Sect. 62 (1), to agreements for the adjustment of property, etc., when that is necessary under this Act.

c. 18.

NOTE.

It is not quite clear that a mere transfer of rateable value from one authority to another renders an adjustment necessary. The Act contains no provision applicable to such a transfer similar to that contained in s. 32 (3), ante, p. 69.

But as what matters require adjustment where local areas have been altered under this Act or the Local Government Act, 1894, see Re Rochdale Union and Haslingden Union, Times, May 21st, 1898.

In a case stated under s. 29, ante, the court has no jurisdiction to decide questions of adjustment of liabilities under this section. Re Salop County Council, 65 L. T. (N.s.) 416.

(2.) In default of an agreement as to any matter requiring adjustment for the purpose of this Act, or any matter which, in case of difference, is to be referred to arbitration, then, if no other mode of making such adjustment or determining such difference is provided by this Act, such adjustment or difference may be made or determined by an arbitrator appointed by the parties, or in case of difference as to the appointment, appointed by the Local Government Board.

Where an order of a county council has not in fact provided for adjustment, although such order might have done so under s. 59 (4) (e), ante, an arbitrator may be appointed under this sub-section to make the adjustment. Sowerby Urban District Council v. Mytholmroyd Urban District Council, 74 L. T. (N.S.) 313; 12 T. L. R. 300.

(3.) An arbitrator appointed under this Act shall be deemed to 8 & 9 Vict. be an arbitrator within the meaning of the Lands Clauses Consolidation Act, 1845, and the Acts amending the same, and the provisions of those Acts with respect to an arbitration shall apply accordingly; and, further, the arbitrator may state a special case, and notwithstanding anything in the said Acts, shall determine the amount of the costs, and shall have power to disallow as costs in the arbitration the costs of any witness whom he considers to have been called unnecessarily, and any other costs which he considers to have been incurred unnecessarily.

The Lands Clauses Acts, in so far as they relate to arbitration, are 8 Vict. c. 18, ss. 23, 25—37; 32 & 33 Vict. c. 18; 46 Vict. c. 15. These Acts will be found in the Appendix to Lumley's Public Health. An arbitrator under this Act will, however, have the further powers above mentioned, viz., to state a case, to determine and disallow costs. By the text he is required, and not merely empowered, to decide as to the costs.

(4.) Any award or order made by the Commissioners or any arbitrator under this Act may provide for any matter for which an agreement might have provided.

As to what might have been provided for by agreement, see sub-s. (1), supra. (5.) Any sum required to be paid for the purpose of adjustment, or of any award or order made by the Commissioners, or an arbitrator under this Act, may be paid out of the county or borough fund or out of such other special fund as the council, with the

approval of the Commissioners under this Act or of the Local Sect. 62 (5). Government Board, may direct.

(6.) The payment of any capital sum required to be paid for the purposes of the adjustment, or of an agreement under this Act, or of any award or order made upon any arbitration under this Act, shall be a purpose for which a council may borrow under this Act, or in the case of a borough council, under the Municipal Corporations Act, 1882, or any local Act, and such sum may be borrowed on the security of all or any of the funds, rates, and revenues of the council, and either by the creation of stock or in any other manner in which they are for the time being authorized to borrow, and such sum may be borrowed without the consent of the Treasury, or any other authority, so that it be repaid within such period as the Local Government Board may sanction, by such method as is mentioned in Part Four of this Act for paying off a loan, or, if the sum is raised by stock under a local Act, by such method as is directed by that Act.

The reference in the text to borrowing "under this Act," raises a doubt whether this borrowing power extends to district councils as well as to county councils, but having regard to the section as a whole it is probable that district conncils are empowered by this clause to borrow for the purpose of settling claims for adjustment. The borrowing will be in accordance with the provisions of the Public Health Act, 1875, as to borrowing by sanitary authorities; the repayment of the loan must be made in accordance with the provisions of s. 69, post, as to repayment.

The power of a county council to borrow under this Act depends upon s. 69, post.

As to borrowing by a borough council under the Municipal Corporations Act, 1882, see s. 72, post, which substitutes the Local Government Board for the Treasury. No consent will be required for borrowing for the purpose above mentioned if the loan is made repayable within a period prescribed by the Local Government Board, by a method mentioned in s. 69, post, or in manner prescribed by a local Act.

