Neither the Vice-Chancellors nor the Lord Chancellor have Jurisdiction to rehear an Order that is inrolled, and the House of Lords can only rehear such an Order for the Purpose of determining whether it was proper at the Time it was made. Upon the death of William Wastell, Ellen Miles Wastell, as one of his children, became entitled to onethird of a sum of 40007., charged by the marriage-settlement of her parents upon the estates of her grandfather, Sir John Miles, and also to one-third of the residuary real and personal estate of her said grandfather under his will. On the 12th January, 1838, after the death of William Wastell, Ellen Miles Wastell, and Harriet Ann Wastell, another of the children of William Wastell, having a similar interest in the estate of her grandfather, instituted the suit of Wastell v. Leslie to have the accounts taken of the real and personal estate of Sir John Miles, and the trusts of his will executed under the decree of the Court. At the institution of the suit, Messrs. Hicks & Marris acted as solicitors for the Misses Wastell, and continued so to do till June, 1840, when they were discharged. The plaintiff in the present suit, Mr. Charles Ford, was then employed by them to conduct the cause, until 1843, when Ellen Miles Wastell discharged him, and intrusted the management of the suit to other solicitors. Ford, upon being discharged, brought his action against Ellen Miles Wastell, (her sister Mary Ann having married and gone abroad), for his costs in the suit. In June, 1844, he obtained judgment in the action for 4317. 198. 10d. On the 18th June, 1844, that judgment was entered up, and, on the 25th June, 1845, the bill in the present suit was filed by Ford, who claimed thereby to be entitled under 1 & 2 Vict. c. 110, s. 13, to the same interest in the defendant's undivided share of her grandfather's estates as if the same had been charged by way of mortgage with the judgment debt, and prayed either for a foreclosure of the defendant's interest in the property-the subject of the suit of Wastell v. Leslie, or that the sum which should be found due to the plaintiff might be raised and paid thereout. In July, 1846, the common decree of foreclosure was made, and, in December, 1846, the Master by his report found, that the sum of 5747. 12s. was due to the plaintiff in respect of his judgment debt and interest thereon, and appointed March 18, 1847, for payment thereof. On the 18th November, 1846, that report was confirmed, and, on the 18th March, 1847, the plaintiff attended to receive the money. The money was not paid, and, on the 23rd March, 1847, an order was made that Ellen Miles Wastell should stand absolutely debarred and foreclosed of and from all right, title, and interest in the undivided third part or share of the said freehold messuages, hereditaments, and premises. The order of the 23rd March, 1847, was afterwards inrolled. After the inrolment, notice of motion was given by the defendant, that this Court would be moved, by counsel for the defendant, on the 12th June, 1847, or so soon after as counsel could be heard, that the time appointed by the Master's report for payment of the sum found due for principal, interest, and costs to the plaintiff, might be enlarged for a period of six calendar months, or to such other period as the Court might direct, and that notwithstanding the order of the 23rd March last. The motion was now made upon affidavits, stating that the defendant had no property whatever, except that which was the subject of the suit of Wastell v. Leslie; that she the defendant was totally destitute of the means of living, by reason of the non-termination of the suit, and that she was then dependant on the bounty of a friend for the necessaries of life; that she had every personal motive to accelerate the termination of the suit, but that she had hitherto been unable to do so; that the plaintiff's costs consisted of costs incurred in the prosecution of the cause of Was tell v. Leslie, and that those costs would be paid out of the fund in the cause; that the value of her share in the testator's estate was five or six times the amount of the debt. The affidavits then represented, that the property in question in the cause of Wastell v. Leslie consisted, in fact, of a sum of between five and six thousand pounds, then in court, and of a sum of 1000%., which the receiver in the cause was about to pay in; of the lunatic asylum at Hoxton, producing a rental of 3000l. per annum, the only charges upon which were a life annuity of 451. a year for the life of a person aged eighty; two other annuities of 2001. a year and 1007. a year; and certain legacies, amounting together to 12,1197. 