act with respect to such appeals." (See the 41 Geo. III. c. 23, tit. "Poor," Vol. IV.) Sect. 107. "Provided always, that no rate, nor any proceeding to be had touching the conviction of any offender against this act, or any order made, or any other matter or thing done or transacted in or relative to the execution of this act, shall be vacated or quashed for want of form, or be removed or removable (except as herein mentioned) by certiorari, or any other writ or process whatsoever, into any of his majesty's courts of record at Westminster." Sect. 108. "In any case of appeal, the court of quarter sessions be fore whom the same is heard and determined may, if they think fit, state the facts specially for the determination of his Majesty's Court et King's Bench thereon, in which case it shall be lawful to remove the proceedings, by writ of certiorari or otherwise, into the said Court of King's Bench." 66 As to the notice of, and proceedings upon an appeal and on a special case, &c., see fully, tits. " Appeal," Vol. I., “Sessions," Vol. V. The right of appeal under the above 105th sect. of the 5 & 6 Will. IV. c. 50, is confined to those cases where no other method of relief is provided. No appeal lies to the quarter sessions against the allowance of the surveyor's accounts at petty sessions. (R. v. Justices of West Riding 1 Ad. & E. N. S. 624; 1 Gale & D. 198; ante, 542; and see R. v. J tices of West Riding of Yorkshire, 5 T. R. 629'; and R. v. W. Mitchell, Ib. 701). This right of appeal is not given to all persons, but merely to the party aggrieved, or in other words, to those only who have sustaite some special and peculiar injury, and not to any captious persons what soever. The notice must state, that the appellant is aggrieved, or it must appear therefrom that such is the case. (R. v. Justices of Est, 5 B. & C. 431; 7 D. & R. 658, S. C. And see ante, 560). Every parishioner is aggrieved by the appointment by the justices of a bad surveyor, and may appeal against the appointment; and if inhabitant of a township claims an exemption from the repair of roads not situated within the township, the proper, and it seems the only remedy is, to appeal against the appointment of a surveyor for the whole parish. (R. v. Justices of St. Alban's, 3 B. & C. 698; 5 D.. 538, S. C.) See as to who may be considered a party aggrieved, in the case of turning, diverting, or stopping up a highway, ante, 560. The 88th, 89th, and 90th sections provide as to the remedy by peal against diverting, turning, or stopping up of highways. (Se ante, 559). As regards the time of giving the notice of appeal, where a levy was made under a warrant of distress, it was held that the real injury was the distraining, because it did not necessarily follow that the warrant would be enforced; consequently, that notice given after the actual distress was sufficient. (R. v. Devon Justices, 1 M. & Sel. 411). Under the statute 4 Geo. IV. c. 95, s. 87, a right of appeal is given in certain cases, if the party gives notice within six days after the cause of complaint arises. Two justices having made an order upon the surveyors in a township to perform a certain part of the statute duty (a) on a turnpike road, and to pay a sum of money as a composition for statute duty, it was held, that the order of the magistrates was not complete until the party was in possession of the order, and that the cause of complaint did not arise until a copy of such order in writing had beetl served, and that notice of appeal within six days from that time was valid. (R. v. Lancashire, 8 B. & C. 593 ; 2 M. & R. 519, S. C.) See further as to the time when the notice of appeal ought to be given, ante, 560; and ante, tit. " Appeal.” (a) Statute duty is now abolished, see post, "Highways," "Turnpike.” It has been held, that a party appealing against a conviction by two justices upon complaint of the surveyors, for an offence under the 5 & 6 Will. IV. c. 50, s. 47, must serve notice of appeal, under the above 105th sect. on both the justices. A notice in such a case addressed to both the justices and surveyors, and served on the latter, and on one justice only, is not sufficient. (Reg. v. Bedfordshire (Justices), 11 Ad. & E. 134; 3 Per. & D. 21). As to the statement of the grounds of appeal, see tit. "Appeal," Vol. I. As to the 107th section, in respect of the writ of certiorari, it is observable, that the prosecutor, under this statute, is not debarred from having the writ. (R. v. Burgess, Say. Rep. 128. And see R. v. Clace, (Inhabitants of), 4 Burr. 2456). When the Crown is bound by such an enactment as this, see ante, tit. " Certiorari." As to whether the court can proceed by consent where the certiorari is taken away, see R. v. Micklethwaite, 4 Burr. 2522; see also R. v. West Riding of Yorkshire, Justices, 3′ N. & M. 802; Woolwrych