A.D. 1875.

Audit of ac

any disallowance or surcharge at an audit of the accounts of a Local Board, he will make a report thereon according to the Form IV. Instructional Letter, 20th February, 1872.

Burial Board accounts.-Besides the ordinary accounts of the Local Board and their officers, the auditor is required to audit the separate accounts of the Board when it is constituted a Burial Board for the district, according to the provisions of the 23 & 24 Vict. c. 64, s. 3.

Dwelling-house Improvement Fund accounts.-The auditor is also required to audit these accounts, when the local authority have put in force the Artizans' and Labourers' Dwellings Improvement Act, 1875, 38 & 39 Vict. c. 36, s. 23.

Recovery of certified sums. 7 & 8 Vict. c. 101, s. 32.-All moneys certified by a poor-law auditor to be due are recoverable as so certified from all or any of the persons making or authorizing the illegal payment, or otherwise answerable for such moneys, and are to be recovered on the application of the auditor or of any auditor subsequently appointed, or by any person for the time being entitled or authorized to receive the same, in the same manner as penalties and forfeitures may be recovered under the 4 & 5 Wm. IV. c. 76, s. 99, that is, by distress and sale of the goods and chattels of the person liable to pay the money certified to be due.

The certificate of the auditor that the money is due will be final, if it be not appealed against as in the case of a poor-law audit. See Reg. v. Finnis, 1 E. & F. 935; 33 L. T. 146; 28 L. J. M. C. 201; Reg. v. Brecknock JJ., 7 E. & B. 951; Reg. v. Linford, 7 E. & B. 950; Reg. v. Denbighshire JJ., 33 L. T. 145.

218. The accounts under this Act of every rural counts of rural authority shall be audited by the same persons and in every respect in the same manner as the accounts of guardians are audited under the Acts for the relief of the poor for the time being in force.

authority. P.H. 1872, s.

49.

The accounts of the overseers collecting or paying any money for the purposes of this Act shall be audited in the same manner as the accounts of overseers collecting or paying any money for the purposes of the Acts relating to the relief of the poor for the time being in force.

An auditor shall, with respect to the accounts audited under this section, have the like powers and be subject to the like obligations in every respect as in the case of an audit under the Acts relating to the relief of the poor, and any person aggrieved by the decision of the auditor shall have the like rights and remedies as in the case of such last-mentioned audit.

With reference to the 49th section of the Public Health Act, 1872, which was similar to the above section, the Local Government Board have stated that, "looking at the nature of the duties which the guardians acting as the rural sanitary authority will be required to discharge, and looking also at the provisions of the 17th section of the Act (which corresponded to sect. 229 of this Act, ante), which relate to the division of the expenditure into general and special expenses, and the mode in which the funds to meet those expenses shall be respectively raised, they are of opinion that the proceedings of the rural sanitary authority, whether the guardians are themselves acting in that capacity or have delegated their powers to a committee, should be recorded in a separate minute book, distinct from the ordinary minute book of the guardians; and that a separate ledger should also be kept, which should be confined

to the pecuniary transactions of the guardians or committee acting as the rural sanitary authority. In so far as it may be necessary in order to authorize the adoption of this course of proceeding, the Board hereby assent to a departure from the regulations contained in the General Order or any other orders of the Poor Law Board relating to accounts.

"Under the 12th section of the Act (now s. 190 of this Act) the treasurer of the guardians is to be the treasurer of the rural sanitary authority, and the Board think that he should keep an account of his receipts and payments in the latter capacity separate and distinct from the general account which he keeps as the treasurer of the guardians under the Consolidated Order. The Board request that the guardians will inform their treasurer accordingly and provide him with a proper book for the purpose. The Board are also of opinion that it will be convenient that the cheques drawn by the guardians in respect of their expenditure as a sanitary authority should be distinguished in some way from their other cheques.

"The accounts should be closed, as they will be audited, half-yearly, at the same time as the other accounts of the guardians." Circular Letter of Local Government Board, dated 16th September, 1872.

A.D. 1875.

attorney. P.H. 1872, s.

249. On the application of any local authority whose Taxation of bill accounts are required by this Act to be audited to the of solicitor or clerk of the peace of the county in which the district of such authority is wholly or in part situated, the said clerk 50. or his deputy shall tax any bill due to any solicitor or P.H. 1874, s. attorney in respect of legal business performed on behalf 39. of such authority; and the allowance of any sum on such taxation shall be primâ facie evidence of the reasonableness of the amount, but not of the legality of the charge.

The clerk of the peace shall be allowed for such taxation a remuneration after the rate to be fixed by the master of the Crown Office, and declared by an order of the Local Government Board.

If any such bill is not taxed by the clerk of the peace or some other duly authorized taxing officer before being presented to the auditors or auditor, the decision of the auditors or auditor upon the reasonableness and the legality of the charge shall be final.

of officers.

