and to account.

and take from him sufficient security for the faithful execution Local officers, of his office; and every officer employed in the collection of etc., intrusted rates under the Act, within seven days after he shall have with money to received any moneys on account of rates, must pay over such give security, money to the Treasurer; and, when the Local board may direct, deliver a signed list containing the names of all persons who have neglected or refused to pay any rate, and the sums respectively due from them. Every officer appointed or employed by Officers to or acting under the Local Board must, when required by the account for Board, make out and deliver an account of all moneys received, money stating how and to whom and for what purpose such moneys 11 & 12 Vict. have been disposed of, and deliver the vouchers or receipts for c. 63, s. 39. all payments, and pay over to the treasurer all moneys owing upon the balance of the account.

Ib.

re

If any officer fail to render such account, or to produce and Failure to deliver up his vouchers and receipts or to pay over any moneys, account, etc. or if for the space of five days after being required he fail to deliver up to the Local Board all papers and writings, property and effects in his possession or power, relating to the execution of the Act, or belonging to the Board, he may be summoned before two justices, and committed to gaol until he shall have rendered such accounts, and produced and delivered up all vouchers, receipts, books, papers, writings, and property in respect of which the charge was made. If it appear that the officer has failed to pay over any moneys, and that he still fails or refuses, the justices may by warrant cause such moneys to be levied by distress, and in default of distress commit him to gaol for a period of three months, unless the moneys be sooner paid. If, however, the complainant, by deposition on oath, show to the satisfaction of any justice that there is probable cause for believing that the officer charged intends to abscond, such justice may, without previous summons, by warrant under his hand and seal, cause him to be forthwith apprehended; and within twenty-four hours afterwards he is to be brought before the same or some other justice, who may order that he be discharged from custody if he think that there is no sufficient ground for detention, or that he be further detained until he be brought before two justices, unless satisfactory bail be given : no such proceeding is, however, to be construed to relieve or discharge any surety of the offender from any liability.

The commitment by two justices under 11 & 12 Vict. c. 63, S. 39, of a member of the Town Council and Local Board of a Borough for non-delivery of a rate-book in his possession by virtue of his office as overseer and collector of the borough rates, is a civil and not a criminal proceeding, being in the nature of a distraint. The offence of non-delivery consists in continuing to retain the subject of distraint, and therefore the limitation of six months under the 11 & 12 Vict. c. 43, s. II, does not apply. Semble, per Lush, J., such limitation will only

Justices defined.

11 & 12 Vict. c. 63, s. 2. Justices defined.

Ib. s. 2.

Stipendiary magistrates.

21 & 22 Vict.

c. 73, s. I.

Ib. s. 2.

apply where the object of the proceeding is punishment, and not merely coercion. (1)

Wherever the word "justice" is used in the Act, it is to mean any justice of the peace acting for the place in which the matter or any part of the matter requiring the cognizance of the justice arises; and the words "two justices" mean two or more justices assembled and acting together in petty sessions, or one stipendiary or police magistrate acting in any police court for the place in which the matter or any part of the matter requiring the cognizance of two justices arises. With regard to the jurisdiction of justices and their protection, see the third edition of Jervis's Acts, 11 & 12 Vict. cc. 43, 44, by the author of this work; also the 20 and 21 Vict. c. 43, and the 21 & 22 Vict. c. 73. By the latter act (sect. 1) every stipendiary magistrate appointed for any city, town, liberty, borough, place, or district, sitting at a police court or other place appointed in that behalf, has power to do alone any act, and to exercise alone any jurisdiction which under any law now in force, or any law not containing an express enactment to the contrary, thereafter to be made, may be done or exercised by two justices of the peace; and all the provisions of any Act of Parliament auxiliary to the jurisdiction of such justices are applicable to the jurisdiction of such stipendiary magistrate. The authority so given to a stipendiary magistrate shall extend and apply as well to the cases where the act or jurisdiction is or may be expressly required to be done or exercised by justices sitting or acting in petty sessions as to other cases; and any enactment authorizing or requiring persons to be summoned or to appear to such petty sessions, shall, in the like cases, authorize or require persons to be summoned or to appear before the stipendiary magistrate having jurisdiction at the police court or other place appointed for his sitting.

With regard to the appointment of stipendiary magistrates in certain districts under Local Boards, see the chapter on the subject, post.

(1) Meyer v. Harding, 17 L. T. (N. S.) 140; 32 J. P. 421.

CHAPTER X.

PROVISIONAL ORDERS OF LOCAL GOVERNMENT BOARD.

any

c. 98, s. 77.

WHENEVER it appears desirable to the Local Board of any dis- Petition for trict, or to the majority of the owners and ratepayers in incorporation. parish, township, hamlet, or place, maintaining its own roads 21 & 22 Vict. or its own poor, adjoining any district, or the majority of owners and ratepayers in any part of a district, ascertained in the way provided for voting with respect to the adoption of the Act, 21 & 22 Vict. c. 98 (ante, p. 14),

That any portion of such parish, etc., should be incorporated with the district, or that part of the district should be separated therefrom:

Or whenever it appears to the Local Board desirable,

That provision should be made for the future execution of any Local Acts in force within the district, having relation to the purposes of the Local Government Act, and not conferring powers or privileges upon corporations, companies, undertakers, or individuals, for their own pecuniary benefit;

Or that any Acts, or any exemptions from rating derived. therefrom, or any provisional Order or Orders in Council. applying the Public Health Act, 1848, or Act confirming such provisional orders, should be wholly or partially repealed or altered,

(1.) They may present a petition to the Local Government Board, praying for such incorporation, separation, provision, repeal, and alteration, or for any of such things, which petition shall be supported by such evidence as the Local Government Board requires.

