township, or hamlet, in any matter relating to such rates or cesses, or to the boundary between such district, parish, township, or hamlet, and any adjoining district, parish, township, or hamlet; or to any order of removal to or from such district, parish, township, or hamlet; or the settlement of any pauper in such district, parish, township, or hamlet; or touching any bastards chargeable or likely to become chargeable to such district, parish, township, or hamlet; or the recovery of any sum or sums for the charges or maintenance of such bastards; or the election or appointment of any officer or officers, or the allowance of the accounts of any officer or officers of any such district, parish, township, or hamlet, any law, usage, statute, or custom to the contrary in anywise notwithstanding." (See Heudebourck v. Langston, M. & M. 402, n.) A rated inhabitant of a district or parish for which a highway rate is made, is, under this section, a competent witness to support it. (Morrell v. Martin, 8 Scott, 688). It has been held that this enactment renders inhabitants competent witnesses in an action by the surveyor of highways against his predecessor for penalties. (Heudebourck v. Langston, M. & M. 402, n.) And since this case, in R. v. Hayman, (M. & Malk, 401). Tindal, C. J., admitted rated inhabitants of a parish to give evidence in support of an indictment against parties charged ratione tenure, for not repairing a bridge and highway situate in the parish. In R. v. The Inhabitants of Wandsworth, (1 B. & Ald. 66), decided after the passing of this act, but before the passing of the 5 & 6 Will. IV. c. 50, and the 3 & 4 Vict. c. 26, infra, Lord Ellenborough stated that the testimony of the parishioners of a parish indicted for the nonrepair of a highway, would not be legal evidence upon the trial of such indictment, upon the ground of interest. On an issue to try a customary right to take shingle for the repair of highways in a parish, persons, contributing to the highway rate within such parish, were held, under this enactment, incompetent to support the right and the court seems to have inclined to the opinion, that the above enactment was limited in its scope to cases concerning the poor's rates. (Orenden v. Palmer, 2 B. & Àd. 236; R. v. Bishop Auckland, 1 Ad. & E. 744). In trespass for entering the plaintiff's closes, the defendant pleaded a public right of way for carriages, which was denied by the replication. The closes were in the lordship of T., which was part of the parish of L. The roads of the lordship had been, from time immemorial, repaired by the occupiers of the lands in it by agreement; but they had, of late years, contributed to the highway rate for the repairs of the roads in the parish of L. To disprove the public right of way claimed, it was proposed to call occupiers of lands in T., who, in respect of their lands, contributed to the highway rate of T.:-Held, that they were not competent witnesses, as a verdict for the defendant in this case would be evidence on the ground of reputation to charge the parish on an indictment for non-repair of this road; and that the witnesses were not rendered competent, either under the stat. 3 & 4 Will. IV. c. 42, s. 27, (post, tit. "Ecidence"), or the stat. 54 Geo. III. c. 170, s. 9. (Fowler v. Port, 7 Car. & P. 792). But, in Doe d. Boultbee v. Adderley, (8 Ad. & E. 508), Lord Denman, in delivering the judgment of the court, said," On consideration, we cannot agree with Oxenden v. Palmer, and the decisions to which it has given birth. (See post, tit. "Evidence.") See further, as to the construction of this enactment, Roscoe on Evidence, 116; Talf. Dick. Sess. 408; and post, tit. "Evidence." By the 3 & 4 Vict. c. 26, s. 1, after reciting that "it is expedient to remove all doubt whether persons are by law competent to give evidence in cases where they have been formerly held to be disqualified by the liability to pay parochial rates:" it is enacted, "That from and after the passing of this act no person called as a witness on any trial in any 21. Inhabitants, &c.,made competent witnesses, &c. 54 Geo. 3, c. 170. Persons not disqualified from account of being assessed to paro giving evidence on chial rates. 21. Inhabitants, &c., made competent witnesses, &c. 3 & 4 Vict. c. 26. Nominal parties on any trial not disabled from giving evidence. Witnesses not to be excluded from giving evidence by reason of crime, or interest, except in certain cases. Compelling witnesses to attend and give evidence. Penalty for nonattendance. court whatever may and shall be disabled or prevented from giving evidence by reason only of such person being, as the inhabitant of any parish or township, rated or assessed or liable to be rated or assessed to the relief of the poor, or for and towards the maintenance of church, chapel, or highways, or for any other purpose whatever." Sect. 2. "No churchwarden, overseer, or other officer in and for any parish, township, or union, or any person rated or assessed, or liable to be rated or assessed as aforesaid, shall be disabled or