15s. 5d. The affidavits then went on to state, that, by the decree made in the cause, and in other causes supplementary to it, certain accounts and inquiries were directed, it being ordered, among other things, that an annuity of 2007. should be paid to the defendant, Ellen Miles Wastell, and that the same should go in part of the sum of 4000l., to one-third of which she was entitled under the marriage settlement of her parents, and that she fully expected that the suit of Wastell v. Leslie would have been terminated before the time appointed by the Master for payment of the money; but that the suit had in some degree been delayed by the plaintiff insisting that he ought to be made a party thereto in respect of the charge sought to be effected by him in the present suit; that the accounts had been taken, and the Master's report made in the suit of Wastell v. Leslie, and that the confirmation of that report and the decision of the cause was impeded only by one exception; and that the cause had been set down on that exception and for further directions. On behalf of the plaintiff Ford it was represented, that the debt in respect of which he had recovered the judgment consisted of costs of the cause of Wastell v. Leslie, of costs in the action, and other costs; and evidence was adduced controverting the defendant's affidavits as to the value of the property. Wood and Goodeve, in support of the motion.-Upon the merits as disclosed by the defendant's affidavits, the present is a stronger case for the indulgence of the Court than is usually required. (Edwards v. Cunliffe, 1 Mad. 287). The Court, though it will require a reason to be assigned why the mortgage-money was not paid at the time appointed, is not in the habit of requiring a very strong reason. (Nanny v. Edwards, 4 Russ. 124; Jones v. Creswick, 9 Sim. 304; Nanfan v. Perkins, Id. 308; Lee v. Heath, Id. 306; Eyre v. Hanson, 2 Beav. 418). And the Court, in a proper case upon the merits, will enlarge the time, though the decree of foreclosure has been made absolute, (Jones v. Creswicke, Joachim v. M'Dowall, 9 Sim. 214), and though the same has been signed and inrolled. (Coker v. Beavit, 1 Chan. Rep. 134; Ismoord v. Claypole, Id. 139; Abney v. Wordsworth, 9 Sim. 317; Crompton v. Earl of Effingham, Id. 311). [They cited also Anon., (Barnardiston, 221); Burgh v. Langton, (15 Ves. 476).] Romilly and Randell, contra.-The Court has no jurisdiction to make the order asked, as by so doing it will in effect be altering or reversing a decree after inrolment. The motion should have been preceded by an order discharging the order of the 23rd March, 1843. (Geldard v. Hornby, 1 Hare, 251; Eyre v. Hanson, 2 Beav. 418). The defendant, moreover, is precluded by her laches in allowing so much time to elapse before making the present application. In all the cases cited the failure of the defendant's endeavours to find means to meet the demand has been urged as a ground for the application; but the affidavit in the present instance simply states the defendant's expectation that the means of payment would arise out of the suit in question, but not that she had endeavoured unsuccessfully to find the money. Wood, in reply.-The object of the present application is not to vary the order of the 23rd March, 1847, but merely to relieve the defendant from the hardship arising, under the circumstances, out of that order. The objection that the order now sought should be preceded by an order discharging the order of the 23rd March, 1847, may be remedied by amending the notice of motion in that respect. the cases cited there, are an answer to that question. It is clear that the Court may and will enlarge the time for payment of the mortgage-money after the order for making the foreclosure absolute, by directing the order to be discharged conditionally that the money is paid at the expiration of the enlarged time, and if no payment, that the order should stand. The next point insisted on by the plaintiff was, that the inrolment of Sir JAMES WIGRAM, V. C.-The notice of motion in the order of the 23rd March, 1843, making the forethis case does not ask to discharge the order of 23rd closure absolute, was a bar to the application being March last, but that the time may be enlarged not- granted. One reason why I have gone into the case so withstanding that order. Without saying that I should fully is, that that appeared to me an objection requiring have allowed that to stand in the way of giving relief, critical examination. It struck me at the time of the I may observe, that, on looking at the precedents, Í argument, that the objection could not be sustained to find the common form of application appears to be, the extent contended for. If, indeed, it were necessary that the order may be discharged on payment of the that I should rehear the order of the 23rd March, 1843, money at the expiration of the enlarged time, or