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(e.) In cases in which the court of quarter sessions for a Boroug
Fund. county, or a justice acting in and for a county in the discharge of his judicial duty, might make an order for
the payınent of money on the treasurer of the county. (4.) Saving, nevertheless, in relation to the application of the borouch fund as authorized by this section, or otherwise by this Act, all rights, interests, and demands of all persons in or on the real or personal estate of the municipal corporation, by virtue of any legal proceeding, or of any mortgage, or otherwise.
[The effect of sections 59 and 92 of the Act of 1835, and section 30 of 41 & 42 Vict, c. 26 (1818), is preserved in this clause. As to whether corporate property held for public purposes can be taken in execution, see Doe dem, Parr v. Roe (1 Q.B., 700). As regards authority of council to oppose a local bill and defray expenses from berough fund, where no surplus, see Rig. v. Mayor of Sheffield (L.R., 6 Q.B., 652) contra Attorney-General v. Mayor of Wigan (1 Kay, 268). The saving in subsection 4 is framed with reference to Arnold v. Mayor of Gravesend (2 K, & J., 574)].
141.-(1.) An order of the council for payment of money Orders for out of the borough fund shall be signed by three members of boney. the council, and countersigned by the town clerk.
(2.) Any such order may be removed into the Queen's Bench Division of the High Court by writ of certiorari,* and may be wholly or partly disallowed or confirmed on motion and hearing, with or without costs, according to the judgment and discretion of the court.
[The effect of section 69 of the Act of 1835, and section 44 of 7 Will. 4 & 1 Vict. c. 78 (1837) is preserved in this clause As to payment of the cost of a dinner to manorial juries from the borough fund, where the corporation were lords of the manor, see Rog. v. Mayor of Bideford, 47 J P. 756, by which the expenditure was declared to be without authority. See Ward v. Mayor, fc., of Sheffield (19 Q.B.D., 22), wherein Cave J. (in 1887) held that the Town Council of a borough was not bound under the Public Health Act, 1815, Schedule II., rule 19, to keep a register of owners and proxies for the purpose of taking a poll in the borough with respect to the application under 36 & 36Vict. c. 91 of the borough fund in opposing local and personal Bills in Parliamentj.
142.-(1.) All payments to and out of the borough fund Payments to shall be made to and by the treasurer.
(2.) All payments to the treasurer shall go to the borough fund. [The effect of section 92 of the Art of 1835 is preserved in this clause. The court will not issue mandamus to the mayor to pay over money arising from the rent of corporate property to the treasurer of the borough unless application be made by the treasurer, or after he has been required to demand such money from the mayor.— Reg. v. Frost (8 A. & E., 832)].
143.-(1.) If the borough fund is more than sufficient for Application of the purposes to which it is applicable under this Act, or other- borough fund.
* The cases bearing upon this power of removal are Reg. v. Mayor of Liverpool 41 L.J., Q.B., 175); Reg. v. Mayor of Bridgwater (10 A. & E., 281); Reg. v.Paramore Ib. 286); Reg. v. Town Council of Lichfield (4 Q.B., 893); Attorney-General v. Mayor of Wigan (1 Kay, 286); Reg. v. Mayor and Corporation of Sheffield M.R., 6 Q.B., 652); Reg.v. Prest (16 Q. B., 32); Reg. v. Dunn (5 Q. B., 959 ; Reg. v. Greene (4 Q.B., 646).
and by treasurer.
wise by law, the surplus thereof shall be applied under the direction of the council for the public benefit of the inhabitants and improvement of the borough.
(2.) If the surplus arises from the rents and profits of the property of the municipal corporation, and not from a borough rate, and the borough is a sanitary district under the Public Health Act, 1875, then the municipal corporation, as the sanitary authority for the borough, may apply the surplus in payment of any expenses incurred by them as such sanitary authority, before or after the commencement of this Act, in improving the borough, or any part thereof, by drainage, enlargement of streets, or otherwise, under the Public Health Act, 1875, or any Act thereby repealed.
