1827. FAWCETT บ. FOULIS. four days, next after such distress, by you taken, the said sum, together with the reasonable charges of taking and keeping the same, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and out of the money arising by such sale that you do pay the sum of one pound to the surveyors of the highways for the parish of Arncliffe, where the said neglect or default happened, to be employed towards the repairs of the said highways, returning the overplus, on demand, to him the said John Fawcett, the reasonable charges of taking, keeping, and selling the said distress being first deducted; and if sufficient distress cannot be found of the goods and chattels of the said John Fawcett, whereon to levy the said sum of one pound, that then you certify the same to us, together with this warrant. Given under our hands and seals this 9th day of December, 1826. (Signed), WILLIAM FOULIS. It was admitted, that previously to the issuing of this warrant, the plaintiff had been convicted under the 13 Geo. 3, c. 78, and that proper notices of action under 24 Geo. 2, c. 44, had been given, and that the action had been commenced in due time. That the plaintiff, on the 8th September, 1826, was served with such notice from the surveyor of the highways, as stated in the warrant of distress, and that the plaintiff did not perform such statute duty, or compound for the same, pursuant to the said notice. That the plaintiff occupied a messuage, farm and lands, in the said parish of Arncliffe, of the annual value of 2007., and kept and employed thereon such team, as in the said notice mentioned; and that the work required of the plaintiff was not more than his just proportion, if he was liable to work at all. That plaintiff was afterwards summoned to appear before defendants, to answer for his disobedience to such notice; and that plaintiff did accordingly appear before defendants, and was by them convicted in four several penalties of 5s. each for such disobedience. That defendants had full power and authority, under and by virtue of the said statute, to convict plaintiff in the several and respective penalties aforesaid, for the several and respective offences with which he stood charged before them; and that the same are the proper penalties to be imposed for such offences, if plaintiff Iwas liable to be convicted at all. That an order under the hands and seals of defendants for the payment thereof, was issued and served upon plaintiff six days and upwards before the date and issuing forth of the said warrant. That the said distress was made within the parish of A. aforesaid, and was not excessive. Cross, Serjeant, for the defendants, objected that the conviction being unappealed against, no action lay against the justices; and the learned Judge being of that opinion the plaintiff was nonsuited, with leave to move to set aside the nonsuit and enter a verdict for him with 1s. damages. Brougham now moved accordingly. The question in the cause was, whether Arncliffe Hamlet was liable to statute labor for Ingleby roads, and whether the distress was lawful, being taken on the ground of a failure on the part of the plaintiff to send a wain and men to do statute labor for four days. The conviction was bad in law. The conviction was admitted. [Bayley J. It was produced by my direction]. The objection was plain upon the Highway Act, 13 Geo. (a) Which enacts, that "the said surveyor to be appointed as aforesaid, together with the inhabitants and occupiers of lands, tenements, woods, tithes, and hereditaments within each parish, township, or place, shall, at proper seasons in every year, use their endeavours for the repair of the highways, 3, c. 78, ss. 34 (a), and and shall be chargeable thereunto 1827. FAWCETT บ. FOULIS. 1827. FAWCETT v. FOULIS. in the parish, &c., where he resides, and shall six days in every year (if so many days shall be found necessary), to be computed from Michaelmas to Michaelmas, send on every day and at every place to be appointed by the surveyor for the amending the highways in such parish, &c., one wain, cart, or carriage, furnished after the custom of the country with oxen, horses, or other cattle, and all other necessaries fit to carry things for that purpose, and also two able men with such cart, &c.; which duty, so performed, shall excuse every such person from his duty in such parish, &c., in respect of all lands, &c., not exceeding the annual value of 50l., which he shall occupy therein; and every person keeping such team, draught, or plough, and occupying in the same parish, &c., lands, &c., of the yearly value of 501. over and beyond the said yearly value of 50l., in respect whereof such team-duty shall be performed, and every such person occupying lands, of the yearly value of 50l., in any other parish, &c., besides that wherein he resides, and every other person not keeping a team, draught, or plough, but occupying lands, &c., of the yearly value of 50l., in any parish, &c., shall, in like manner, respectively, and for the same number of days, find and send one wain, cart, or carriage, furnished with not less than three horses or four oxen, and one horse or two oxen, and two horses and two able men, to each wain, cart, or carriage, and in like manner for every 50l. per annum, respectively, which every such person shall further occupy in any such parish, &c., respectively, such wains, carts, or carriages to be employed by the surveyor in the repairing and amending the highways within the parish, &c., where such lands, &c. shall respectively lie; and every person who shall not keep a team, draught, or plough, but shall occupy lands, &c., under the yearly value of 50%. in the