16. Actions, &c. and costs, 3 Geo. 4, c. 126. Irregularity in distresss, &c. Conviction to be then it shall and may be lawful for any justice of the peace before whom Sect. 137. "No conviction shall be had or made by virtue of this act on view of justice, unless upon the view of a justice convicting, or on confession of the party accused, or upon the oath of one or more credible witness or witnesses." (See the remainder of this section, post, 763). or on oath or confession. And within six months from time of offence. By and against trustees, Officers. Mortgagees. Extortion. Special injuries. Evidence and wit nesses. Distress not unlawful ab initio. See further, as to witnesses and evidence, post, 763. By 9 Geo. IV. c. 77, s. 18, "No person or persons shall or may be convicted of any offence or offences contrary to the provisions of this act, or of the said recited acts, [3 Geo. IV. c. 126, 4 Geo. IV. c. 95, and 7 & 8 Geo. IV. c. 24], or of any local turnpike act, in a summary way, before any justice or justices of the peace, after the expiration of six months from the time when any such offence or offences shall or may have been committed." XVI. Actions, Limitation of; Tender of Amends; and Costs. As to when trustees are personally liable, and may be sued, see any, 665, 668. As to when they may sue, and how, see ante, 668. As to actions by trustees for subscriptions, see ante, 695. As to when surveyors and other officers may be sued, see ante, 673. As to actions against mortgagees for continuing in possession after debt satisfied, see ante, 741. As to actions for extortion, see ante, 678. As to actions for a special injury by obstruction, see ante, As to actions for penalties, and the notice and limitation there, ante, 759. As to evidence and witnesses, see post, 762. By 3 Geo. IV. c. 126, s. 144," Where any distress shall be made for any sum or sums of money to be levied by virtue of this act, or say other act for repairing, amending, or maintaining any turnpike the distress itself shall not be deemed unlawful, nor the party or part making the same be deemed a trespasser or trespassers on account any default or want of form in any proceeding relating thereto, 15 shall the party or parties distraining be deemed a trespasser or trespassers ab initio, on account of any irregularity which shall be afterwards done Action on the case in making the distress; but the person or persons aggrieved by such given. Tender of amends (a). irregularity may recover the satisfaction for the special damage in an action on the case: Provided always, that no plaintiff or plaintiffs sha recover in any action for such irregularity, trespass, or wrongful proceedings, if tender of sufficient amends (a) shall be made by or on (a) Under the Highway Act, 13 Geo. III. c. 78, in which powers for getting materials are given to the surveyors, it was held, that where surveyors had made a new way to carry materials, and, after action brought, had paid money into Court as amends, the sufficiency of such amends could not be questioned at Nisi Prius, but ought to have been a certained by justices of peace. (Ber field v. Porter, 13 East, 200, post). As to clauses of this description, see t "Justices," Vol. III. behalf of the party or parties who shall have committed or caused to be committed any such irregularity or wrongful proceedings, before such action brought; 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 into court such sum of money as he or they shall see fit; whereupon such proceedings, or orders and judgment, shall be had, made, and given in and by such court as in other actions where the defendant is allowed to pay money into court." 16. Actions, &c. and costs. 3 Geo. 4, c. 126. actions. Sect. 147. "If any action or suit shall be commenced against any per- Limitation of son or persons for any thing done in pursuance of this act (a), then, and in every such case, such action or suit shall be commenced or prosecuted within three months after the fact committed, and not afterwards; and Venue local. the same and every such action or suit shall be brought in the county or place where the cause of action shall have arisen, and not elsewhere (b); and the defendant or defendants in every such action or suit shall and General issue. may plead the general issue, and at the trial thereof give this act and the special matter in evidence; and if the matter or thing complained of shall appear to have been done under the authority and in execution of this act, or if any such action or suit shall be brought after the time limited for bringing the same, or be brought and laid in any other county or place than as aforementioned, then the jury shall find for the defendant or defendants; and if the plaintiff shall become nonsuit, or discontinue his or her action after the defendant shall have appeared, or have a verdict against him or her, or if, upon demurrer, judgment shall be given against the plaintiff, the defendant shall and may recover treble Costs. costs, and have the like remedy for recovery thereof as any defendant or defendants hath or have in any cases by law." But by the 5 & 6 Vict. c. 97, ss. 2 & 6 (ante, 614, n. (c)), in actions, &c. ommenced after its passing, instead of these treble costs, the defendant hall receive such full and reasonable indemnity as to all costs, charges, and expenses incurred in and about any action, suit, or other legal proreeding, as shall be taxed by the proper officer in that behalf, subject to be reviewed in like manner and by the same authority as any other taxtion of costs by such officer. By 4 Geo. IV. c. 95, s. 61, "In case any action, suit, or