that, the objection must prevail. I cannot rehear an order upon non-payment of the money, the order should that is inrolled. The Lord Chancellor, however, would stand. The case of merits relied upon by the defend- be as clearly without jurisdiction as myself, and the ant is this:His Honor stated the effect of the de- House of Lords could only rehear it for the purpose of fendant's affidavits as set forth above.] Mr. Ford, the deciding whether the order was proper at the time it plaintiff in this cause, in his affidavits in answer to was made; a matter not in dispute. It could not inthose of the defendant, says, that the debt in respect of terfere on an original application to enlarge the time. which he recovered the judgment consists of costs in But the object of the present application is not to disthe cause of Wastell v. Leslie, costs in the action, and pute the propriety of that order at the time it was made, other costs. He does not, however, define what those or to have it reheard for that purpose. The ground of costs are, nor give me an opportunity of seeing whether the application admitting the order of foreclosure to there is anything substantial in the point as to the have been originally right was, that, upon matter subamount of the costs recovered, which does not consist of sequent to the order, the Court ought to enlarge the costs in the original cause. He then controverts the time for payment of the money. In Coker v. Beavit, affidavit of the defendant as to the value of the pro- (1 Chan. Rep. 134), cited at the bar, that was the perty; but, attending to the opportunity which Mr. ground of objection to the order, and on matter Ford had, during the two years and a half he had the subsequent to the order the Court took on itself to management of the cause, of knowing the value of the grant the application. If I am right in saying, that, for property and also the nature of the suit, I am satisfied the purpose of granting such indulgence in a proper that I may safely conclude that the value of the pro- case, the order of the 23rd March, 1843, if not inrolled, perty is three or four times the amount of his debt; might have been discharged, the only question on and that the plaintiff cannot successfully impugn the that part of the case is, whether I might not, for the proposition said to have been relied on by Ellen Miles same purpose, order the inrolment to be vacated. My Wastell, that she was justified in expecting that this opinion is, that, the case on the merits being proper for administration suit would have been terminated at the enlarging the time, the inrolment is no impediment to time fixed by the Master for the payment of Ford's an order being made for that purpose by a Court of debt. The defendant's case is left untouched by the competent jurisdiction. Two of the cases cited in the affidavits filed by the plaintiff in this cause, except to note to Jones v. Creswicke are authorities for this; so the extent that I have mentioned. The question I had are also the cases of Coker v. Beavit (1 Chan. Rep. to consider was, whether that case was enough to sus- 134) and Ismoord v. Claypole, (Id. 135). The remaining tain the present motion. Now, in Nanny v. Edwards, question is, whether I have, as Vice-Chancellor, power (4 Russ. 125), the Lord Chancellor said, that the Court, to order the inrolment to be vacated. That is the only in order to induce it to enlarge the time for redemp-question. I thought at one time I might have got tion, must have some reason assigned (though it does require a very strong one) why the mortgagor did not pay the interest, principal, and costs at the time appointed by the report; and that, in that case of Nanny v. Edwards, there was no excuse for the defendant's default stated. In Eyre v. Hanson, (2 Beav. 478), there is a similar dictum by the Master of the Rolls. The facts of that case are rather an authority for than against this application, so far as it shews the grounds on which the Court will enlarge the time, rather than allow a mortgagee by foreclosure to get an estate greatly exceeding the value of the debt. Edwards v. Cunliffe (1 Madd. 287) is also an important authority for the mortgagor in the present case. So, the cases cited in Jones v. Creswicke (9 Sim. 304) shew that this Court does not require a stronger case than the present is to induce it to enlarge the time when it is proper to do so. On these grounds, if the case turned on the merits, I should certainly have granted the relief asked. But an objection has been taken in point of form, the answer to which depends on the question whether, excluding the effect of inrolment, the order of the 23rd March last, making the foreclosure absolute, is a conclusive answer to an application to enlarge the time, or whether the difficulty of