Mortgages Act, 1860, as to the cities and towns to which the Chap. XXV. repealing Act applies. (i.) Sect. 108 of the repealing Act re-imposes upon the councils Restricted of those bodies corporate to which it applies a restraint upon powers of borrowing mortgaging corporate land without the approval of the Treasury, under this now the Local Government Board (d), unless authorized so to do by Act of Parliament. Act. of the Act. The repealing Act applies "to every city and town to which Application the Municipal Corporations Act, 1835, applies at the commencement of this Act, and to any town, district, or place whereof the inhabitants are incorporated after the commencement of this Act, and whereto the provisions of the Municipal Corporation Acts are under this Act extended by charter, but to no other place" (e). The cities and towns in respect to which special provisions as to borrowing were contained in the Municipal Corporations Act, 1835, are those "bodies corporate" mentioned in the schedules A. and B. to that Act (f); the use of the words "council," "corporate land," &c. in the empowering sections of the Act of 1882 seems to show that the provisions of that Act as to borrowing are to extend to such cities and towns only, and not to all the cities and towns to which the Act of 1835 in any way applies. By sect. 106 of the Act of 1882 it is enacted that "The council may, with the approval of the Treasury (Local Power to Government Board), borrow at interest on the security of any borrow with corporate land, or of any land proposed to be purchased by the approval of Treasury. council under this Act, or of the borough fund or borough rate, or of all or any of those securities, such sums as the council from time to time think requisite for the purchase of land, or for the building of any building which the council are by this Act authorized to build." mortgage cor And by sect. 109, the council is empowered, with the approval Power to of the Local Government Board, to dispose of any corporate porate land. land by way of mortgage or charge "in such manner and on such terms and conditions as the Local Government Board approve.' By sects. 112 and 113 of the same Act, the Local Govern- Repayment of loans. ment Board is empowered to require the mortgage debt to be (d) 51 & 52 Vict. c. 41, s. 72. (e) 45 & 46 Vict. c. 50, s. 6. (ƒ) 5 & 6 Will. IV. c. 76, ss. 94 and 142. (i.) Chap. XXV. repaid, with interest, within thirty years or any less period, and either by instalments, or by means of a sinking fund to be provided in manner prescribed by the Act. Power to borrow for buildings. Provisions as to existing mortgages. Remedy of mortgagee. Bonds charged on Sect. 120 empowers the council of a borough to borrow money from the Public Works Loan Commissioners for buildings by mortgage of the rates. Sects. 125 to 132 inclusive of the same Act contain provisions with regard to mortgage debts, &c., contracted by municipal corporations at different periods prior to the commencement of the Act. Where, under a special Act, debentures of a corporation were payable, so many each year, out of the rates by ballot, it was held that the holders of the bonds not drawn were not entitled to sue or have a receiver for payment of their principal (g); but an account of the rates was decreed when the corporation had deprived the debenture holder of the benefit of the ballot (h). If debentures are payable out of future rates, the remedy is not a receiver, but a mandamus (i). Bonds charged on a borough fund, made up of rents and borough fund. profits and mortgages of tolls, being ancient franchises, were held () to be debts affecting the corporation lands, under sect. 69 of the Lands Clauses Consolidation Act (1). Power to borrow on credit of rates for sanitary purposes. ii.-Mortgages by Local Authorities under Public Health Acts. By the Public Health Act, 1875, s. 233, any local authority may, with the sanction of the Local Government Board, for the purpose of defraying any costs, charges, and expenses incurred or to be incurred by them in the execution of the sanitary Acts, or of that Act, or for the purpose of discharging any loans contracted under the Sanitary Acts, or that Act, borrow or reborrow and take up at interest any sums of money necessary for defraying any such costs, charges, and expenses, or for discharging any such loans as aforesaid (m). "Local authority," for the purposes of this Act, means urban and rural sanitary authorities (n). A local authority cannot borrow without the previous sanction (g) Preston v. Corp. of Great Yar- (h) Fletcher v. Gibbon, 23 Beav. 212. (k) Re Derby Municipal Estates, 3 C. D. 289. (2) 8 & 9 Vict. c. 18. (m) 38 & 39 Vict. c. 55. (n) Ibid. s. 4. of the Local Government Board (o), nor except for a purpose Chap. XXV. which falls within the Act (p). The Act contains regulations as to the exercising of borrowing powers, and the form, register, and transfer of mortgages and rentcharges (1). Under sects. 