on Highway Act, 136, n. We have seen that the certiorari is saved to the defendant by section 95, (ante, 591), in cases of indictment for non-repair. But the defendant must use his privilege before trial, it will be too late after conviction; and it is not competent for him to move for such a writ in order to take objections to the indictment. (See 1 Salk. 150; R. v. Pennegoes, 2 D. & R. 309; 1 B. & Cres. 142, S. C. ; R. v. St. Alban's, 5 D. & R. 538 ; 3 B. & Cres. 698, S. C.) The statute 13 Geo. III. c. 78, provided that "no proceedings to be had or taken in pursuance of that act should be quashed for want of form or removed by certiorari," it will be observed that the expression in the new act is, in or relative to the execution." (See R. v. Somersetshire, 6 D. & R. 469; 5 B. & C. 816, S. C.; ante, " Certiorari," Vol. I. P. 555, decided upon the repealed act). In R. v. Casson, (3 D. & R. 36; and see R. v. Justices of Cambridgeshire, 4 Ad. & E. 115, per Patteson, J.), a writ of certiorari was quashed on the ground that the order was a proceeding in pursuance of the repealed statute 13 Geo. III. c. 78. (Shelford, 128). As to the writ of certiorari in general, see tit. "Certiorari," Vol. I. As to the 107th clause, with respect to proceedings not being quashed for want of form, see tit. "Conviction," Vol. I. Under the 108th section the justices may state a case for the opinion of the Court of Queen's Bench, informing them how an appeal under section 88, (see ante, 559), was left to the jury, and asking them their opinion whether it was correctly left. (R. v. Shiles, 1 Ad. & E. N. S. 926; 6 Jurist, 256, S. C.; ante, 561). XXV. Actions for Damages, &c. By 5 & 6 Will. IV. c. 50, s. 104, “Where any distress shall be made for any sum of money to be levied by virtue of this act, the distress itself shall not be deemed unlawful, nor the party making the same be deemed a trespasser, on account of any default or want of form in any proceedings relating thereto, nor shall the party distraining be deemed a trespasser ab initio on account of any irregularity which shall be afterwards done in making the distress, but the person aggrieved by ach irregularity may recover full satisfaction for the special damage in action on the case: provided always, that no plaintiff shall recover any action for any irregularity, trespass, or wrongful proceedings, if ender of sufficient amends shall be made by or on behalf of the party ho shall have committed or caused to be committed any such irregurity, trespass, or wrongful proceedings, before such action brought; 25. Actions for damages, &c. Certiorari and want of form in proceedings. Sessions may grant a special tion 108. case under sec Satisfaction recoverable for special tress not to be for want of form in the proceedings. damage; but dis deemed unlawful Plaintiff not to recover for irreguamends made. larity if tender of 25. Actions for damages, &c. 5 & 6 Will. 4, c. 50. Payment into court. Notice of action. tion. Limitation of actions. Venue (b). and in case no such tender shall have been made, it shall and may be lawful for the defendant in any such action, by leave of the court where such action shall depend, at any time before issue joined, to pay in court such sum of money as he shall see fit, whereupon such proceed. or orders and judgment shall be had, made, and given in and by sa court as in other actions where the defendant is allowed to pay money into court." The prior enactments on this subject were the 13 Geo. III. c. ss. 79, 80. As to enactments of this kind, see "Distress for P Vol. II., post, "Justices," See the 3 Geo. IV. c. 126, s. 144, post, ið turnpike roads. The surveyors are only protected when acting bona fide, and the ten of amends paid by them cannot be questioned in an action st 2% (Boyfield v. Porter, 13 East, 200). Sect. 109. "No action or suit shall be commenced against any Tender of satisfac- for any thing done in pursuance of or under the authority of th until twenty-one days' (a) notice has been given thereof in ? the justice, surveyor, or person against whom such action is to be brought, nor after sufficient satisfaction or tender of dar has been made to the party aggrieved, nor after three calendar next after the fact committed for which such action or suit shall brought; and every such action shall be brought, laid, and tried *-** the cause of action shall have arisen, and not in any other cou place; and the defendant in such action or suit may plead the 2, issue, and give this act and every special matter in evidence at any which shall be had thereupon; and if the matter or thing sh pear to have been done under or by virtue of this act, or if it pear that such action or suit was brought before twenty-one notice thereof given as aforesaid, or that sufficient satisfaction was or tendered as aforesaid, or