250. The accounts under this Act of officers or assistants Auditor to of any local authority who are required to receive moneys audit accounts or goods on behalf of such authority shall be audited by P.H. 1874, s. the auditors or auditor of the accounts of such authority, 38. with the same powers incidents and consequences as in the case of such last-mentioned accounts.

Annual Returns to Local Government Board.-Here may be conveniently introduced the provisions of the Act 23 & 24 Vict. c. 51, to provide for an annual return of rates, taxes, tolls, and dues levied for local purposes in England. It recites that whereas rates, taxes, tolls, and dues to a large amount are levied for purposes of local government and improvements in England, and it is proper that Parliament should be informed annually of all sums so levied, and the expenditure thereof, but in many cases no sufficient provision has been made for that purpose; and enacts that the clerk to any corporation, justices, Commissioners, district, or other Board, vestry, inspectors, trustees, or other body or persons authorized to levy or to order to be levied any of the following rates, taxes, tolls, or dues, sewers

A.D. 1875.

rates and "general sewers tax," and all rates, scots, and taxes levied by Courts or Commissioners of Sewers; whether levied under the Acts of the 3 & 4 Wm. IV. c. 22, and 4 & 5 Vict. c. 45; or under any other Act of Parliament, or by charter, usage, or custom; rates under the Act for the lighting and watching of parishes, 3 & 4 Wm. IV. c. 90; rates levied by Improvement Commissioners or other Commissioners, or by any trustees or corporation acting under any local Act for the paving, draining, cleansing, or watching, improvement or regulation of any town or district; and tolls and dues levied under the authority of Parliament in respect of markets, bridges, or harbours, or any other compulsory rates, taxes, tolls, or dues in England (other than such as are levied for the public revenue of the United Kingdom), shall make a return of the sums levied or received by or in respect of such rates, taxes, tolls, and dues, and of the expenditure thereof, to the Local Government Board in the month of June in every year; 23 & 24 Vict. c. 51, s. 1. The returns are to be made for the latest period of twelve months preceding the month of June in each year for which the accounts of the Board shall be made up, and shall show the amounts levied and expended respectively, with such other particulars and in such form as shall from time to time be ordered by the Local Government Board. 23 & 24 Vict. c. 51, s. 2.

Where no clerk is appointed or acting, the treasurer or other officer keeping the accounts of the receipts and expenditure of the Board, by whom any of the rates, tax s, tolls, or dues before mentioned are levied or ordered to be levied, shall make the return in relation thereto. 23 & 24 Vict. c. 51, s. 3.

Penalty for default.-Any clerk, treasurer, officer, or other person required to make such return who neglects so to do in the month of June in any year shall be liable to a penalty not exceeding £20 for every such offence, to be recoverable on summary conviction thereof before two justices. 23 & 24 Vict. c. 51, s. 4.

Abstracts of returns to be laid before Parliament.-The Local Government Board shall every year cause the returns transmitted to them under this Act to be abstracted, and the abstract thereof to be laid before both Houses of Parliament. 23 & 24 Vict. c. 51, s. 6.

In pursuance of the foregoing provisions, the Local Government Board require that a return of receipts and disbursements should be made to them in each year, in a form which will be annually supplied to the local authorities for that purpose.

Fraudulent accounts. Punishment. As regards any body corporate fraudulently appropriating property of the corporation, keeping fraudulent accounts, wilfully destroying books, &c., or publishing fraudulent statements with intent to deceive or defraud, see the provisions of the Act to consolidate and amend the Statute Law of England and Ireland relating to Larceny and other similar Offences, 24 & 25 Vict. c. 96, ss. 81, 82, 83, 84

By the Falsification of Accounts Act, 1875, sect. 1, If any clerk, officer, or servant, or any person employed or acting in the capacity of a clerk, officer, or servant, shall wilfully and with intent to defraud, destroy, alter, mutilate, or falsify any book, paper, writing, valuable security, or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or shall wilfully and with intent to defraud make or concur in making any false entry in, or omit or alter, or concur in omitting or altering, any material particular from or in any such book, or any document or account, then in every such case the person so offending shall be guilty of a misdemeanor, and be liable to be kept in penal servitude for a term not exceeding seven years, or to be imprisoned with or without hard labour for any term not exceeding two years. By sect. 2, It shall be sufficient in any indictment under this Act to allege a general intent to defraud, without naming any particular person intended to be defrauded; and by sect. 3, the Act is to be read as one with 24 & 25 Vict. c. 96; 38 Vict. c. 24.

A.D. 1875.

PART VII.

LEGAL PROCEEDINGS.

Prosecution of Offences and Recovery of Penalties, do.