4 and 257 the payments for sewerage are a charge on the whole premises, and on every owner in proportion to his interest (r). (ii.) providing hospitals, &c. By the Public Health (London) Act, 1891 (s), sanitary Purpose of authorities in the city of London and the metropolitan area are empowered to borrow, with the like sanction, for the provision of hospitals and mortuaries, and the purposes of epidemic regulations, also for the purpose of providing lavatories, &c. The exercise of borrowing powers by local authorities generally Regulations is governed by the Local Loans Act, 1875 (t), which contains as to borrowing powers. regulations as to issue of debentures, debenture stock, and annuity certificates, and provisions as to priority of loans, remedies for non-payment of moneys lent, the discharge of loans within a prescribed period either by annual appropriation or by means of a sinking fund, and other matters relating to loans contracted by such authorities. Local authorities may borrow, or reborrow to pay off existing loans, in manner prescribed by this Act, notwithstanding any provisions in any other Act previously passed. Commis A long series of statutes, commencing with 57 Geo. III. c. 34, Advances by and by which the Commissioners of the Treasury were autho- Local Loans rized to make advances of public money for various useful sioners. public works and purposes, taking securities for the repayment thereof upon the works, and the tolls, and other proceeds derived therefrom, has been repealed by the Public Works Loans Act, 1875 (u), by which the Public Works Loan Commissioners have power to make loans for any of the works mentioned in the first schedule to the Act to any person having statutory or other power to borrow for such purpose. (0) Re Sheffield Bldg. Soc., 21 Q. B. D. 301. (p) 10 App. Ca. 354. (g) 38 & 39 Vict. c. 55, ss. 234 241. (r) Birmingham Corp. v. Baker, 17 Ch. D. 782. (8) 54 & 55 Vict. c. 76, s. 105. (t) 38 & 39 Vict. c. 83. (u) 38 & 39 Vict. c. 89. VOL. I.-C. H H Chap. XXV. (iii.) Power for commissioners for public undertakings to borrow on mortgage of rates, &c. iii. Mortgages by Commissioners for Public Undertakings.— By the Commissioners Clauses Acts, 1847 (r), for consolidating Acts relating to bodies of commissioners appointed for carrying on undertakings of a public nature, a form is provided for mortgages (which must be by deed) to be made by such commissioners, of the rates or other property under that or any special Act. And all mortgages charged on the same rates, or property, are to be paid pro ratâ without priority, and any transfer of such mortgage must be made by deed, and a register is to be kept by the commissioners of the mortgages and transfers; and after registration the transferee is to be entitled to the full benefit of the original mortgage. And if no time is fixed by the mortgage deed for payment of the debt, then, after twelve months, either party may give six months' notice to terminate the mortgage. And provision is made for forming Provision for a sinking fund out of the rates mortgaged. And in default in payment of the principal for six months, or of interest for thirty days, and demand in writing made, the mortgagee may, if authorized by the special Act to enforce payment by a receiver, apply to two justices, or in Scotland to the sheriff, for the appointment of a receiver, whose office shall cease when principal, interest, and costs shall have been received by him. receiver. Power to borrow for providing prisons. Power of justices to borrow. iv.-Mortgages by Prison Authorities.-Prison authorities had power under the statutes 5 Geo. IV. c. 12, s. 10; 5 & 6 Vict. c. 98, ss. 3, 5, and 10; 11 & 12 Vict. c. 39, and the Prisons Act, 1865 (y), to borrow money on mortgage of the rates for the purposes of altering, rebuilding existing prisons, and erecting new prisons. These powers were, by the Prisons Act, 1877 (z), explained by the Prisons Act, 1884 (a), transferred to, and vested in, the Secretary of State. The 46th section of the Act of 1877 gives to prison authorities new borrowing powers for the limited purposes mentioned in sects. 17 and 34 of the Act. v.-Mortgages for Repair of Bridges.-By the statute 4 & 5 Vict. c. 49, justices at sessions may borrow money for the repair of bridges, on the county rates, and may charge the rates with interest on the money borrowed, and such further sum as shall (x) 10 Vict. c. 16. (y) 28 & 29 Vict. c. 126, ss. 27-2. (z) 40 & 41 Vict. c. 21. (a) 47 & 48 Vict. c. 51. (v.) insure repayment thereof in fourteen years. This Act gives, in Chap. XXV. the schedule thereto, a form of mortgage to be used as security for such loans. And by the statute 43 & 44 Vict. c. 5 (6), money may be borrowed by the county authority under the Highways and Locomotive Amendment Act, 1878 (c), for the erection of county bridges. These powers are, by the Local Government Act, 1888 (d), Transfer of sect. 3, transferred to the councils of each county. powers to county councils. borrow. vi.-Mortgages for Purposes of Lunatic Asylums.-By the Power of Lunatic Asylums Act, 1853 (e), repealing (f) certain earlier justices to statutes (g) without prejudice to any act done or contract made thereunder, power was conferred upon the justices of every county in general or quarter sessions assembled, or the major part (not being less than five) of them, and upon the council of every borough, to borrow and take up on mortgage of the county or borough rates any sums of money required for the payment of the moneys, costs, and expenses payable for any of the purposes of that Act or of the said repealed Acts. The same Act provided a form of mortgage, and contained provisions as to payment of interest upon, and as to the repayment of, the principal sums borrowed (h). The above powers of borrowing were, by the Local Transfer of Government Act, 1888 (i), transferred to the council of each powers to county. By the Lunacy Act, 1890 (k), the Act of 1853, and several amending Acts not material to the present purpose, were repealed, and by sect. 274 of the repealing Act it is enacted as follows: "(1.) For the purpose of paying any money payable under this Act, or for repaying any moneys borrowed under this Act or any former Act, authorizing borrowing for purposes of asylum accommodation, the local authority may with the consent of the Local Government Board, and subject to the provisions of the Local Government Act, 1888, and the Municipal Corporations Act, 1882, according as the same respectively are applicable to the local authority, borrow on the security of the county or borough fund, and of any revenue county councils. |