that order may not be got over. The case of Jones v. Creswicke, (9 Sim. 304), and over the difficulty, by making the order on matter subsequent to and notwithstanding the order of March, 1847; as, on a bill of review, I might supersede the original decree, though signed and inrolled. But, on the best consideration I could give the case, I think the proper order to be made, if any is made, must be an order vacating the inrolment, discharging the order of the 23rd March, on condition that the money is paid on the day appointed, and then, if not paid, that the order with the inrolment should stand. But as I find that all applications to vacate the inrolment have been made by the Lord Chancellor, I must, though very reluctantly, on that ground refuse to make the order in the present case. I find that, even in cases where the Court has made the order to vacate the inrolment on the ground of surprise or mala fides, the order has invariably been made by the Lord Chancellor. COURT OF QUEEN'S BENCH.-EASTER TERM. DALE V. POLLARD and Others.-April 30. At a Meeting of Vestry held in Obedience to a Monition from the Ecclesiastical Court, it was moved and seconded that a Church-rate be laid upon the Parish for the necessary Repair of the Church. It was then pro posed and seconded that there be no Church-rate for the Parish Church for the current Year. The original Resolution was rejected by a Majority. A Proposition was then made and seconded that a voluntary Subscription be commenced to pay the Costs of the Church, and was adopted by a Majority. The Churchwardens thereupon proceeded to levy a Rate with the Consent of the Minority, against which there was a Protest. Upon Complaint before Justices against Defendant for Nonpayment of the Sum to which he was liable in Respect of that Rate, he gave Notice, first, that he protested against the Church-rate generally; secondly, that he should not contest the Validity of the Rate in the Ecclesiastical Courts; and, thirdly, that he should commence Actions in the Courts of Common Law against the Justices for all Acts connected with the Rate which he should be advised were illegal:-Held, that the Validity of the Rate was sufficiently disputed and Notice thereof given to the Justices within the Proviso in Sect. 7 of Stat. 53 Geo. 3, c. 127. This was an action of replevin, tried before Lord Denman, C. J., at the summer assizes for the county of York, in 1842, when a verdict was found for the plaintiff, with 37. 38. damages, subject to a special case, in and from which the Court was to draw such inferences as they should think a jury ought to draw. The case set out the pleadings. The cognizance justified taking the goods of the plaintiff under a warrant of justices for levying a sum of 1s. 5d., in which he had been duly rated in a church-rate. Pleas in bar: first, de injuria; secondly, that, at the time of the examination in the cognizance mentioned by the justices into the merits of the complaint of the churchwardens, and before the making or issuing of the order, the plaintiff disputed the validity of the said supposed rate, and then gave notice of his so disputing the validity of the said supposed rate to the said justices.-Verification. Replication, that the plaintiff did not dispute the validity of the said rate, or give notice of his so disputing the validity of the said rate to the said justices in manner and form, &c. Issue thereon. At the trial, it appeared, that, on the 31st March, 1841, in a suit pending in the Consistory Court of the Archbishop of York, against the two defendants, George Pollard and Benjamin Briggs Popplewell, churchwardens of the parish of Bradford, in special, and the parishioners of the said parish in general, and brought by E. Johnson Mitchell, one of the parishioners of the same parish, the said Court made a citation or decree, which was duly executed and served on the said Benjamin Briggs Popplewell and George Pollard, and the parishioners. That, on the 6th May, 1841, a monition upon a decree in the said suit was made in, and issued under, the seal of the said Consistory Court, by which the said Benjamin Briggs Popplewell and George Pollard, the said churchwardens, were peremptorily monished to take the necessary steps towards putting the said parish church of Bradford in repair, and for providing necessaries for the decent celebration of divine service therein, and, amongst other things, to call a vestry to meet on Friday the 14th May, 1841, for the purpose of making a rate for and towards the necessary repair of the said church, and for and towards the necessary expenses appertaining to the state of the said church, and for and towards providing the usual matters and things necessarily to be provided and supplied by them as such churchwardens as aforesaid, for the decent