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power given

money on

rates.

and in lieu thereof be it enacted, that the local board, or any pealed, and board of improvement commissioners exercising the borrowing for raising powers of the Public Health Act, 1848, may, for the purpose credit of of defraying any costs, charges, and expenses incurred (d) or to be incurred by them in the execution of this Act or of any Act incorporated herewith, or of any Act incorporating the powers of the Public Health Act, 1848, borrow and take up at interest, on the credit of the charges (e) and rates authorized to be made or collected under the said Acts respectively, any sums of money necessary for defraying any such costs, charges, and expenses;

And for the purpose of securing the repayment of any sums so borrowed, together with such interest as aforesaid, the said local board may mortgage (f) to the persons by or on behalf of whom such sums are advanced the said charges and rates or any of them;

But the exercise of the above power shall be subject to the following regulations:

(1.) Such money shall not be borrowed except for permanent

(d) It is to be observed that the mortgage may be made in respect of works done, as it may be to defray costs and expenses incurred. Here the legislature lost sight of, or overruled the principle which opposes retrospective rating.

The consent of the secretary of state is indeed to be obtained to the charge, and this is some protection to the ratepayers. But it is difficult for any public officer to resist applications of this nature.

As the 111th section of the 11 & 12 Vict. c. 63 remains unrepealed, the form of charge given by that Act will be available for charges created under the Act in the text.

(e) The word charges refer to the rentcharges created under sect. 58, post, as 11 & 12 Vict. c. 63, only authorizes the making of rates, and contains no provision for the creation of other charges; though it may, perhaps, be found that a similar security has been created in some of the Acts referred to in the text. It will be observed that the local board may mortgage any of the rates levied by them to meet the charge of any works executed by them. The creditor will have the security of the general rate though the works are for private improvements only. The ratepayers, however, are to be protected by the concluding proviso.

(f) The mortgage of the charges consists in the creation of the rents, which are in themselves mortgages.

Sanction of

works (c), nor without the sanction of one of Her Majesty's principal secretaries of state (d):

(2.) The money so borrowed shall not, except as hereinafter provided (e), at any time exceed in the whole the assessable value for one year of the premises assessable within the district in respect of which such money may be borrowed (f):

(c) This word is introduced from the former statute, but neither statute defines what are permanent works. Probably it is not practicable to give a complete definition, but it is clear that new and substantial works would come within the meaning, while mere repairs would not. In any given case it must be determined whether it fall within the one or the other category, and the proposed lender of the money must be satisfied upon this point.

It is presumed that he is only required to ascertain the object for which the local board propose to borrow the money, and that he is not required to see to the application of the money which he advances.

(d) The consent of the secretary of state is substituted for the consent of "the general board of health," it being deemed necessary that a control should be exercised over the local board in this respect, where a charge is to be shifted from present ratepayers to their successors. might have been more advantageous to impose a control upon outlay than upon the borrowing of the money to repay it.

It

Here may be introduced section 14 of the 24 & 25 Vict. c. 61, which enacts that, "In all cases in which prior to the passing of 'The Local the Secretary Government Act,' all or any of the powers or provisions of The Public of State sub- Health Act, 1848,' relative to the borrowing of money or the mortgaging of stituted for the sanction rates, are repeated in any local Act of parliament, or in which it is

of the
General

Board of
Health.

declared in and by such local Act that the same shall be read and construed as if all or any of such powers and provisions had been repeated therein, so as to confer thereunder upon any such local board of health or board of improvement commissioners powers corresponding with all or any of the borrowing or mortgaging powers contained in "The Public Health Act, 1848,' and where the sanction, consent, direction, or approval of the general board of health is rendered requisite in or by any such local Act to the due exercise of any of the powers vested thereby in any local board of health or board of improvement commissioners, such powers or any of them shall and may be henceforth exercised with and under the sanction, consent, direction, and approval of one of Her Majesty's principal secretaries of state, in lieu of the sanction, consent, direction, and approval of the general board of health aforesaid, and not otherwise."

(e) See sect. 78, post.

(f) These words are taken from the last Act, into which they were inserted, as Mr. Lawes states in his note on 11 & 12 Vict. c. 63, s. 107, by the House of Commons in the committee on the bill. The language has been criticised, but it may be fairly understood to signify the annual rateable value of the whole of the assessable property within the district taken for the year next preceding the loan, the assessable property meaning that which is assessable to their district rate.

(3.) The money may be borrowed for such time, not exceeding thirty years (g), as the local board, with the sanction of one of Her Majesty's principal secretaries of state, determine in each case;

And, subject as aforesaid, the local board may either pay off the monies so borrowed by equal annual instalments, or they may in every year set apart as a sinking fund, and accumulate in the way of compound interest by investing the same in the purchase of exchequer bills or other government securities, such sum as will be sufficient to pay off the monies so borrowed, or a part thereof, at such times as the local board may determine (m);

And in cases where the local board borrow any money for the purpose of defraying private expenses, or expenses in respect of which they have determined a part only of the district to be liable (i), it shall be the duty of the local board, as between the ratepayers of the district, to make good, so far as they can (k), the money so borrowed, as occasion requires, either out of private improvement rates, or out of a rate levied in such part of the district as aforesaid (1).

LVIII. Where any person shall advance money for any Rentcharge

(g) In sect. 78, post, there is a provision to allow this time to be extended under certain circumstances to fifty years.