if any action or suit shall not be comme within the time before limited, or shall be laid in any other county t as aforesaid, then the jury shall find a verdict for the defendant th and if a verdict shall be found for such defendant, or if the plai such action or suit shall become nonsuit, or suffer a discontin such action, or if, upon any demurrer in such action, judgments given for the defendant therein, then and in any of the cases such defendant shall have costs as between attorney and d shall have such remedy for recovering the same as any defend have for his or her costs in any other case by law (c).” General issue Costs. (a) But by the 5 & 6 Vict. c. 97, s. 4, from and after the passing of it, "in all cases where notice of action is required, such notice shall be given one calendar month, at the least, before any action shall be commenced; and such notice of action shall be sufficient, any act or acts to the contrary thereof notwithstanding. But, by the 6th section of the act, it is not to extend to any action, bill, plaint, or information, or any legal proceeding of any kind whatsoever, commenced before the passing of the act, but such proceedings may be thereupon had and taken in all respects as if this act had not passed. This section, (the 109th), by requiring only twenty-one days' notice of action to be given, does not repeal the 1st section of 24 Geo. II. c. 44, which entitles a justice of the peace to one calendar month's notice. (Rirs 16. (c) By the 5 & 6 Vict., e it is enacted, "that so much clause, enactment, or provision public act or acts, not load sonal, whereby it is enacted vided, that either double or tre or any other than the usual en tween party and party, shall c recovered, shall be and the hereby repealed: Provided alway instead of such costs, the party ties heretofore entitled unders mentioned acts to such double. or other costs, shall receive and reasonable indemnity as to charges, and expenses incurred 25. Actions As to the construction of enactments of this description, and when a party is entitled to notice of action, see tit. "Justices," Vol. III. "Con- for damages, stable," Vol. I. &c. As to notice of There is a distinction between cases where the action is brought Observations on for penalties for doing what the act prohibits, and where it is brought in this enactment. consequence of any thing done in pursuance of the act. In the former case no notice of action is necessary. (Charlesworth v. Rudgard, 4 Tyr. 831; 1 C. M. & R. 488, S. C. And see Wright v. Horton, Holt's N. P. C. 450, and the cases, post, "Justices," Vol. III.) The omission to do any act is a "thing done" within the meaning of the act. Therefore, where surveyors undermined a wall, which fell eight months afterwards, an action which was brought within three months after the falling was held to be within time. (Roberts v. Read, 16 East, 215. See also Gillon v. Boddington, 1 R. & M. C. N. P. 161, which was a similar case; also Sutton v. Clarke, 6 Taunt. 29, 1 Marsh. 492, S. C.) In Wordsworth v. Harley and Others, (1 B. & Adol. 391, decided under the repealed act 13 Geo. III. c. 78), the plaintiff, a reversioner of land, declared against the defendant (a surveyor of highways) for digging, &c., his close, separating a portion of it from the residue, and keeping it so separated, and adding such portion to the publie road. The separation was by a wall, which was begun more than three calendar months before the action was brought; it was at that time very low, but formed a complete division between the parcels of land. After the commencement of the three months, the wall was raised and finished. It was held, that, as there was a complete separation before that period, the raising of the wall, or its continuance, was not such a new act as would take the case out of the limitation in the above clause; et per Bayley, J.-"The continuation in this case is not a new fact committed within the statute. If it had the operation contended for, you might claim to bring an action at any time within twenty years." Lord Tenterden, C. J.-" None of the acts complained of in the declaration was done within the time limited by the statute. The digging soil, taking away earth, and throwing down fences, and the erecting of a wall, happened before that period; and the separation of the two parts of the close was complete before then. It therefore seems to me, however unfortunate the case may be for the plaintiff, that the action cannot be maintained." In trespass against surveyors of the highways for pulling down a watch-house, it was held, that the 13 Geo. III. c. 78, s. 82, did not enable them, under a plea of not guilty, to justify the removal of it, as being a nuisance on the highway. (Company of Proprietors of Witham Navigation v. Padley, 4 B. & Adol. 69). That act did not give