celebration of divine services and offices therein, and for and towards the other expenses necessarily and legally incident to the office of churchwardens of the said parish for the year ensuing, which said monition and decree were, on the 8th May, 1841, duly executed and served on the said Benjamin Briggs Popplewell and George Pollard, the churchwardens of Bradford, and the parishioners of the said parish of Bradford. That, before and at the time of the said E. Johnson Mitchell instituting the said proceedings, and from thence to the making of the distress which formed the subject of the action, the church and church-yard of Bradford were in want of necessary repair, and that the expenses hereinafter mentioned, for the discharge and in respect whereof the rate or supposed rate hereinafter mentioned was made, were necessary. That, in obedience to the monition, Messrs. Popplewell and Pollard duly called a vestry meeting of the churchwardens, parishioners, and other inhabitants of the said parish, to be held in the vestry of the parish church on Friday the said 14th May, and that such meeting was held accordingly. The following is a copy of the material part of the proceedings at this meeting, as entered in the Town's book: "At a meeting of the churchwardens, parishioners, and other inhabitant rate-payers of the parish of Bradford, in the county of York, held in &c., on &c., pursuant to notice, &c., and in obedience to a monition, &c. The Rev. William Scoresby, D.D., vicar, in the chair, Mr. Wells, as the law-agent of the churchwardens, having, at the request of the chairman, read the monition to the meeting, and the chairman having read the notice from the churchwardens to the parishioners, convening the meeting, Mr. Popplewell, the senior churchwarden, moved,― That a church-lay or rate, amounting to the sum of 3831. 4s. 2d., be laid upon the parish for and towards the necessary repair of the parish church, and for and towards the necessary expenses appertaining to the state of the said church; and for and towards providing the usual matters and things necessary to be provided by the churchwardens for the decent celebration of divine services and offices therein; and for and towards the other expenses necessarily and legally incident to the office of churchwarden for the current year, and that it consist of the following items:' [the items were stated.] And he also moved that the sum of one halfpenny in the pound be assessed, for the purpose of raising the sum of 1021. 3s. 9 d. upon all property rateable for the relief of the poor in the township of Bradford. Which was seconded by Mr. George Pollard, the junior churchwarden. Mr. Winterbottom then proposed as a proposition,That there be no church-rate for the parish church of Bradford for the current year." Which was seconded by Mr. George Hansom, of Wilsden. Mr. Popplewell's proposition having been put to the meeting by the chairman, and the negative which involved Mr. Winterbottom's proposition, the original resolution was rejected by a large majority. On the rejection of the rate by the meeting, the chairman, at the request of the churchwardens, asked whether there was any other proposition which the meeting wished to make in lieu of the rate proposed by the churchwardens. On which, Mr. Winterbottom proposed as follows:I propose to all pious, benevolent, and honourable churchmen; to all good and peaceable Dissenters; to all Quakers, Independents, Methodists, and Baptists who are here, that there be commenced this day a voluntary subscription to help the church people pay the costs of the church.' Which was seconded by Mr. George Hansom. The meeting adopting the proposition by a considerable majority, the chairman, on announcing it to the churchwardens, inquired if they would accept of the proposition to which a majority of the meeting * Sic. had agreed. Under the instructions of the churchwardens, the vicar announced that the churchwardens rejected the proposition, because it was not in accordance with the monition, or in furtherance of a rate. Mr. Popplewell having stated to the meeting their objection to the proposition, as not being in accordance with their sense of duty, and in obedience to the monition, The chairman then stated, that he was instructed by the churchwardens to announce, that, as the meeting had rejected the original proposition for a rate, they the churchwardens should now proceed to lay a rate, on their own authority, with the consent of the minority in vestry assembled. The majority of the parishioners in vestry assembled having then refused to grant any rate, We, the churchwardens and other parishioners of &c., whose names are hereunto subscribed, duly assembled in vestry on &c., in pursuance of legal notice, &c., and in obedience, &c., do hereby, in vestry