4 Ad.& E.713, per Patteson, J.; see ante, 503). |