breach of contracts.

Estimates to

be made before commencing works.

As to contracts above

respect of any penalty incurred by reason of the nonperformance of any contract entered into as aforesaid, whether such penalty be mentioned in any such contract, or in any bond or otherwise, for such sums of money or other recompence as to such local board may seem proper :

Provided also, that before (a) contracting for the execution of any works under the provisions of this Act the said local board shall obtain from the surveyor an estimate in writing, as well of the probable expense of executing the work in a substantial matter as of the annual expense of repairing the same;

Also a report as to the most advantageous mode of contracting, that is to say, whether by contracting only for the execution of the work, or for executing and also maintaining the same in repair during a term of years or otherwise (b):

Provided also (c), that before any contract of the

(a) This proviso, however, is only directory, and the obtaining the estimate and report from the surveyor is not a condition precedent to the entering into the contract. Therefore the local board will be liable for a breach of the contract entered into for the performance of works though the estimate and report were not obtained. Howell v. Mayor, &c. of Worcester, 9 Exc. 457.

(b) Upon this proviso the Court of Queen's Bench decided, as between the board of health and their constituents, that "If the work may be both executed and repaired under the provisions of the Act there must be an estimate and report on the execution and the repair; but if the work may be only executed or only repaired according to the provisions of the Act, the estimate and report need not extend to a work not within the provisions of the Act, and not necessary for carrying it into execution. In case of a contract for repairing an existing road, an estimate and report relating to executing the work of making that road originally would be absurd, and equally so would be the estimate and report on repair where none can be done." Cunningham v. Local Board of Wolverhampton, 7 E. & B. 114.

(c) This proviso also seems to be directory only. This

1002.

value or amount of one hundred pounds or upwards the value of is entered into by the said local board ten days public notice at the least shall be given expressing the nature and purpose thereof, and inviting tenders for the execution of the same;

And the said local board shall require and take sufficient security for the due performance of the

same.

RATES.

trict rate.

[LXXXVI. ** And be it enacted (d), that when- Special disever any expenses are incurred or to be incurred by the local board of health in making, enlarging, altering, arching over, covering, or enclosing any sewer vested or to be vested in them by this Act, or purchased or acquired by them by virtue thereof, or in or about any other works, matters, and things of a permanent nature, and executed or done for the benefit of any district or part of a district, the said local board shall make and levy, in respect of the premises situate in the district or part of a district for the benefit of which the expenses are incurred or to be incurred, a rate or rates to be called special district rates, of such amount as will be sufficient to discharge the amount of such expenses, and interest thereon, within such period, not exceeding

appears to be the distinction to be drawn from the cases as to the different parts of the clause. Some of the requisites specify the form, manner, and contents of the contract itself. Both parties can and ought to be cognizant thereof, and consequently each must sustain the result of a failure to comply therewith. The other requisites affect only one of the parties, and consequently the neglect or failure thereof will not prejudice the other party in respect of his claim arising out of the engagement entered into under this clause.

(d) Repealed by 21 & 22 Vict. c. 98, s. 54, which abolishes entirely the power of making a special district rate in future. See the note thereon.

District fund

account to be kept.

General district rate.

thirty years, as the said local board shall in each case determine (e):

Provided always, with respect to the cost of making any such new sewer, that if it appear to the said local board that any premises were sufficiently drained before the new sewer was made they shall deduct from the amount of rates otherwise chargeable in respect of such premises such a sum and for such time as the said local board may, under all the circumstances of the case, deem to be just (f). **]

LXXXVII. And be it enacted, that the treasurer shall keep a separate account, to be called "The District Fund Account," and the monies carried to such account under the directions of this Act shall be applied by the local board of health in defraying such of the expenses incurred or to be incurred by the said local board in carrying this Act into execution, and not otherwise expressly provided for, as they may think proper;

And the said local board (g) shall from time to time, when and as often as occasion may require,

(e) In Dorling v. Epsom Board of Health, 5 E. & B. 471, the Court of Queen's Bench held a special district rate to be valid which was imposed upon the whole district for works of a permanent nature from which a part of the district could derive no direct or immmediate benefit.