assembled as aforesaid, rate and tax all and every the inhabitants and parishioners of the parish of Bradford aforesaid, for and towards the necessary repair of the parish church of Bradford aforesaid; and for and towards the necessary expenses appertaining to the state of the said church; and for and towards providing the usual matters and things necessarily to be provided and supplied by us, the said churchwardens of the said parish, for the decent celebration of divine service and offices therein; and for and towards the other expenses necessarily and legally incident to the office of churchwarden of the said parish for the year ensuing, according to the ancient usage and customs of and within the said parish, at the sum of 3831. 48. 2d., to be paid to us, the said churchwardens of Bradford aforesaid, and to be levied and raised by the several townships or districts hereinafter mentioned respectively, situated and being within the parish of Bradford aforesaid, in the following proportions, &c. * Protest.-I object to the proceedings entered after in a preceding page, as being passed in defiance of the expressed feeling of the majority of the parishioners to the contrary. Signed by about 200 other persons." Then followed a copy of an extract from another book, called The Assessment or Rate-book, stating the amount of the assessment by the churchwardens of Bradford upon the township of Bradford, for the purpose of raising the sum of 1021. 38. 91d., the proportion legally payable by the said township. At one halfpenny in the pound, the plaintiff would, in respect of his property liable to church-rate, be liable, in the case of a lawful church-rate, to a payment of 18. 5d. The above alleged rate was never questioned in any ecclesiastical court. The churchwardens, the said Benjamin Briggs Popplewell and George Pollard, on the 17th July, 1841, duly gave the plaintiff notice of the said rate, and demanded payment of the said sum of 1s. 5d., which he altogether refused to pay. The said George Pollard thereupon on the 19th July, 1841, made his complaint to Lamplugh Wickham Hird, Esq., a justice of the peace for the West Riding of Yorkshire, in which the parish of Bradford lies, and which complaint (assuming the rate to be valid) was duly made, whereupon Mr. Hird duly (on the same assumption) issued his warrant, under his hand and seal, requiring thereby the plaintiff to appear before him and others her Majesty's justices of the peace for the said West Riding, on Wednesday, the 21st July then instant, to shew cause why he refused to pay the above sum, the validity of the said rate not having been questioned in any ecclesiastical court. On the last-mentioned day the plaintiff appeared accordingly before &c., justices of the peace for the said West Riding, none of them being patrons or patron of the said church, nor having any interest in any of the rights, dues, or other payments belonging to the said church, who then duly examined upon oath into the merits of the said complaint, and thereupon then duly (on the same assumption) and also on the assumption that notice of the validity of such alleged rate, or the liability of the plaintiff to pay the same being disputed, was not given to the justices in conformity with the statute, (53 Geo. 3, c. 127, s. 7), made their order under their hands and seals, directing the plaintiff to pay the said sum of 18. 5d., together with the further sum of 17s., ascertained by the said justices to be reasonable costs and charges. That on the said attendance before the said justices, and before the order last mentioned was made, the said minutes of the said vestry meeting were read to the said justices, and it was proved that the plaintiff's proportion of the rate according to the said assessment or rate-book was 18. 5d., and that he was rateable to that rate, assuming it to be valid; and that the said 1s. 5d. had been demanded of him, and payment of it had been refused by him. That the said justices asked the attorney of the plaintiff, who attended with him and on his behalf, if he had anything to say against payment of the 1s. 5d., to which the attorney answered, "The course I intend to pursue is to put in a written notice;" when the chairman of the justices said to him, "I suppose that is to dispute the validity of the rate;" to which the attorney answered, "No, we shall not dispute the validity of the rate; we shall not try the validity of the rate before these justices, but we will merely give you a written notice." That the said attorney also said he would bring an action against the magistrates if they enforced the rate. That the said attorney also then, before making the said order, served the said justices with a written notice in the following words: "To her Majesty's Justices of the Peace for