prosecution, Costs of trustees. all be brought or commenced against any such trustee or commisoner, for any thing done by virtue or in pursuance of the said recited ct of the third year of his present Majesty [c. 126], or this act, or any uch act for making or maintaining any turnpike road, all the costs, harges, and expenses of defending such action, suit, or prosecution, or which such trustee or commissioner shall incur in consequence thereof, hall be defrayed out of the tolls arising on the turnpike road for which (a) See the cases and decisions under be Highway Act, ante, 615. (And see Lemp. v. Burt, 1 Nev. & M. 262; 4 B. Adol. 424, S. C.; and Charlesworth Radgard, 1 Cr. M. & R. 896). (b) See Basing v. Skelton, (5 T. R. 6; 1 C. M. & R. 245). Where a staute enacted, "that no action should be commenced against any person, for any thing done in pursuance of the act, unl twenty-one days' notice should be ven to the clerk of the trustees, or after sufficient satisfaction or tender thereof made to the party aggrieved, or after six calendar months next after the fact committed, and that every such action should be brought in the county 17. Evidence, such trustee or commissioner shall act." (See Wormwell v. Haildı witnesses, and 6 Bing. 668; 4 M. & P. 512, S. C., ante, 670). oaths. Notice of action. Order and pro ceedings to be entered in books, which shall be open for inspection. Books to be evidence. Books of accounts and proceedings to be received in proving their contents, notwithstanding the act under which they have been kept is repealed; and to tion. A notice of action is required, when proceeding against an offende for a penalty, see ante, 759; but not in other cases, except agains magistrate. XVII. Evidence, Witnesses, and Oaths (@). By 3 Geo. IV. c. 126, s. 72, "All orders and proceedings of the tre tees or commissioners of every turnpike road, together with the nor of the trustees or commissioners present at every meeting, shal entered in a book or books to be kept by the clerk to the said trase or commissioners for that purpose, and be signed by the chairman the meeting or meetings at which such orders or proceedings sh from time to time made or had; and that such book or books die open at all seasonable times to the inspection of any of the tra commissioners (c), without fee or reward; and such orders 70 ceedings, so entered and signed by the chairman of such me meetings as aforesaid, shall be deemed and taken to be origina mam and proceedings; which said book or books, as well as the book er bo in which the oath or affirmation directed to be taken by the said tees or commissioners shall be entered, and also the book directed to be kept for registering mortgages and assignments, a entries in such books respectively, shall and may be read in eviden all courts whatsoever, in all cases of appeal, and in all procé suits, and actions whatsoever (c) (d).” The 9 Geo. IV. c. 77, after repealing so much of 4 Geo. IV. c. enacts, that books of account and proceedings shall be received evidence, without dence, by s. 2, enacts, "All books kept for registering mortgage signments, and all entries therein, and all books containing the a and proceedings of the trustees in the execution of any local tur act, kept according to the directions and provisions of any such at of the said recited act of the third year of the reign of his present be open to inspec jesty [c. 126] or of this act, and made evidence thereby, sha ted in evidence in all courts, and by all judges, justices, and shres without proving the facts therein contained, unless such facs »| them, shall be first controverted, notwithstanding any former amer the provisions of which such books may have been originally be repealed; and all such books shall be preserved and kept by for the time being of such trustees, and shall at all seasonable open to the inspection of the said trustees, and of any creditur të ») ditors of the tolls, without fee or reward; and the said trustees and ditors, or any of them, shall and may take copies of or extre the said book or books, or any part or parts thereof respectives, out paying any thing for the same; and in case the clerk to e (a) See in general as to evidence, witnesses, and oaths, ante, tit. "Evidence," and post, tit. "Oaths," and see ante, 606. (b) See The London and Birmingham Railway Company v. Fairclough, 3 Scott, N. R. 68. (c) See ante, 661. (d) By the 189th section of the Sheffield and Manchester Railway Act, (7 Will. IV. c. xxi.), it is directed that the orders and proceedings of the directors shall be entered in a book, and signed by the chairman of the meeting; and enacted, that, when so entered at trustees shall refuse to permit, or shall not permit, the said trustees, or such creditors, or any of them, to inspect the said book or books, or to take such copies or extracts as aforesaid, such clerk shall forfeit and pay any sum of money not exceeding 51. for every such offence." By 3 Geo. IV. c. 126, s. 73, ante, 662, a like penalty is imposed for the non-production of books of account. By 3 Geo. IV. c. 126, s. 134, "In all cases where any action shall be brought by or against any trustee or trustees, or commissioner or commissioners of any turnpike road, evidence of such trustee or trustees, commissioner or commissioners, having acted as such, together with the act of Parliament by which he or they was or were appointed, or the order, or a copy of the order for his or their appointment or election, in case he or they was or were appointed or elected by the trustees or commissioners, shall be sufficient proof of his or their being a trustee or trustees, commissioner or commissioners." (See ante, 668). It has been held, that the words in this enactment, in case he was appointed or elected by the trustees, apply to cases where there has been an appointment or election de facto by the trustees, in contradistinction to an appointment by the Road Act; and therefore proof of a party having acted as trustee, and of an order made by the trustees for his appointment or election, is sufficient; and it would be so even under a local act, whereby the appointment of new trustees on death or removal was required to be under the hands and seals of five of the old trustees, and although it was shewn that the order for such appointment was not so made. (Doed. Baggaley v. Hares, 1 Nev. & M. 237; 4 B.