[The effect of section 92 of the Act of 1835, and section 12 of 23 & 24 Vict. c. 16 (1860), is preserved in this clause. The watch committee of Liverpool, the borough fund of which town hud a surplus, made an order on the borough treasurer for the payment of the costs of a police officer who had prosecuted a newspaper for a libel upon him in the discharge of his duty. Held that such order was not in respect of an “allowance," nor a charge or expense for the purposes of the constabulary force within the meaning of sec. 82 of 5 & 6 Will. 4., c. 76, nor an application of the fund for the public benefit of the inhabitants of the borough within sec. 92, and that a rule must go for a certiorari to bring up the order for the purpose of being quashed. Reg. v. The Mayor and Town Council of Liverpool (41 L. J. R., N. S., Q. B., 175.) This section removes all difficulty where a surplus exists, and invests the council with an absolute discretion as regards outlay for the public benefit and improvements of the borough).
Power for councii to make borough rato and assess contribntion thereto.
144.-(1.) If the borough fund. is insufficient for the purposes to which it is applicable under this Act or otherwise by law, the council shall from time to time estimate, as correctly as may be, what amount, in addition to the borough fund, will be sufficient for those purposes.
(2.) In order to raise that amount, the council shall, subject to the provisions of this Act, from time to time order a rate, called a borough rate, to be made in the borough.
(A borough rate is valid though not made in public. Jones v. Johnson (5 Ex., 862)].
(3.) A borough rate may be made retrospectively, in order to raise money for the payment of charges and expenses incurred, or which bave come in course of payment, at any time within six months before the making of the rate.
[See Woods v. Reed (2 M. & W., 777), Attorney-General v. Corporation of Lichfield (11 Bev., 120) and Jones v. Johnson (6 Ex.,862), the difficulties of which Are removed by this subsection).
(4.) The council shall assess the contributions to the borough Borough rate on the several parishes and parts of parishes in the borough in proportion to the total annual value of the hereditaments in each parish or part which are rateable to the poor, or in respect of which a contribution is made to the poor rate.
(5.) That value shall be estimated according to the valuation list (if any) in force for the time being, and if there is none, according to the last poor rate.
(6.) But if for any reason the council think that the valuation list or poor rate is not a fair criterion of value they may cause an independent valuation to be made.
(7.) For the purpose of assessing a borough rate, or for the purpose of an independent valuation, the council from time to time may cause any of the books of assessment of any rates or taxes, parliamentary or parochial, on any property, and the valuation by which the assessment is made, in the hands of the overseers, to be brought before them, and may tako copies thereof or extracts therefrom, or may direct any person to take copies of or extracts from such books being in his hands, without having the same brought before the council, or may call before them any overseer to give evidence respecting the same; and may cause copies of the total amount assessed in each parish in respect of any tax payable to the Crown, and the total amount of the valuation of the property on which that assessment was made in any past year, to be made out by the clerk to the commissioners of each district.
(These orders should be made under seal after being determined by the council.]
(8.) The overseers and such persons as they select, by warrant of the council, signed by the mayor and sealed with the corporate seal, may enter on, view, and examine any land chargeable to the borough rate, in order to ascertain the annual value at which it ought to be charged; but no such entry shall in any case be made unless fourteen days' previous notice in writing, signed by the mayor and sealed with the corporate seal, of the intention to make the entry, has been given to the overseers and to the persons on whose land the entry is to be made.
(9.) If on any occasion the overseers of a parish think that their parish is aggrieved by a borough rate, on account of the proportions assessed as the contributions of the respective parishes being unequal, or on account of some parish being
without sufficient cause omitted, or on account of any other just cause of complaint, they may appeal to the recorder at the next quarter sessions for the borough, or if there is none, to the next quarter sessions for the county wherein the borough is situate, or whereto it is adjacent, against such part of the rate only as affects their parislı.