parish, &c., where he resides, or in any other parish, &c.; and every person keeping a team, draught, or plough,and occupying lands, &c., under the yearly value of 50l. in any other parish, &c., where he resides, shall respectively contribute to the repair of highways, and pay to the surveyor of such parish, &c., respectively, in lieu of such duty, the sums following. (Then follows, the enumeration). Which said several sums shall be considered as compositions, and shall be paid to the surveyor of the parish, &c., in which they are charged, for the use of the highways therein, at the time such compositions are to be paid under the authority of this act, or within ten days after, or in default of such payments such money shall be levied by distress and sale of the goods and chattels of the person or persons refusing to pay the same, in such manner as the forfeitures for the neglect in performing the statute duty are hereby authorised to be levied and raised. Provided, that no person keeping such team, draught, or plough, and performing duty with the same as aforesaid, in the parish, &c., where he resides, and not occupying lands, &c., within the same, of the yearly value of 30l., shall be obliged to send more than one labourer with such team, draught, or plough." It 37 (a). The conviction states, that the plaintiff was required to send one wain, cart, or carriage, with proper tools, to attend, or to compound for the same two days before. The order is in the alternative. The conviction is not so. states, that the plaintiff neglected to perform statute duty. They were entitled to convict only for refusing to do both. Secondly, the conviction does not set forth how the plaintiff was liable. It should have stated, that he kept a wain or tumbrel, and three horses. If he keeps no cart, he is to pay money only. It is a mistake to say, he was liable to pay, or to do work according to what he kept. (a)" Every such surveyor shall, from time to time, give to, or cause to be left at the house, or usual place of abode, of every person or persons so liable to perform such duty, or labour, as in this act directed, four days' notice at the least, of the day, hour, and place, upon which each of the said day's duty shall be required to be performed, and every person or persons making default in finding and sending such wain, cart, or carriage, furnished as aforesaid, and such able men with the same as herein required, or in performing the said duty at the time and place, and in the manner by this act directed, shall, for every such default or neglect in sending such wain, &c., with such men as aforesaid, forfeit the sum of 10%., and for every default in sending every cart with one horse and one man 3s., and for not sending every cart with two horses and one man 5s., and every person or persons making default in sending any such labourer, and every person making default in performing such labour, at the time and place, and in the manner directed by this act, or in paying such composition money for the same, as hereinafter 1827. FAWCETT บ. FOULIS. 1827. FAWCETT บ. FOULIS. The statute does not say, that a person keeping, &c., shall furnish tools; but that the wain, cart, or carriage, shall be furnished, according to the custom of the country. The surveyor is to furnish tools. There should have been a 34 GB. c. 14/2- finding by the trustees, that the work was necessary. [Lord Tenterden, C. J. That is antecedent to the surveyor's application]. The 38th section (a) says, "that parties may compound," &c. The first objection is, that the warrant does not set forth that the defendant was liable. Occupying lands constitutes no liability. Secondly, non constat, the defendant had not redeemed himself from any liability to perform the statute duty by payments. Thirdly, four offences are here included in one conviction. The justices cannot, by a mere statement, give themselves jurisdiction. [Bayley, J. Of that there is no doubt. You might have pleaded before the magistrates that they had no jurisdiction]. (a) "Any person or persons liable to perform the said duty by sending one or more team or teams, draught or draughts, plough or ploughs, with men, horses or oxen, in manner aforesaid, shall and may compound for the same, if he, she, or they, shall think fit, by paying to the said surveyor, at the time, and in the manner hereinafter mentioned, such sum or sums of money, as the justices of the peace, for the limit wherein such parish shall be, or the major part of them, at their said special sessions, to be held in the first week after Michaelmas quarter sessions in every year, shall adjudge and declare to be reasonable, not exceeding six shillings, nor less than three shillings, for each team, &c., for each day, and in default of their adjudging or declaring the same, the sum of 4s. 6d. for and in lieu of every such day's duty for each team, draught, or plough; and for every cart and one horse, or beast of draught, 2s., and for every cart with two horses or beasts of draught, 3s., for and in lieu of every day's duty; and every inhabitant liable to perform such duty or labour as aforesaid, and not chargeable in any other respect as aforesaid, shall and may compound for the same, if he, she, or they shall think fit, by paying to the surveyor the sum of fourpence, for and in lieu of every such day's duty or labour respectively, at the time, and in the manner hereinafter directed, for the payment of the composition money." The provisions of this section. are modified by 34 Geo. 3, c. 74 ; 44 Geo. 3, c. 5; and 54 Geo. 3, c. 109; but it does not appear, that the alteration introduced by these statutes, would have materially affected the argument. |