prevented from giving evidence on any trial, appeal, or other proceeding by reason only of his being a party to such trial, appeal, or other proceeding, or of his being liable to costs in respect thereof, when he shall be only a nominal party to such trial, appeal, or other proceeding, and shall be only liate to contribute to such costs in common with other the rate-payers such parish, township, or union." (See this statute noticed ante, t "Evidence"). Under this statute an owner of lands within a parish is competent to give evidence on a prosecution against the parish for non-repair of s highway, though he be not a rated inhabitant, the land being occupied by tenants, who are rated for them. (R. v. Doddington, Inhabitants of, 1 Ad. & E., N. S., 411). Before the passing of this statute an inhabitant of the parish, eve the prosecutor himself, though rated, was held to be a competent wit ness for the prosecution. (See R. v. Hammersmith, 1 Stark. 357; R. v. Hayman, M. & M. 401). Since this act it has been held, that, upon an indictment against the inhabitants of a township, charging them with the repair of a bridze, by a prescriptive liability, the declaration of an inhabitant of the township is admissible in evidence against the township, on the ground tast he is a party to the record, although he be not a rated inhabitant. (R.v. Adderbury, East, (Inhabitants of), 13 Law J., M. C., 9). And per Co ridge, J., "Neither section of the act provides that persons who parties to the record shall be compelled to give evidence against thenselves." By the 6 & 7 Vict. c. 85, witnesses are not to be excluded from giting evidence by reason of incapacity, from crime or interest (a). B this act does not render competent any party to any suit, action, or re ceeding, individually named in the record, or any lessor of the past. or tenant of premises sought to be recovered in ejectment, or the lord or other person in whose right any defendant in replevin may cognizance, or any person in whose immediate and individual behali y action may be brought or defended, either wholly or in part, or th husband or wife of such person respectively. This act does not apply to or affect any suit, action, or proceeding brought or commenced befor the passing of the act, (22d August, 1843). See this act, tit. "Evidence,” Vol. II. Sect. 102 (b). "If any person, after having been paid or tenderela reasonable sum of money for his costs, charges, and expenses, shall be summoned as a witness to give evidence before any justices of the peace touching any matter or fact contained in any information or complaist for any offence against this act, either on the part of the prosecutor er the person accused, and shall refuse or neglect to appear at the time and place for that purpose appointed, without a reasonable excuse for lis refusal or neglect, or appearing shall (after having been paid or tendered (a) Before this act a witness was competent to prove a road to be a highway, though he had agreed to grant, at an annual rent, a way across his own land, which could not be used unless the disputed road was established. (Peake's Ca. 18). And upon an indictment against a township, charging the inhabitants with the liability to repair all roads within the township, an inhabitant of the adjo ing township of N. was competent : prove that the road which extended through N was a public highway. R v. Pilling, Stark on Erid. Appendis to p. 673). (b) Of 5 & 6 Wm. IV. c. 50. a reasonable sum for his costs, charges, and expenses) refuse to be examined upon oath and give evidence before such justice of the peace, then and in either of such cases such person shall forfeit for every such offence any sum not exceeding 5l." See a corresponding section in the turnpike act, 3 Geo. IV. c. 126, s. 138, post. As to evidence and witnesses in general, see ante, title, “Evidence.” 22. Mode of recovering, and application of penalties. Evidence in general. 5 & 6 Will. 4, c.50. Justices may proceed by summons penalties. in the recovery of XXII. Mode of Recovering, and Application of Penalties. By 5 & 6 Will. IV. c. 50, s. 101, "In all cases in which any penalty or forfeiture is recoverable before justices of the peace under this act, it shall and may be lawful for any justice to whom complaint shall be made of any such offence to summon (a) the party complained against before any two justices, and on such summons the said two justices may hear and determine the matter of such complaint, and on proof of the offence convict the offender, and adjudge him to pay the penalty or forfeiture incurred, and proceed to recover the same, although no information in writing shall have been exhibited or taken by or before No information such justice; and all such proceedings by summons without informa- in writing retion shall be as good, valid, and effectual, to all intents and purposes, as if an information in writing was exhibited." As to the summoning of offenders in general, see "Conviction," Vol. I. As to seizing and obtaining unknown offenders, see the 79th section, ante, 583. quisite. Forfeitures, costs, and