& Adol. 435, S. C.) If a person be named in a turnpike act as one of the trustees, and has acted as such, and been recognised as a trustee by the plaintiff, the judge, at a trial of a cause, in which the goodness of his title to act is not the matter directly in issue, will take him to be a good trustee, and will not allow evidence to be given on the part of the plaintiff, to shew hat the person has not taken the oath prescribed by the 3 Geo. IV. 126, s. 62, to be taken by trustees of the road, before they act as such. (Pritchard v. Walker, 3 C. & P. 212). tion from toll. By 3 Geo. IV. c. 126, s. 64, ante, 654, if a person be sued for acting as Witnesses (a).]-By 3 Geo. IV. c. 126, s. 137, “Any inhabitant of any Inhabitants. By 4 Geo. IV. c. 95, s. 84, "No person shall be deemed incompetent to give evidence, or be disqualified from giving testimony or evidence in any action, suit, prosecution, or other legal proceedings to be brought or had in any court of law or equity, or before any justice or justices of the peace under or by virtue of any act for making or maintaining any (a) See ante, 606. Trustees, creditors, and all officers, witnesses. 18. Forms of proceedings. 4 Geo. 4, c. 95. Collectors. Witnesses not to be excluded from giving evidence by reason of crime or interest except in certain cases. Penalty on wit- + Sic. Power to administer oaths. Forms in the sche- turnpike road, or the said recited act [3 Geo. IV. c. 126], or this act, reason of being a trustee or commissioner of such road, or a mortgag or creditor of the tolls thereof, or a farmer, lessee, or collector of se tolls, or a treasurer, or clerk, or surveyor, or other officer under s act; nor shall such testimony or evidence, for any of the reasons afte said, be rejected or liable to be questioned or set aside." By 3 Geo. IV. c. 126, s. 59, "In case any dispute, suit, or litigation shall arise, touching or in anywise relating to the tolls granted by a act of Parliament, the person or persons appointed to collect the sa or any other person or persons acting under the authority of the tr tees or commissioners, shall not be incompetent to give evidence in such dispute, suit, or litigation, on account of his being appointed: collect such tolls." By the 6 & 7 Vict. c. 85, witnesses are not to be excluded from z evidence by reason of incapacity from crime or interest. But th does not render competent any party to any suit, action, or pre individually named in the record, or any lessor of the plaintif.. of premises sought to be recovered in ejectment, or the landlor person in whose right any defendant in replevin may make oct. or any person in whose immediate and individual behalf any a be brought or defended, either wholly or in part, or the husband of such persons respectively. And nothing in this act is to apply: affect any suit, action, or proceeding, brought or commenced before passing of the act [22d August, 1843.] (See this act, ante, tit. "Er dence"). By 3 Geo. IV. c. 126, s. 138, "If any person or persons, after having paid or tendered a reasonable sum of money for his, her, or their e charges, and expenses, shall be summoned as a witness or witnesses t evidence before any justices* of the peace, touching any matter of contained in any information or complaint for any offence against ar of Parliament relating to turnpike roads, or this act, either on the of the prosecutor or the person or persons accusedt, shall refuse or r to appear at the time and place for that purpose appointed, with reasonable excuse for his, her, or their refusal or neglect, or app shall, (after having been paid or tendered a reasonable sum for des charges, and expenses), refuse to be examined upon oath, and dence before such justice of the peace, then, and in either of sch such person shall forfeit, for every such offence, any sum ne art: 40s." As to witnesses in general, see ante, tit. " Evidence.” Oaths.]-By 3 Geo. 4, c. 126, s. 146, "Where any oath or aff is by this or any act relating to any turnpike road required and de to be made or taken, the justices of the peace of any county or pla the trustees or commissioners of any turnpike road, (as the cas be), and according to the several jurisdictions herein given to respectively as aforesaid, shall, and they are hereby respectively powered to administer the same." As to oaths in general, see, post, tit. “Oaths.” XVIII. Forms of Proceedings. By 3 Geo. IV. c. 126, s. 148, "The forms of proceeding relative! several matters contained in this act, which are set forth and exp in the schedule hereunto annexed, may be used upon all occasions such additions and variations only as may be necessary to adapt t the particular exigencies of the case, and that no objection shall** or advantage taken for want of form in any such proceedings; person or persons whomsoever (a).” (a) See ante, 696, as to the effect of the 9 Geo. 4, c. 77, ss. 6 & 7 |