1854. v. SAUNDERS. supposed by me in the beginning of my judgment. I think, however, that it was not intended to invest the The QUEEN two visiting justices with authority to allow any items. They were deputed, in a manner, to advise the treasurer as to what payments he should make; and in all probability payments which they directed would be sanctioned by the Sessions. But, if they should direct an illegal payment, and that fact is brought to the notice of the Sessions when auditing the accounts, the Sessions are bound, notwithstanding the direction of the visiting justices, to disallow the payment. I have hitherto proceeded on the supposition that the Sessions had allowed this payment. But, in fact, they disallowed it; and the year's account, with this item disallowed, became as it were a record under stat. 15 & 16 Vict. c. 81. s. 50.; so that it is difficult to see how any subsequent Sessions could open up what had become res judicata. more difficult is it, in my mind, to see how that could be done by a Sessions which took upon itself to dispense with that very salutary standing order requiring notice to be given. That, if there were no other objection to this order, would make it at least doubtful whether the order should not be quashed; because the Sessions were not properly constituted to entertain the question. Still CROMPTON J. I agree that the order must be quashed for two reasons. First I think that the Sessions, in 1853, had no power to interfere with what the former Sessions, in 1852, had done by disallowing (and in this case, as it happens, properly disallowing) a payment. It would be a very dangerous practice if such a thing were suffered. Items which ought to have been borne by 1854. V. SAUNDERS. TRINITY TERM. the rate-payers in one year might be thrown on the The QUEEN rate-payers in another. That is a sufficient ground for making this rule absolute. But I should have come to the same conclusion if the first Sessions, when passing the treasurer's accounts, had allowed, instead of disallowing, this item. Passing accounts is a judicial act; those who do so ought to examine, and allow or disallow according to law: and, this being a judicial act, and the certiorari not being taken away, we are bound, if it appears that an illegal item has been passed, to grant a certiorari and to quash the illegal allowance. It is said that the order of the two visiting justices ought to have been brought up by certiorari. I am unable to see any ground for that. The order of the two visiting justices could not take away the discretion of those who are to pass the treasurer's accounts; and the rate-payers therefore were not affected by it. The grievance to the ratepayers was not the making of that order by the visiting justices, but the order of Sessions by which the sum passed into the accounts, and so became one of the items which the county is rated to pay. But, in effect, that which is called an order of the two justices was not an order on the treasurer, but a voucher to him. I am therefore of opinion that the rule should be absolute; because the Sessions had no power to interfere with the disallowance by the former Sessions, and because that disallowance by the former Sessions was right. Rule absolute. 1854. The QUEEN against ABNEY and another. C. G. MEREWETHER, in Easter Term, 1853, said two said poses for which in the said county, on 17th December last, and the sum The rule having come on for argument, it was ordered, by consent, that the rule should be enlarged, and that, in the mean time, a special case should be stated for the opinion of this Court, as to the validity of the rate, upon objections taken before the said justices: said the churchwardens of the said parish, and the "This is to give notice: that a vestry meeting of the ratepayers of the three townships of the parish of Whitwick will be held at the Infant School Room on a church-rate can be laid only at common law, is bad. Therefore, where a rate was laid, with the formalities requisite for a rate under the statutes, "for providing and towards necessary ad ditional burial ground" for a parish, "and for and towards spouting" a chapel, and the magis trates refused to issue a dis tress warrant for non-pay ment, this Court refused to order the magistrates to issue the war rant. 1854. The QUEEN V. ABNEY. Friday the 17th day of December instant, at 2 o'clock in the afternoon, to determine the best mode of providing additional burial ground for the said parish, and to make a church-rate for that purpose; and also for the draining of Saint George's Chapel Yard, and for spouting Saint George's Chapel, Whitwick. December 11th, 1852. Signed, William Bonnett, Churchwarden. Francis Merewether, Vicar." The above notice was published, as directed by the Act, upon the door of the parish church, but was so for one Sunday only. At this meeting, a rate was granted by a majority of the rated inhabitants present. The rate so made was laid as follows. We, the churchwardens and other parishioners of the parish of Whitwick, in the county of Leicester, whose names are hereafter subscribed, in pursuance of a resolution passed at the vestry meeting duly holden the 17th day of December, 1852, for granting a rate of 44d. in the pound for and towards providing necessary additional burial ground for the said parish, and for and towards the draining of Saint George's Chapel Yard, and for and towards spouting Saint George's Chapel in the said parish, rate and tax all and every the inhabitants and parishioners, and other ratepayers of the parish aforesaid, hereunder mentioned, to the said rate in the sums hereafter mentioned. Signed" by one churchwarden, the vicar (who was chairman), a curate, two overseers, and another. The rate was duly allowed, and was, during the month of February, demanded of William Stinson; and, in consequence of his refusal, a summons was applied for and obtained, which came on for hearing before two justices at Ashby de la Zouch, March 12th, 1853. Stinson, with his attorney, attended. 1854. V. ABNEY. The magistrates decided against Stinson, and ordered The QUEEN him to pay the rate. They, however, declined to issue a distress warrant: and the above rule was therefore obtained in this Court; when the Court ordered this case to be stated, to try the validity of the rate. The two Church Building Acts referred to are 58 G. 3. c. 45. ss. 59., 60., 59 G. 3. c. 134. s. 24. The question for the opinion of the Court is, Whether the rate is good as against the objections stated above (a). If the Court shall be of opinion in the affirmative, then it is agreed that the rule shall be made absolute, the rate paid, and all proceedings stayed. But, if the Court shall be of opinion in the negative, then it is agreed that the rule shall be discharged. C. G. Merewether, in support of the application. Three objections are made to the rate: first, that, under stats. 58 G. 3. c. 45., 59 G. 3. c. 134., there is no power to lay a rate for the purpose of enlarging the burial ground; secondly, that, if there be such power, notice should have been given on two Sundays. Thirdly, that a rate for such purpose, if authorized by statute, cannot be joined with a church-rate. (The Court having pronounced no opinion on the first (b) and second (c) objections, the argument as to them is omitted.) As to the third objection, if the vestry have power to lay a rate for each purpose, why should they not lay it for the two jointly? Sect. 25 of stat. 59 G. 3. c. 134., under which, if at all, the rate for enlarging (a) The case contained no statement of objections except as in the text. (b) As to this, reference was made to stat. 58 G. 3. c. 45. ss. 59., 60., 61. and stat. 59 G. 3. c. 134. ss. 24., 25. (c) Reference was made to stat. 59 G. 3. c. 134. s. 25. |