surveyors any power to remove things fixed to the freehold. (Id.) See the 5 & 6 Will. IV. c. 50, s. 69, ante, 569. action. Under the 13 Geo. III. c. 78, s. 81, it was held, that there could be as to costs. no treble costs for the defendant in case of a verdict for him. (Ward v. Bateman, 1 C. & M. 185. But see the present enactment). Nor could the defendant have treble costs where the action was brought for penalties for doing what the act prohibited, in contradistinction to actions for doing something in pursuance of or under the authority of the act. (Charlesworth v. Rudgard, 1 C. M. & R. 488; 4 Tyrw. 831; 3 Dol. P. C. 517, S. C.; ante, 614). Before the 13 Geo. III. c. 78, which gave treble costs to parties sued for any thing done in pursuance of the act on a nonsuit, was about any action, suit, or other legal proceeding, as shall be taxed by the proper officer in that behalf, subject to be reviewed in like manner and by the Fame authority as any other taxation of costs by such officer." See the 6th 27. Surveyor empowered to charge, &c. Amount of fees. Saving as to local acts. Expenses for defending prosecutions agreed upon at a vestry meeting, how to be paid. repealed by the above act 5 & 6 Will. IV. c. 50, a plaintiff who sued parish officers for an act done under the former act, became nonsuit at a trial, but judgment was not signed till after the latter act came into operation; it was held, that the defendants were not entitled to treble costs. (Charrington v. Meatheringham, 2 M. & W. 228). As to the costs the defendant is now entitled to, see ante, 614, n. (c). XXVI. Amount of Fees to be taken. By 5 & 6 Will. IV. c. 50, s. 110, "The several fees hereafter limited and expressed, and no others, shall be taken by the clerk of the peace, clerk to the justices, or others, for their several respective services in the execution of this act; (that is to say); the sum of 6d. for every information; the sum of 1s. for every summons or warrant, and 6d. for the service thereof; the sum of 6d. for every notice, and 6d. for the service thereof; the sum of 1s. for every order, and 6d. for the service thereof; the sum of 2s. for every warrant of distress; the sum of 1ɛ, for every appointment; and the sum of 2s. for every conviction: provided always, that in no place regulated by a local act of Parliament, when the amount of the fees to be taken by the clerk to the justices, or others, in any proceeding for the recovery of any rate, shall be less than the fees hereinbefore mentioned, shall it be lawful for such clerk to the justices or others to demand or take a greater fee for any similar proceeding tr der this act than the fee which may be mentioned or directed to be taken by such local act." XXVII. Surveyor empowered to Charge in Account Expenses of Legal Proceedings. By 5 & 6 Will. IV. c. 50, s. 111, "If the inhabitants of any parish shall agree at a vestry to defend any indictment found against any such parish, or to appeal against any order made by or proceeding of any justice of the peace in the execution of any powers given by this act, or to defend any appeal, it shall and may be lawful for the surveyor of such parish to charge in his account the reasonable expenses incurred in fending such prosecution, or prosecuting or defending such appeal, the same shall have been agreed to by such inhabitants at a vestry oral lic meeting as aforesaid, and allowed by two justices of the peace withi the division where such highway shall be; which expenses, when 80 agreed to or allowed, shall be paid by such parish out of the fines, for feitures, payments, and rates, authorized to be collected and raised by virtue of this act : provided nevertheless, that if the money so collected and raised is not sufficient to defray the expenses of repairing the highways in the said parish, as well as of defending such prosecution, of prosecuting or defending such appeal as aforesaid, the said surveyor is hereby authorized to make, collect, and levy an additional rate in the same manner as the rate by this act is authorized to be made for the repair of the highway." The former enactment on this subject was the 13 Geo. III. c. 78, s. 65, but the above is somewhat different. In R. v. Fowler, (1 Ad. & Ell. 836; 3 N. & M. 826, S. C.), it was held, under the former act, that law expenses incurred in resisting a rule for a certiorari were expenses which might be inserted in the waywarden's account, and so allowable or not, at the discretion of the justices. The court came to this conclusion, upon a full understanding that the occasion in question was not one of those particularly specified in the 65th section. And they further said, that all bona fide expenses incurred by the waywarden in pursuance of his duties might be so inserted for allowance. As to the surveyor's accounts, see ante, 539. |