(7.) Any capital sum paid to any council for the purpose of any adjustment, or in pursuance of any order or award of an arbitrator under this Act, shall be treated as capital, and applied, with the sanction of the Local Government Board, either in the repayment of debt, or for any other purpose for which capital money may be applied.

The sanction of the Local Government Board will be necessary for any application of this capital sum. See s. 69, sub-s. (3), post.

Government

63. Where the local Government Board are required in pur- Arbitration suance of this Act to decide any difference or other matter referred by Local to arbitration in pursuance of this Act, the provisions of the Board. Regulation of Railways Act, 1868, respecting arbitrations by the 31 & 32 Vict. Board of Trade, and the enactments amending those provisions,

c. 119.

Sect. 63. shall apply as if they were herein re-enacted, and in terms made applicable to the Local Government Board and the decision of differences and matters under this Act.

It is provided by the Local Government (Determination of Differences) Act, 1896 (59 Vict. c. 9), s. 1, post, that the Local Government Act, 1888, shall have effect as if in s. 63 of that Act for the words "are required in pursuance of this Act to decide" were inserted the words "determine as arbitrators."

This enactment appears to have been rendered necessary by the decision in Kent County Council v. Sandgate Local Bourd, [1895] 2 Q. B. 43; 64 L. J. Q. B. 502; 72 L. T. (N.S.) 725; 43 W. R. 601; 59 J. P. 456; 11 T. L. R. 421. See the note to s. 11, sub-s. (3), ante.

The provisions of the Regulation of Railways Act, 1868 (31 & 32 Vict. c. 119), here referred to are contained in ss. 30-32 of that Act. Under these, as applied by the above section, the Local Government Board may appoint an arbitrator, whose award or decision shall be that of the Board. The Board may fix the remuneration of the arbitrator.

Section 32 of the Act of 1868 incorporates the Railway Companies Arbitration Act, 1859, ss. 18-29, the effect of which is shortly as follows :

Section 18 empowers the arbitrator to call for books and documents and administer oaths; s. 19 gives him discretion as to the manner of proceeding with the arbitration; s. 20 enables him to proceed in the absence of parties; s. 21 enables him to make several awards each on part of the matters referred; s. 22 makes the award conclusive; s. 23 gives the arbitrator power to extend the time for making an award; s. 24 prevents the setting aside of an award for irregularity; s. 25 provides that parties shall obey awards; s. 26 that all courts shall give effect to awards; s. 27, that costs shall be in the discretion of the arbitrator; and s. 28, that in absence of order costs are to be borne by parties equally; s. 29, that submission may be made a rule of court.

Transfer of county

property and liabilities.

PART IV.
FINANCE.

Property Funds and Costs of County Council.

64.-(1.) On and after the appointed day all property of the quarter sessions of a county, or held by the clerk of the peace, or any justice or justices of a county, or treasurer, or commissioners, or otherwise for any public uses and purposes of a county, or any division thereof, shall pass to and vest in and be held in trust for the council of the county, subject to all debts and liabilities affecting it, and shall be held by the county council for the same estate, interest, and purposes, and subject to the same covenants, conditions, and restrictions, for and subject to which that property is or would have been held if this Act had not passed so far as those purposes are not modified by this Act. Provided that— (a.) The existing records of or in the custody of the court of quarter sessions shall, subject to any order of that court, remain in the same custody in which they would have been if this Act had not passed; and

(b.) Where any property belongs to a charity, nothing in this Sect. 64 (1). Act shall affect the trust of such charity, and until otherwise directed by the Charity Commissioners for England and Wales, the trustees or managers of the charity shall be appointed in like manner as if this Act had not passed; and

(c.) The justices of any county may retain any pictures, chattels, or property on the ground that the same have been presented to them or purchased out of their own funds or otherwise belong to them, and are not held for public purposes of the county, and any difference arising between the county council and the justices with respect to any such retention shall be referred to and determined by the Commissioners under this Act.

For the definition of the expressions "property," "liabilities," "division," etc., see s. 100, post.

As to the "appointed day," see s. 109, post.

The records of the county are in the custody of the custos rotulorum or of the clerk of the peace, who was formerly appointed by him. See now as to the appointment of the clerk of the peace and his duties as to the custody of

documents, s. 83, post.

The saving as to pictures, chattels, etc., is intended to preserve to the justices property which may have been presented to them or are not held for public purposes.