[A town council of a borough levier a borough rate under 5 & 6 Will, 4, c. 76, A. 92; an out-township being one of the townships assessed to such rate. The rate was duly levied and paid. The overseers of the parish having appealed to the berough quarter sessions aguicst the rate, the sessions made an order to amend the rate by increasing the amount at which the township was assessed. No notice of the appeal was given to the out township. The overseers (f the out-township having refused to pay the additional amount assessed-Held that the remedy of the town council. if any, for enforcing the payment of such addi. tional rate was by a warrant of distress issued by the mayor or two justices for the borough under 7 Will. 4 and i Vict. c. 81, s. 1, and not by a mandamus to the overseers to enforie such payment.--Reg. v. Overseer's of Huntslet (El. & Ei., 775)7.
. 10.) The recorder or quarter sessions shall hear and finally determine the appeal, and either confirın such parts of the rate us are appealed against, or correct any inequalities, disproportions, or omissions proved to exist thercin, as to him or them appears just.
(11.) The expenses of the appeal shall be paid by such parishes or persons and in such proportions as the recorder or court having cognisance of the appeal directs.
(12.) If any person having custody of any book for which the council call under this section, fails to produce it to the council, or to permit any copy thereof or extract therefrom to be made or taken, or to give such evidence as the council require, he shall, on summary conviction, be liable to a fine not exceeding ten pounds.
(13.) If any clerk to the commissioners of a district fails to make any copy, which he is required to make under this section, within a reasonable time after his receipt of the order to make it, he shall, on summary conviction, be liable to a fine not exceeding twenty pounds.
[The effect of section 92 of the Act of 1835, and 55 Geo. 3, c 51, is preserved in this clause].
145.-(1.) Where a parish is wholly in a borough, the council may from time to time, if they think fit, order the overseers to pay the contribution of the parish to the borough rate out of the poor rate made or to be made for the parish.
(2.) The overseers shall pay the contribution to the council or as they order.
Collection of borough rate in undivided parish.
borongh rato in divided
(3.) If the overseers fail to pay as ordered, the amount may Borough be levied* off the goods of them or any of them, by distress, by“ virtue of a warrant signed by the mayor and sealed with the corporate seal, or signed by two justices in and for the borough.
[The effect of 7 Will. 4 and 1 Vict. c. 81, is preserved in this clause, which was originally enacted in consequence of the Act of 1835 having omitted to extend to borough rates some of the provisions of the 55 Geo. 3 c. 51. The terins of this clause and also those of the following clause have been modified from the original enactinents with the object of better harmonizing the coliection of borough rates with the general law of rating).
146.-(1.) Where a parish is partly in and partly out of a Collert borough, the overseers, on receipt of an order for payment of je
parish. money for the contribution of the part in the borough towards a borough rate, which order the council may make as if the whole parish was in the borough, shall assess on and levy from the occupiers of hereditaments rateable to the poor rate in that part of the parish the amount necessary for the contribution, either as a separate rate, for which the overseers shall have all the powers which belong to them for levying a poor rate, or with and as part of the poor rate to wh ch occupiers in that part of the parish are liable in common with occupiers in the other part.
[It is unfortunately far from clear in what method the rate should be levied in parishes wholly within the borough whe.e an order is not made in pursuance of sec. 145, although it may reasonably be inferred that it should be in the same way as a poor's rate, and also that it should be levied and collected by the overseers and collectors of the poor's rate).
(2.) Any person rated under this section may appeal against the rate in like manner and with the like consequences, and subject to the like provisivns and regulations, as in appeals against a poor rate.
Notice of appeal must be given to the town clerk, he being the proper officer of court.-Rog. v. Recorder of Carmarthen (7 A. & E., 756). It must state that tbe party appealing is aggrieved, or show facts from which such may be inferred.— Rex. v. Bond (6 A. & E., 905)).
(3.) The overseers shall pay the amount of the contribution to the council, or as they order, and in default thereof shall be subject to all provisions and penalties provided by law concerning nonpayment of contribution to a borongh rate.
(4.) Every overseer and collector shail account for the money collected and expended under this section to the auditor of the district comprising the parish in the like manner, and with the like incidents, consequences, liabil ties, and power of appeal as in the case of the poor rate ; and the Local Government Board shall have the like power to make orders to regulate the mude of accounting as they have in regard to other local lates. (5.) If any balance is found in the hands of any such overseer
* Sce subsec:ion 9 of sertion 114, p. 131 ante,