charges, may tress and sale (b). be levied by dis Sect. 103. "All penalties and forfeitures by this act inflicted or authorized to be imposed for any offence against the same, and all balances due from a surveyor, and all costs and charges to be allowed and ordered by the authority of this act, (the manner of levying, recovering, and applying of which is not hereby otherwise particularly directed), shall, upon proof and conviction of the offences respectively before any two or more justices, either by the confession of the party offending, or by the path of any credible witness or witnesses, (which oath such justices are in every case hereby fully authorized to administer), or upon order made as aforesaid, be levied, together with the costs attending the information, summons, and conviction, by distress and sale of the goods and chattels of the offender or person liable or ordered to pay the same respectively, by warrant (c) under the hands of two or more justices before whom the party may have been convicted; (which warrant such justices are hereby empowered and required to grant); and the overplus, (if any), after such penalties, forfeitures, and fines, and the charges of such distress deducted, shall be returned, upon demand, unto the owner or owners of such goods and chattels; and in case such fines, penalties, and Security for forfeitures shall not be forthwith paid upon conviction, then it shall be appearance at lawful for such justices as aforesaid to order the offender or offenders so convicted to be detained and kept in safe custody (d) until return can be conveniently made to such warrant of distress, unless the offender or offenders shall give sufficient security, to the satisfaction of such justices as aforesaid, for his or their appearance before such justices on such day or days as shall be appointed for the return of such warrant of distress, ach day not being later than seven days from the time of taking any such security, and which security the said justices as aforesaid are hereby and sale are (a) See form of the summons, post, No. 28. (b) As to the mode of proceeding by distress under a magistrate's warrant, tc., and the mode of enforcing penaltes in general, see ante, "Distress by VOL. III. Warrant, Vol. II. (c) See form, post, No. 36. (d) As to this being in writing under the hand of the justices, see Still v. Walls, 7 East, 533, and tit. "Commitment in Execution," Vol. II. RR return of distress. 22. Mode of recovering, and applica tion of penalties. 5 & 6 Will. 4, c. 50. Commitment for non-payment (a). Application of penalties. Action for penalties. empowered to take by way of recognizance or otherwise; or in case it shall appear to the satisfaction of such justices, either by the confession of the offender or otherwise, that he hath not goods or chattels withia the jurisdiction of such justices sufficient whereon to levy all such penalties and forfeitures, costs and charges, such justices may, at their discretion, without issuing any warrant of distress, commit (b) the offender for such period of time, and in such and like manner, as if a warrant of distress had been issued, and nulla bona returned thereon; but if a warrant of distress shall be issued, and upon the return thereof (c) it shal appear that no sufficient distress can be had whereupon to levy the sail penalty, forfeiture, or fine, and costs and expenses aforesaid, and the same shall not be forthwith paid, or in case it shall appear to the satisfaction of such justices, upon the confession of the offender or other wise, that he hath not sufficient goods and chattels whereupon such penalty, forfeiture, or fine, costs and expenses, could be levied if a wa rant of distress were issued, such justices shall not be required to isso such warrant, but in such case such justices are hereby required by warrant under their hands, to cause such offender or offenders to be committed to the common gaol or house of correction of the exly, riding, or place where the offender shall be or reside, there to be kept ta hard labour for any term not exceeding three calendar months, unles such penalties, forfeitures, and fines, and all reasonable charges attending the same, shall be sooner paid and satisfied; and the penalties and torfeit ures, when so levied, shall be paid, the one half to the informer, the other half to the surveyor of the parish where such offence, negle. or default shall happen, to be applied towards the repair of the highways thereof, unless otherwise directed by this act; but in case the sur veyor shall be the informer, then the whole shall be applied towards the repair of such highway." The nonpayment of costs awarded by an order of quarter sessions, the trial of an appeal against the stoppage of a highway, under the section of the above act, is not an offence forming a subject for conv tion under the above 101st and 103d sections; but the nonpayment them may be enforced by distress warrant, issued by two justices, the 103rd section, grounded directly upon the order of sessions. (M wood v. Mount, 1 Ad. & El. N. S. 727 ; 1 Gale. & D. 358, §. C. 37, 561). Et per Lord Denman, in delivering the judgment of the co this case, The 103rd section must be read reddendo singula sing and the true construction of it is, that the justices shall issue their rant upon a conviction, where there has been an offence for which a penalty or forfeiture is inflicted or authorized to be imposed; "upon order made as aforesaid," when costs have been awarded not paid; notwithstanding the words 'under the hands of two or m justices before whom the party may have been convicted."" 