251. All offences under this Act, and all penalties Summary proforfeitures costs and expenses under this Act directed to be ceedings for offences, penalrecovered in a summary manner, or the recovery of which ties, &c. is not otherwise provided for, may be prosecuted and .H., s. 129, recovered in manner directed by the Summary Jurisdic- &c. tion Acts before a court of summary jurisdiction. The court of summary jurisdiction, when hearing and determining an information or complaint under this Act, shall be constituted of two or more justices of the peace in petty sessions, sitting at a place appointed for holding petty sessions, or of some magistrate or officer for the time being empowered by law to do alone any act authorized to be done by more than one justice of the peace sitting at some court or other place appointed for the administration of justice.

Jurisdiction. If a statute refers to the justices of a division (see 11 & 12 Vict. c. 43, s. 1), any justice of the county has jurisdiction, for the word is directory, and not restrictive, Ashley's Case, 2 Salk. 280; Anon. 12 Mod. 546. By the Act for the Abolition of Imprisonment for Debt, "default in payment of any sum recoverable summarily before a justice or justices of the peace" is excepted from its provision. 32 & 33 Vict. c. 62, s. 4 (2`.

Recovery of damages, &c.-The expenses, &c., are to be recovered as damages by proceedings before the justices, therefore an action will not lie for their recovery. See Blackburn v. Parkinson, 28 L. J. M. C. 7; 5 Jur. (N. s.) 572; 32 L. T. 91. In Stevens v. Evans, 2 Burr. 1157, Dennison, J., laid it down as a rule that where a new statute prescribes a particular remedy, no other remedy can be taken; and the case of St. Pancras Vestry v. Batterbury, 2 C. B. (N. s.) 477; 26 L. J. C. P. 243; 3 Jur. (N. s.) 1106, shows that where a pecuniary obligation is created by a statute, and a remedy expressly given for enforcing it, that remedy must be adopted; so, two circumstances must concur to authorize the issuing of a mandamus, -a specific legal right, and the absence of an effectual remedy. Rex v. Nottingham Waterworks Company, 1 Nev. & P. 4810. Where a statute creates a new offence by prohibiting and making unaawful anything that was before lawful, and appoints a specific remedy against such new offence by a particular method of proceeding, that particular method of proceeding must be pursued and no other. Reg. v Lovibond, 24 L. T. (N. s.) 357; Reg. v. Wigg, Salk, 460. As bearing on the same point, see post, p. 281.

R

A.D. 1875.

General provisions as to

With regard to appeals to the Local Government Board against expenses which a Local Board may recover in a summary manner, see post, p. 253.

Commencement of proceedings.-In summary proceedings to enforce payment of money, it is necessary that they should be commenced within the time limited by the 11 & 12 Vict. c. 43, s. 11. In the year 1854 certain permanent improvements were completed by a Local Board of Health upon premises in a town within their jurisdiction. A receiver of the rents of these premises appointed by the Court of Chancery in 1853 and 1854 agreed with the Local Board that the expenses should be raised by mortgage, and notice of the same was given to the receiver, who paid £30 in part payment thereof. Afterwards, having ceased to be receiver of the rents, he refused to pay the balance, and a demand for payment having been made upon him in 1857, in December of that year he finally refused to pay. A complaint was then made to the justices by the Local Board on the 19th January, 1858, which was dismissed by the justices, and upon a case being stated under the 20 & 21 Vict. c. 43, s. 2, it was held that the matter of complaint arose when notice of the amount to be raised by mortgage was given to the receiver, and that the information ought therefore to have been laid within six months from that time under the 11 & 12 Vict. c. 43, s. 11. It was also held that the Local Board in agreeing to the mortgage had exercised their option, and could not afterwards proceed to recover the expenses by summary proceedings under the 11 & 12 Vict. c. 63, s. 129. Eddleston v. Francis, 3 L. T. (N. s.) 270; 7 C. B. (N. s.) 586.

252. Any complaint or information made or laid in pursuance of this Act shall be made or laid within six mouths summary pro- from the time when the matter of such complaint or ceedings. information respectively arose.

Restriction on recovery of penalties.

P.H., s. 133.

The description of any offence under this Act in the words of this Act shall be sufficient in law.

Any exception exemption proviso excuse or qualification, whether it does or does not accompany the description of the offence in this Act, may be proved by the defendant, but need not be specified or negatived in the information; and, if so specified or negatived, no proof in relation to the matters so specified or negatived shall be required on the part of the informant.

253. Proceedings for the recovery of any penalty under this Act shall not except as in this Act is expressly provided be had or taken by any person other than by a party aggrieved, or by the local authority of the district in which the offence is committed, without the consent in writing of the Attorney-General: Provided that such consent shall not be required to proceedings which are by the provisions of this Act relating to nuisances or offensive trades authorized to be taken by a local authority in respect of any act or default committed or taking place without their district, or in respect of any house, building, manufactory, or place situated without their district.

See the Introduction, ante, p. lxxxii.

It has been held that an information for violation of a bye-law, laid on behalf of the corporation who were the Local Board for the district, did