the West Riding of the County of York. notice, first, that I protest against the church-rate al"I, the undersigned, do give you and each of you leged to have been laid for the parish of Bradford, in the said riding, as being an attempt to impose an unChristians for the benefit of one denomination only; scriptural and oppressive tax upon all denominations of secondly, that I shall not contest the validity of the I shall commence actions in the courts of common law said rate in the ecclesiastical courts; and, thirdly, that against you and all other persons concerned therein for which I shall be advised are illegal. Dated this 21st all acts and proceedings connected with the said rate, day of July, 1841. "JOHN DALE." That the said justices, at the time of the said attendance before them the said justices, and of the said notice being served, and before and at the time of the said order being made, knew that the plaintiff denied and disputed, and intended to deny and dispute, the right of a minority to impose a church-rate against the votes of a majority. On the 1st September the said magistrates made their warrant, under their hands and seals, to levy the said sum of 1s. 5d. and 17s. by distress and sale of the goods and chattels of the plaintiff, and under this warrant two books of the plaintiff were seized in his house at Bradford, which was the taking in respect of which the action was brought. The third question for the opinion of the Court was, Whether the verdict on the last issue should be found for the plaintiff or the defendants. The case was argued by T. F. Ellis, for the plaintiff.-The justices had no jurisdiction to issue their warrant, the plaintiff having given sufficient notice that he disputed the validity of the rate, within the proviso in sect. 7 of stat. 53 Geo. 3, c. 127. In R. v. The Chapelwardens of Milnrow, (5 is found, that the justices knew that the plaintiff disputed, and intended to dispute, the right of a minority to impose a church-rate against the votes of a majority. I am of opinion that a jury ought to find the second issue for the plaintiff. M. & S. 248), notice that the party would bring an action against any person who ventured to levy the rate was held sufficient, though it is not enough to announce an intention to dispute it. (R. v. Wrottesley, 1 B. & Adol. 648). The Court then called upon Cowling, contra.-There was no such dispute of the WIGHTMAN, J.-There is a great difference between validity of the rate as ousted the justices of their ju- a vague statement, that the validity of the rate is disrisdiction. The party ought not to object to all church- puted, and a statement from which the justices could rates indiscriminately, but to shew a particular ob- determine whether there was a bonâ fide intention to jection. The defendant having said that he would dispute it; and that is the question which they ought not dispute the rate in the ecclesiastical court, why to consider, as appears from R. v. Wrottesley, (1 B. & should the applicants be driven into that court? [Erle, Adol. 648). The notice in this case is not very formal J.-His meaning may have been, "If you take me or precise; but, taking the whole together, it is clearly into the ecclesiastical court, I will not dispute it in a notice to dispute the validity of the rate, not before that forum, but will remove it by writ of prohibition. the justices or in the ecclesiastical court, but by prohibiPatteson, J.-Is not the fair meaning of the language tion or by action. It seems that the magistrates were used before the magistrates this?-"We shall not try aware of this at the time, because it is found, in terms, the validity of the rate here; we do not say that we that they knew that the plaintiff denied and disputed, shall not dispute it elsewhere." The written notice and intended to deny and dispute, the right of a midoes not admit any rate; it mentions only the "al-nority to impose a church-rate against the votes of a leged rate."] R. v. Milnrow (5 M. & S. 248) turned upon the liability of the party to be rated. The conclusion as to the bonâ fide intention of the party to dispute the validity of the rate is for the justices, unless they are manifestly wrong. (R. v. Wrottesley, 1 B. & Adol. 648). Where proceedings against a party in the ecclesiastical court are at an end, he may be summoned before the justices. (Reg. v. St. Clement's, Ipswich, 12 Adol. & Ell. 177). After the decision of this Court in Gosling v. Veley, (ante, p. 385), the plaintiff would have no defence to a suit in the ecclesiastical court. The stat. 53 Geo. 3, c. 127, requires that the party should give distinct notice of disputing the rate. The only course which the plaintiff suggested was bring-plaintiff accordingly*. ing an action in the courts of common law. may majority. ERLE, J.