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1862.

Ex parte
MAY.

duly carried at the vestry meeting, on the 4th July, and that therefore no rate was made on that day. The justices refused to hear that evidence, the rate being good on the face of it; and made an order for payment of the rate, and decided to issue their warrant thereon. Thereupon application was made to them to state a case under sect. 2 of stat. 20 & 21 Vict. c. 43., which they refused, on the ground that that statute did not apply, and that the applicant must appeal to the Quarter Sessions under sect. 51 of stat. 53 G. 3. c. clxii.

T. Campbell Foster, in support of the application.— The right of appeal given by stat. 53 G. 3. c. clxii. s. 51. does not deprive a party summoned for non-payment of church rate of the right to shew that the rate is a nullity. [Blackburn J. The question is whether this is one of the summary proceedings to which sect. 11 of stat. 20 & 21 Vict. c. 43. applies.]

COCKBURN C. J. I am of opinion that there ought to be no rule. The effect of the two local Acts is to bring this case within the rule which we have acted upon with regard to poor rates (a), viz., that the duty of magistrates when payment is sought to be enforced is to see that there is such a rate as is alleged, and that the party summoned is assessed to it, and that he has not paid his assessment: when they have ascertained these matters, -the rate being good on the face of it,their duty is to enforce payment, and not to enter into the question of its legality, which is for the jurisdiction of

(a) See Reg. v. The Justices of Kingston upon Thames, E. B. & E. 256; and Reg. v. Bradshaw and others, Justices of Warwickshire, 29 L. J. M. C. 176; 6 Jur. N. S. 629.

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.

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 sumB. & S.

VOL. II.

2 F

1862.

Ex parte

ΜΑΥ.

1862.

Ex parte
ΜΑΣ.

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 chargeable 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, Churchwardens Wednesday, of STAPLEHURST.

A person summoned before justices for non-payment of a church rate contended that the summons should be dismissed on the grounds that the rate was wrongly described in the summons and that the rate was 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 justices 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.

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

THIS

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

April 16th.

Church rate. Notice to dispute validity. 53 G. 3. c. 127. s. 7.

432

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 1st 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

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