1 Ad. & El. N. S. 734). ar! See ante, 561, where a warrant purporting to have issued under this section was held to be illegal, and that no property passed to the venee of goods seized and sold under such warrant. As to enforcing obedience to a rule of court, notwithstanding this section, see R. v. Pembridge (Inhabs. of), 7 Jurist, 553, ante, 601. By the 13 Geo. III. c. 78, s. 74, penalties above 40s. might be re covered by action of debt; but that proceeding is now abolished. see (a) See the form, No. 38, post. Vol. I. (c) See form, No. 37, post. XXIII. Forms of Proceedings. 24. Appeal against rates, &c. 5 & 6 Will. 4, c. 50. Forms of pro By 5 & 6 Will. IV. c. 50, s. 118, "The forms of proceedings relative to the several matters contained in this act, which are set forth and expressed in the schedule hereto annexed, shall be used upon all occasions, with such additions or variations only as may be necessary to adapt them ceedings. to the particular exigencies of the case; and that no objection shall be made or advantage taken for want of form in any such proceedings by any person whomsoever." As to enactments of this description, see "Conviction," Vol. I. It was considered, in one case, that the enactment of the 13 Geo. III. c. 78, s. 69, which was similar to the above, was imperative; (Davison v. Gill, 1 East, 64); but, according to R. v. Casson, (3 D. & R. 40), such an enactment is only directory. A material variation, however, from the form prescribed, is fatal; and may be taken advantage of in a collateral proceeding. (Davison v. Gill, 1 East, 64. See further tit. "Conviction," Vol. I.) Appeal may be sessions against rate, &c. made to quarter XXIV. Appeal against Rates, and Proceedings, &c.— Want of Form, &c.—Certiorari, &c.—Special Case. By 5 & 6 Will. IV. c. 50, s. 105, "If any person shall think himself aggrieved by any rate made under or in pursuance of this act, or by any order, conviction, judgment, or determination made, or by any matter or thing done, by any justice or other person in pursuance of this act, and for which no particular method of relief hath been already appointed, such person may appeal to the justices at the next general or quarter sessions of the peace to be held for the county, division, riding, or place wherein the cause of such complaint shall arise, such appellant first giving or causing to be given to the surveyor or surveyors, or to such justice or other person by whose act such person shall think himself aggrieved, notice in writing of his intention to bring such appeal, Notice of. together with a statement in writing of the grounds of such appeal, within fourteen days after such rate shall have been made, or cause of complaint shall have arisen, and within four days after such notice entering into a recognizance before some justice, with two sufficient sure- Recognizance. ties, conditioned to try such appeal at, and abide the order of, and pay such costs as shall be awarded by the justices at such general or quarter sessions; and such justices, upon hearing and finally determining the matter of such appeal, shall and may, according to their discretion, award such costs to the party appealing or appealed against as they shall costs. think proper; and their determination in or concerning the premises shall be conclusive and binding on all parties to all intents and purposes whatsoever provided nevertheless, that in case there shall not be time to give such notice and enter into such recognizance as aforesaid before the next sessions to be holden after the making of any rate, or the cause of complaint shall have arisen, then, and in every such case, such apal may be made to the next following sessions, and shall be then heard and determined: provided also, that it shall not be lawful for the appellant to be heard in support of such appeal, unless such notice and statement shall have been so given as aforesaid, nor on the hearing of such appeal to go into evidence of any other grounds of appeal than those set forth in such statement as aforesaid." in Sect. 106. "In all cases of appeal against the rate or assessment made pursuance of this act, the several provisions and enactments conned in a certain act made and passed in the forty-first year of the n of his late Majesty King George the Third, intituled An Act for the better collection of the rates made for the relief of the poor, shall be apcable thereto, as if the same had been repeated and re-enacted in this Provisions of 41 Geo. 3, c. 23, applicable to this act. |