-The 7th section of stat. 53 Geo. 3, c. 127, gives summary jurisdiction to the justices only when no question of law was likely to arise. If the validity of the rate is disputed, and there is reasonable ground for disputing it, and notice thereof is given to the justices, their jurisdiction is ousted. Here both concur. In R. v. Wrottesley (1 B. & Ad. 648) the grounds of objection to the rate were not stated to the justices. As I understood in that case, if the grounds had been stated, the justices would have had no jurisdiction. I am of opinion, therefore, that the judgment should be for the plaintiff on the second issue.-Judgment for BAIL COURT.-EASTER TERM. WICKS v. Cox.-April 30. all or any of the Matters in Difference between the Parties" are referred to Arbitrators, who disagree, but only as to the Costs, yet the Umpire must adjudicate on the whole Question. Arbitrators cannot cancel a Deed of Apprenticeship, where the Apprentices are not Parties to the Submission. Covenant. The action was referred, and the order of reference made a rule of court. It set forth that "the matters in difference, and all or any other matters in dispute between the parties," were to be referred to two arbitrators, with power to call in a third party as umpire if they should deem it expedient or necessary. The arbitrators differed as to the awarding of the costs, and thereupon the umpire made an award, to the effect that the action should be put an end to; that certain indentures of apprenticeship, on which the action was brought, should be cancelled; that the defendant should pay 201. as damages, and that the costs should be paid equally by the plaintiff and the defendant. Lord DENMAN, C. J.-It is not impossible that the Legislature may have meant that the enacting clause of sect. 7 of stat. 53 Geo. 3, c. 127, should be applied in every case where the notice was not that the validity If of the rate would be disputed in the ecclesiastical court; but they have not said so; and the validity of the rate may be disputed in this court. Perhaps the proper mode of disputing the rate might be to treat it as no rate; then the proceedings would be in this court, and not in the ecclesiastical court. Mr. Cowling is obliged to contend, that "disputing" means disputing in the ecclesiastical court; but the word is not so confined. In this case the notice contains, first, an objection by the plaintiff of a general kind; there follows, secondly, a notice that he will not dispute the rate in the ecclesiastical court; and thirdly, that he will dispute it in the common law courts on such points as he shall be advised. When he says that he will not dispute the validity of the rate in the ecclesiastical court, he mean that he will take no step in that court. All this is quite consistent with a bona fide intention to dispute the validity of the rate. Our recent decision in Gosling v. Veley shews that there was great doubt upon the validity of a rate made by a minority of the vestry. PATTESON, J.-This is a question of fact, and must be decided by us as any other question of fact. Did the plaintiff dispute the validity of the rate, and give notice thereof to the justices? whether in one way or another is not material; but whether he did so at all is the question. Looking beyond the first step in the proceedings before the magistrates, and taking the whole of the answer before them together, it appears to me obvious that the plaintiff meant to try the validity of the rate somewhere. It would have been better, if the written notice had not been confined to the general ground of objection, but had added the objection, that the rate was made by a minority of the parishioners in vestry; and then there could have been no doubt; but it is plain upon the evidence, that all the parties understood what was meant; it Bovill then obtained a rule nisi to set aside the award, on the ground of excess of authority: first, as to the whole of the award, as the arbitrators had differed only with regard to the costs, and had referred that only to the umpire; and secondly, as to that part of the award which assumed to cancel the indentures of apprenticeship, inasmuch as the submission referred to the action alone, and as the apprentices were parties neither to the action nor to the submission, they, therefore, could not be affected by the award of the umpire. Butt shewed cause.-As to the first point, the award of the umpire was good; the question of costs could not be referred separately to the umpire; as soon as he was called in, the whole of the matters in difference fell under his jurisdiction, and he was, therefore, bound to adjudicate thereon. (Curson v. Sturmer, 1 Roll. Abs. b. 42; Tollet v. Saunders, 9 Price, 612). These two *The jury were discharged as to the other issues. |