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1862. Ex parte

MAY.

the Quarter Sessions on appeal. By the first Act a right is given to appeal against the rate, and by the subsequent Act it is made enforceable in all respects like a poor rate. The only inquiry by the magistrates is to be, whether the person summoned “is chargeable with or liable to pay the rate :" matters which do not go to the question of its validity. The objection in the present case goes, not to the liability of the applicant to pay, but to the validity of the rate. The magistrates were therefore right in refusing to entertain the objection, which raised matter for the jurisdiction of the Quarter Sessions on appeal.

MPTO

CROMPTON J. I also am of opinion that we ought not to interfere under stat. 20 & 21 Vict. c. 43. The rate in question is good on the face of it; by the first local Act the Quarter Sessions are to have the jurisdiction of determining any objection to its validity or formality. Mr. Foster must go the length of saying that even in the event of the Quarter Sessions on appeal having decided in favour of the rate, two justices could afterwards adjudicate on its validity. If the justices thought that the rate was a nullity, they might have declined to issue their warrant, and the parties seeking to enforce payment of the rate might have applied to this Court for a rule on the justices to issue it. Also, by sect. 5 of stat. 20 & 21 Vict. c. 43., it is discretionary with the Court to order a case to be stated.

BLACKBURN J. Stat. 20 & 21 Vict. c. 43. s. 2. gives an appeal from the determination of the justices in cases which they “ have power to determine in a sumVOL. 11.

2 P

B. & s.

1862.

Ex parte
Mar.

mary way.” The first complaint of the applicant was
that the justices ought to have heard the evidence in
support of the objection that the rate was a nullity or
invalid, and his second that on their refusal to do so
they ought to have stated a case for the opinion of this
Court. But the proceeding under the local Act was
not a matter which, under stat. 20 & 21 Vict. c. 43. s. 2.,
they had power to determine in a summary way. Sect. 51
of the first local Act gives an appeal against any rate to
the Quarter Sessions; and by sect. 11 of the second
local Act, the justices before whom a person is summoned
for non-payment of the rate are to enforce payment, if
he shall not prove to the justices “that he is not charge-
able with or liable to pay such rate :" it could not have
been intended by the legislature that the matter which
they had previously said should be decided by appeal to
the Quarter Sessions, should be inquired into by two
justices. The words would be satisfied by shewing that
he was not the person charged, or that he had paid the
rate, or that he was not the occupier, as in the case of
poor rate. The present case is not within the words or
spirit of stat. 20 & 21 Vict. c. 43. s. 2., which refers to
matters of which the justices have summary jurisdiction.
There is a distinction between a rate which is absolutely
void, and a rate which is informal : if the rate is void,
the justices might have refused to issue their warrant,
and probably this Court would not have compelled them
to issue it; but the justices have not jurisdiction to
determine whether the rate is good or not.

Mellor J. concurred.

Rule refused.

1862.

Ex parte MANNERING and another, Church wardens Wednesday,

April 16th. of STAPLEHURST.

Church rate.

Notice to disA person summoned before justices for non-payment of a church rate pute validity. contended that the summons should be dismissed on the grounds that 53 G. 3. c. 127. the rate was wrongly described in the summons and that the rate was s. 7. illegally made. These grounds of objection having been argued, and the magistrates being about to deliberate, he gave notice that he disputed the validity of the rate and his liability to pay it; and thereupon the justicos decided that their jurisdiction was taken away by the third proviso to sect. 7 of stat. 53 G. 3. c. 127. This Court refused a rule on the justices to make an order for payment of the rate.

THIS was an application for a rule under stat. 11 & 12

Vict. c. 44. s. 5., calling upon two justices of Kent to shew cause why they should not make an order upon Elisha Balley for payment of the sum of 6s., assessed on him as his proportion of a church rate for the parish of Staplehurst, in the county of Kent.

At a vestry meeting of the parish of Staplehurst duly convened and held on the 1st November, 1861, a resolution for a church rate of 3d. in the pound was carried by a majority of the parishioners then present. In pursuance of that resolution, the churchwardens, on the 10th January, 1862, made a rate upon the persons liable to pay the same, among whom Elisha Balley was assessed and charged with the sum of 6s. as his proportion. Upon application for payment he refused to pay: in consequence of which refusal an information against him was laid by one of the churchwardens, and a summons issued thereupon. On the hearing of the information, after the case for the complainant had been closed, the attorney for Elisha Balley submitted to the magistrates

1862.

Ex parte MANNERING.

that the summons should be dismissed for two reasons. First, that by the summons Elisha Balley was summoned for the non-payment of a rate made on the 10th January, 1862, whereas the rate, if made at all, was made on the ]st November, 1861. Secondly, that the rate purporting to have been made on the 1st November, 1861, was illegally made, on the ground that the chairman of the meeting had refused to put an amendment, moved by one of the parishioners at the meeting, to the effect that the amount of the estimate be raised by voluntary contribution. The counsel for the complainant in reply insisted that the rate was legally made, and Elisha Balley properly summoned; and he asked that an order for payment might be made. The magistrates being about to deliberate, the attorney for Elisha Balley then stated to them that he disputed, under the third proviso of sect. 7 of stat. 53 G. 3. c. 127., the validity of the rate, and the liability of Elisha Balley to pay the same. No notice of any objection to the validity of the rate, or of the liability of Elisha Balley to pay the same, was given to the magistrates at the hearing by Elisha Balley or his attorney other than or at any other time than the notice above mentioned. The magistrates were of opinion that their jurisdiction was taken away by that enactment, and declined to make an order upon Elisha Balley for payment.

Barrow, in support of the application. By the third proviso in sect. 7 of stat. 53 G. 3. c. 127., "if the validity of such rate, or the liability of the person from whom it is demanded to pay the same, be disputed, and the party disputing the same give notice thereof to the justices, the justices shall forbear giving judgment there

1862. Ex parte MANNERING.

upon.” But it was not intended that the party summoned should argue the case before the magistrates, and take the chance of a decision in his favour, and then, on finding that their judgment was likely to be against him, withdraw the matter from their jurisdiction by a bare announcement that he disputed the rate or his liability to pay it. If a party intends to avail himself of this proviso, he should give notice that he disputes the validity of the rate or his liability to pay it when the case is called on. The objection taken and argued before the magistrates, that the summons was irregular and informal, was one exclusively for their decision ; and therefore the defendant having submitted the case to the jurisdiction of the magistrates could not afterwards withdraw it from them. [He cited Reg. v. The Justices of Salop (a).]

Cockburn C. J. This case is different from the case cited, where this Court refused to grant a certiorari to remove an order for payment of a church rate, the notice of disputing the validity of the rate having been given after a formal objection to the rate had been argued and the magistrates had decided upon it. Here the party summoned intended bonâ fide to dispute the validity of the rate, and gave notice thereof prior to the decision of the magistrates upon the points which had been argued, and they acquiesced in the bona fides of the objection, and held their hands. Under these circumstances it would be a strong thing for this Court to command them to make an order enforcing payment of the rate. I think therefore we ought not to interfere.

(a) 29 L. J. M. C. 39; S. C. nom. Reg. v. Wicksted and another, Justices of Salop, 6 Jur. N. S. 143.

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