A question has been raised as to whether the local board could make a rate for the whole sum payable by three annual instalments, or whether they were bound to make one rate for the whole to be paid in one year, or to make successive rates in successive years. The Court of Queen's Bench were so far of opinion that the first course was correct, that they issued a rule to the justices to enforce a rate so made. Ex parte Grumpsall Local Board, 20 J. P. 771.

(f) A similar proviso is contained in 21 & 22 Vict. c. 98,

s. 29.

(g) Though it is not desirable that a local board should act in levying rates if not duly constituted, it is nevertheless very

make and levy, in addition to any other rate (h), a rate or rates to be called "general district rates," for defraying such expenses as are charged upon that rate by this Act, and such other expenses of executing this Act in any district as are not provided for by any other rate (i), or defrayed out of the said district fund account.

Property as

[LXXXVIII. ** And be it enacted (k), that the said special and general district rates shall be made sessable to and levied upon the occupier (except in the cases herein-after provided) of all such kinds of property

doubtful whether the legality of the election of the board of management can be tried in resisting a district rate levied by them. Howitt v. Manfull, 6 A. & E. 736. In that case the court had required the justices to grant their distress warrant, (see 20 J. P. 772,) upon which distress the action of replevin was brought. This point was not absolutely decided, because the board held that the local board was legally constituted. It was held that the validity of the election of members of a board of guardians could not be questioned upon a mandamus to enforce a contribution for the relief of the poor. Q. v. Guardians of St. Andrew's, Holborn, 10 A. & E. 736.

(h) The rates which can be now levied by the local board are, the general district rate, the water rate, and the private improvement rate, and perhaps, in certain special cases, a burial rate.

(1) A question arose upon these words in respect of the rate to be levied for the repairs of the highways, and the cases of Reg. v. Worthing Road Trustees, 3 E. & B. 989; Elmer v. Norwich Local Board of Health, ib. 517; Hanson v. Epsom Local Board of Health, 5 E. & B. 599; Moseley v. Ely Local Board of Health, 6 E. & B. 518; Barber v. Jessop, 1 H. & N. 578; and Reg. v. Taff Vale Railway Company, 22 J. P. 21, were decided upon the subject. The decision at first was that where the district was coterminous with the parish, a general highway rate might be laid, though where it comprised a part of a parish only, or several parishes, a district rate, and not a highway rate, was to be levied; but ultimately the courts decided that the local board of health could not levy a highway rate. See, however, the note on sect. 117, post. (k) Repealed by 21 & 22 Vict. c. 98, s. 55, but reenacted with slight modifications.

general and district rates.

If in any district there

be no rate

the poor,

made in

scribed by

c. 96.

as by the laws in force for the time being are or may be assessable to any rate for the relief of the poor, and shall be assessed upon the full net annual value of such property ascertained by the rate (if any) for the relief of the poor made next before the making of the respective assessments under this Act;

And for the purpose of making any such assessment the local board of health, or any person appointed by them so to do, may from time to time, at all reasonable times, inspect, take copies of or make extracts from, any rate for the relief of the poor within their district, or any assessments by which the same are made

;

And whosoever, having the custody of such lastmentioned rate or assessment, refuses to permit such inspection, or the taking of any such copy or extract, shall for every such offence be liable to a penalty not exceeding five pounds:

Provided always, that if in any district or part of a district there be no rate for the relief of the poor, for relief of the said special and general district rates shall be rates shall be made upon an estimate of the net annual value of manner pre- the several premises liable thereto in such district 6 & 7 Will. 4, or part of a district, by a fit person appointed by the local board of health in that behalf, and such estitimate shall be made, as near as circumstances will permit, in the manner prescribed by an Act passed in the seventh year of the reign of King William the Fourth, intituled "An Act to regulate Parochial Assessments," or any other Act for the time being in force for regulating parochial assessments:

Provided also, that the occupier of any land (b) used as arable, meadow, or pasture ground only, or

(6) Land occupied by a booth, used at the time of races.