(2.) Upon the receipt of the petition, inquiry may be directed in the district in respect of the several matters mentioned in the petition, after giving fourteen days' notice of the time, place, and subject of the inquiry.

(3.) The Local Government Board may afterwards issue a Provisional provisional order in relation to the several things mentioned in order of Local Governthe petition, either in accordance with the prayer of it, or with ment Board. such modifications as may be requisite. When the order pro- Ib. vides for the incorporation of a portion of any parish, etc., with the district, or the separation of any part from the district, an inspector is to proceed to the district for the purpose of obtaining the consent to such order of the place of which it is proposed that a portion should be incorporated, or of the part to be separated, and also, if the order provide for any such

c. 98, s. 77.

incorporation, the consent of the petitioning district to the order.

Consent to (4.) The consent of the petitioning district to the order shall provisional be testified by a resolution of the Local Board of the district, order, how and the consent of any place or part by a resolution passed testified. 21 & 22 Vict. by a majority of the ratepayers resident in any place or part assembled at a meeting convened for the purpose. For the purpose of obtaining such consents the inspector, upon fourteen days' notice, has power to convene meetings of the Local Board of any district, or meetings of the ratepayers of any place or part, and to do such things as may be expedient for that purpose.

Meetings to

consent.

Ib.

Confirmation. of Order by Act of Par

liament.

Ib.

Power to

mittees on

Bills confirming Provisional Orders to award costs. 34 Vic. c. 3,

(5.) In the case of a meeting of the ratepayers of any place or part, the ratepayers present are to elect a chairman; and a declaration by the chairman that the opinion of the meeting is in favour of or against any resolution, in the absence of proof to the contrary, is sufficient evidence that the resolution is passed the inspector has power to attend any such meeting.

(6.) Whenever any consents as before mentioned have been given, the Local Government Board, as soon as may be, is to take all necessary steps for the confirmation of the provisional order by Act of Parliament. Previously to confirmation, the order is not of any validity, and any Act of Parliament confirming the order is to be deemed a Public General Act. In case a petition shall be presented to either House of Parliament against any provisional order framed in pursuance of the Act, in the progress through Parliament of the Bill confirming the order, the Bill, so far as it relates to the order petitioned against, may be referred to a Select Committee, and the petitioner is to be allowed to appear and oppose it as in the case of private Bills.

By an Act to empower Committees on Bills confirming or Select Com- giving effect to Provisional Orders to award costs, and examine witnesses on oath, any Select Committee of either House of Parliament to which any Bill for confirming or giving effect to Provisional Orders has been referred, in relation to any Provisional order therein contained, may award costs, in like manner and under the same conditions under which costs may be awarded by any Select Committee under the Act of the 28 & 29 Vict. c. 27; and the provisions of the said Act, so far as they are applicable, shall have effect accordingly.

S. 2

Interpretation

of "Provi

For the purpose of the 34 Vict. c. 3, the words "Provisional Order" shall include provisional certificates, schemes, sional Order." and orders in the nature of Provisional Orders, made under Examination the authority of any statute, and requiring to be confirmed, sanctioned, or carried into effect by Act of Parliament.

Ib. s. 4.

of witnesses

on oath by Committee

of House of Commons.

Any Committee of the House of Commons may administer an oath to the witnesses examined before such Committee; and any person so examined who wilfully gives false evidence

34 & 35 Vict. shall be liable to the penalties of perjury.

c. 83, s. I.

Orders.

The provision for the repayment of costs, charges, and ex- Costs of Propenses, incurred by the Local Government Board in relation visional to any provisional order under sect. 75 of the 21 & 22 Vict. c. 98, extends to all provisional orders under that Act. The c. 61, s. 27. following is the provision referred to:

24 & 25 Vict.

(7.) All costs, charges, and expenses incurred by the Board 21 & 22 Vict. in relation to any such provisional order, to such amount as c. 98, s. 75. the Commissioners of the Treasury think proper to direct, are to become a charge upon the general district rates levied in the district to which the order relates, and be repaid to the Treasury by annual instalments not exceeding five, together with five per cent. interest, to be computed from the date of the order, upon so much of the principal sum as may from time to time remain unpaid.

certiorari.

A provisional order of the Secretary of State, under s. 77 of Provisional 21 & 22 Vict. c. 98, is not one that can be removed by certio- order cannot rari for the purpose of being quashed-per Cockburn, C. J., the be quashed by object of the inquiry by the Secretary of State, wherein he makes his order, is to supersede certain inquiries by the Parliament itself, which would considerably enhance the expense; in fact, to substitute an inquiry by the Secretary of State, and so assist the legislature in deciding whether or not the measure is proper one to pass into a law, and until the Act of Parliament is obtained the order itself has no validity; and were we to question this order, we should be usurping functions which do not belong to us, and be stepping in to stop the action of Parliament. This is beyond the sphere of an action. (1)

The provisional order which was in question was afterwards confirmed by Parliament, see 28 & 29 Vict. c. 110, post.

As regards provisional orders for the purchase of Lands, see the chapter on the Purchase of Lands, post, p. 434.

(1) Frewen v. Hastings, 12 L. T. (N. S.) 346; 34 L. J. Q. B. 159; 11 Jur. (N. S.) 670; 29 J. P. 711. S. C. Reg. v. Hastings, 6 B. & S. 401.