The justices of a county, as the local authority for the county, neglected between the years 1869 and 1878 to recoup to the plaintiffs, as the local authority for a borough within the county, the proportionate amount contributed by the borough to the expenses incurred by the local authority of the county, in carrying out the provisions of the Contagious Diseases (Animals) Act, 1869, which they were bound to repay under s. 97 of that Act. After the passing of the Local Government Act, 1888, the plaintiffs sued the defendants, as successors of the local authority for the county, to recover the sums which should have been recouped. Held, that the only remedy against the justices would have been by mandamus to them to pay the amounts claimed out of moneys in their hands, or to levy a rate for the purpose; and that, as the Local Government Act, 1888, vests in the county council the property of the justices for the county subject to the same conditions and restrictions as if the Act had not been passed, the defendants were not liable in the action. Held, also, that if any action would lie it would be an action on the case and not an action for debt on a statute, and therefore the Statute of Limitations was a bar to the claim. Salford (Mayor, etc., of) v. Lancashire County Council, 25 Q. B. D. 384; 59 L. J. Q. B. 576; 63 L. T. (N.s.) 409; 38 W. R. 661; 54 J. P. 328; 6 T. L. R. 362.

In

pursuance of a resolution passed by the watch committee of a borough incorporated under the Municipal Corporations Act, 1835, the justices of the county provided police for the borough from 1869 to 1887. The expenses of such police for each half year were provided for in advance by a rate levied on the borough, and the sum so raised was, together with the sums collected from the other townships of the union in which the borough was situate, paid to the county treasurer by the guardians of the union in obedience to a precept addressed to them by the county justices. By the Municipal Corporations

NOTE.

Sect. 64 (1). Act, 1835, the watch committee were required to appoint police for the borough, and on June 30th, 1887, they withdrew the county police and appointed borough constables. At this date the county justices had in their hands a sum arising from a rate levied on the borough applicable for the future expenses of the police in the division in which the borough was situate, but there was no ascertained sum applicable exclusively to the police provided for the borough. In an action by the mayor and corporation (suing on behalf of all the ratepayers of the borough) and the guardians of the union against the council of the county, as successors of the county justices, to recover the amount overpaid by the borough :-Held, first, that the plaintiffs were not entitled to represent the ratepayers of the borough; secondly, that the remedy against the defendants (if any) was by mandamus; thirdly, on the merits that the money was not recoverable on the ground of extortion colore officii, as it was paid under a voluntary arrangement; nor on the ground of a partial failure of consideration, as the proportion overpaid was not properly ascertainable. Bootle (Mayor, etc., of ) v. Lancashire County Council, 60 L. J. Q. B. 323; 7 T. L. R. 179.

The committee of visitors of a lunatic asylum which was built and managed under the provisions of the Lunatic Asylums Act, 1853 (now repealed), had in their hands a sum of money, being the excess of receipts over the cost incurred in maintaining lunatics committed to them. Three classes of lunatics were committed to the asylum, namely, lunatics from unions within the county, lunatics from unions in other counties, and private patients. The questions to be decided were, whether the committee of visitors (the plaintiffs), or the county council (the defendants), who, under the Local Governinent Act, represented the interests of the quarter sessions, should have the control of the above-mentioned sum of money, and whether any part of this sum should be credited to the unions, the other defendants in the action, from whose payments it had partly arisen :-Held, that the guardians of several unions had no claim to the funds, but that as between the committee of visitors and the county council, whose predecessors had provided the money to build the asylum, the county council were entitled. Proctor v. Cheshire County Council, 56 J. P. 532.

By an agreement between a private owner of certain rooms and the clerk of the peace, as trustee for the justices in quarter sessions, the justices in quarter sessions were permitted to use the rooms for the purpose of transacting their duties in quarter sessions free of charge:-Held, that the use of the rooms by the county council, free of charge, was not transferred by s. 64 of the Local Government Act, 1888, to the county council. Montgomeryshire County Council v. Pryce-Jones, 57 J. P. 308; 8 T. L. R. 754.

(2.) On and after the appointed day all debts and liabilities of the quarter sessions, or of the clerk of the peace, or any justice or justices, or treasurer, or commissioners, incurred for county purposes, shall become debts and liabilities of the county council, and shall, subject to the provisions of this Act, be defrayed by them out of the like property and funds out of which they would have been defrayed if this Act had not passed.

(3.) The county council shall have full power to manage, alter, and enlarge, and, with the consent of the Local Government Board, to alienate any land or buildings transferred by this section, or otherwise vested in the council, but shall provide such accommoda