(h) This is a very questionable option. If the local board accumulate and form a sinking fund, there is nothing to resist the strong temptation which may arise of applying the accumulation to some other purpose. Such a proceeding might probably be prevented by the intervention of some ratepayer; but if all the ratepayers concur, or if no one interfere, as may probably be the case, the board may act with impunity.

(i) It seems that reference is here made to 11 & 12 Vict. c. 63, s. 89, ante. See note thereon.

(k) The legislature are aware of the great difficulty with which the local board will be involved in respect of private improvement expenses. The theory of these provisions is good, but the practice, with strict legal regularity, must prove very embarrassing.

(1) No special district rate can be levied, see sect. 54, ante. But it seems that reference should be made to the assessment which the local board can make where they divide their district into parts for certain purposes, under 11 & 12 Vict. c. 63, s. 89, ante.

may be

advances

made to meet first

vate im

provements.

granted for expenses which by the said Public Health Act, 1848, are, or by the said local board shall be, declared to be private costs of pri- improvement expenses, the said local board (a), on being satisfied by the report of their surveyor or otherwise that the money advanced by such person has been duly expended, may issue a grant in the Form B. in the schedule hereunto annexed to such person of a yearly rent-charge to be issuable out of the premises (b) in respect whereof such advance shall have been made, or out of such part thereof, to be specified in such grant, as the said local board shall think proper and sufficient, such rentcharge to be personal estate (c) and to begin to accrue from the day of completion of the works on which such money shall have been expended as aforesaid, and be payable by equal half-yearly payments for and, during a term not exceeding thirty years, in such manner that the whole of the said sum so to be advanced as aforesaid, with the costs of preparing the said grant so to be issued as aforesaid, together with interest thereon respectively at a rate not exceeding six pounds per centum per annum upon the sum from time to time remaining unpaid, shall be repaid at the end of the said term ().

Provided always, that the grantee of such rentcharge shall for the recovery of the same have all the powers, authorities, rights and remedies of the said local board with respect to

(a) This is a new provision by which a stranger is enabled to charge a rent upon the land of another, but it is analogous to the enactments by which rents have been charged upon lands in commutation of tithes, except that there an action is given for the recovery of the rent. No action is given by this section. See Willoughby v. Willoughby, 4 Q. B. 487 ; Bedford v. Sutton Coldfield, 3 Scott (N.s.), 449.

(b) Hence, if the premises charged be afterwards severed, the rent will continue a charge upon every portion. With reference to the difficulty arising out of such a state of circumstances, see Bedford v. Sutton Coldfield, 3 C. B. (N. s.), 449; Rivis v. Watson, 5 M. & W. 255.

(c) This provision will affect the devolution of the property in the case of intestacy. See the observations of the judges in Bligh v. Brent, 2 Y. & C. 268.

(d) A question of some difficulty will arise whether after the lapse of the thirty years any, and, if so, what amount of arrears will be recoverable?

private improvement rates (e), and the provisions of the ninety-first (f) and ninety-second sections (g) of the Public Health Act, 1848, shall also be applicable to such rentcharge.

to be regis

LIX. All rentcharges made in pursuance of this Act, and Rentcharges transfers thereof, shall be registered in the same manner tered. respectively as mortgages and transfers are required to be registered under the one hundred and eleventh and one hundred and twelfth sections of the Public Health Act, 1848 (h).

AUDIT OF ACCOUNTS.

LX. The one hundred and twenty second section of the Provisions Public Health Act, 1848 (i), shall be repealed,

as to audit of accounts.

It Proceedings.

(e) See 11 & 12 Vict. c. 63, s. 90, ante, which enables private improvement rates to be made. Sect. 103, ante, provides a summary remedy before justices for the recovery of the rate when in arrear. appears therefore that there will be no independent right to distrain upon default, but there must be a distress warrant issued by the justices after a summons and hearing. It will be seen from the form itself post, (Sched. B.) that it gives no right to distrain upon the premises for the arrears. The limitation of time prescribed by the 11 & 12 Vict. c. 43, s. 11, and not as it seems to apply in this case, as there is no information for a penalty, nor any order of the justices made for the payment.

(f) See ante. The section referred to enables the lessee to deduct a part of the rate from the rent payable by him to his lessor.

(g) See ante. The section referred to enables the improvement rate to be redeemed by the owner.

(h) Reference may be here made to the 23 & 24 Vict. c. 16, s. 12, Powers of which provides that where in any borough subject to the 5 & 6 Will. 4, Local Boards c. 76, a surplus is standing to the credit of the borough fund, arising in Borough. from the rents and profits of the property of the corporation, and not from a borough rate, and such borough is a district within the meaning of the Public Health Act, 1848, the corporation acting as the local board of health, may with the consent of such corporation apply such surplus in payment of any expenses that have been previously to the passing of that Act (i. e. 15th May, 1860,) or may thereafter be by them incurred, acting as the local board of health of such borough, in the improvement of the borough or any part thereof by drainage, enlargement of streets or otherwise, in pursuance of "The Public Health Act 1848," and "The Local Government Act, 1858," or one of them.

Section 13 provided that nothing in the Act should repeal, abridge, or Proviso as to affect powers already existing under local Acts. See upon this section local Acts. the case of Attorney-General v. Corporation of Birmingham, ubi supra.

(i) See ante.

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