MURPHY v. LYONS. already lighted and watched; and that the district so described, E. T. 1864. Queen's Bench together with the parts already appointed to be lighted and watched, should, until altered by the Council, be considered as the district to be lighted and watched; which order was, at the time of making the rates, and still is in force; that the said tenements and hereditaments were and are situate within said district, and that the plaintiffs were and still are the occupiers thereof; that the rates were made on the plaintiffs as occupiers of the said tenements and hereditaments so situate within that district; that the time allowed by the statutes for appealing against any of the rates elapsed long before the institution of any of the proceedings mentioned in the defence for recovery of the rates; that the plaintiffs did not appeal from any of the rates, which the defendants are ready to verify; and the defendants prayed judgment, if the plaintiffs ought to be admitted or received, contrary to their acts and non-appeal as aforesaid, and their acquiescence, and against the said order, declaration, and direction, to plead the first replication. Third rejoinder to the first replication :-That the plaintiffs should not be admitted to plead the first replication, or so much thereof as alleges that the said tenements and hereditaments were not, nor were any of them, within a district within the said borough, lighted and watched, because the several facts stated in the last rejoinder occurred and happened as therein stated[prayer that it may be incorporated with this rejoinder] ;—that, after the time for appealing against the rates had expired, the proceedings and adjudication mentioned in the defence were had and pronounced; that the plaintiffs not having appealed within four months, or at all against that adjudication, the proceedings relating to the warrant and distress were had, as mentioned in the defence, which the defendants are ready to verify; and they prayed judgment if the plaintiffs ought, contrary to their acts and non-appeal, as aforesaid, and their acquiescence, and against the said order and direction, to be admitted or received to plead the first replication, as in the introductory part of this rejoinder mentioned. And the defendants submitted that the plaintiffs were estopped and precluded from maintaining this action of replevin against the defendants. E. T. 1864. MURPHY v. LYONS. The second and third rejoinders to the second replication were respectively precisely the same as the second and third rejoinders to the first replication. To these four rejoinders the plaintiffs demurred.* Dix and Chatterton, for the plaintiffs. The rejoinders, as pleaded, can only be relied on as estoppels : Co. Litt. 352, a; The Duchess of Kingston's case (a). The present (a) 2 Sm. Lead, Cas. (5th ed.) 664, *The following points of demurrer to the second and third rejoinders to the first replication, were noted for argument : First-That the tenements and hereditaments in the defence and subsequent pleadings mentioned, and as occupiers of which the plaintiffs were rated by the Council of the borough of Belfast, being situate in a district within said borough, which was not, at the times of making said respective rates, set out and lighted and watched, as required by the statutory enactments in that behalf, the making and imposing of said rates by the said Council on the plaintiffs was wrongful, illegal and void, and made on the plaintiffs for premises not within the jurisdiction of such Council in that behalf. Second-And further, as to the said third rejoinder, that the said Justices had not any authority or jurisdiction to make orders for payment of said rates, and that said orders were wholly void, and the defendant Lyons had not any jurisdiction to issue the warrants under which the plaintiffs' goods were seized; and that said seizure was wrongful, illegal, and without authority in law. Points of demurrer to the second and third rejoinders to the plaintiffs' second replication: : First—That the plaintiffs, not being liable to be rated in respect of the said tenements and hereditaments on the grounds in said second replication stated, the making notwithstanding of rates on them as occupiers of such tenements and hereditaments, was wrongful, illegal, and void, and same were made without authority in that behalf, and in a place where the said Council had not, at said times of making same, any jurisdiction to make said rates. Second-And further, to said third rejoinder, that said Justices had not any authority or jurisdiction to make orders for payment of said rates, and that same were wholly void; and said defendant Lyons had not any jurisdiction to issue the warrants under which the plaintiffs' goods were seized; and that said seizure was illegal, wrongful, and without authority in law. Points of demurrer to all the rejoinders : That they, or any of them, do not show any sufficient grounds why the plaintiffs are cstopped from pleading the said replications; and further, that, if the defendants had intended to rely on the matters in said rejoinders stated by way of estoppel, they were bound to have put forward and relied on such matters of estoppel in their said defence; and that, having allowed the plaintiffs to file replications to said defence, they have lapsed their time, and cannot now, by the further subsequent pleading, rely on said alleged estoppel. MURPHY V. LYONS. estoppels, if any, are by matters in pais, and yet the allegation E. T. 1684. Queen's Bench is, not that the plaintiffs did an act, but that they did not do an act, namely, appeal. The defences did not rely on that as matter of estoppel. Therefore the defendants cannot so rely on it in their rejoinders; for matters of estoppel must be pleaded as early as possible: 1 Saund. Rep., p. 325, a, note d; Vooght v. Winch (a). If the Town Council had no jurisdiction to impose the rates, then the whole proceedings were a nullity, and the plaintiffs are entitled to bring this action of replevin: Sabourin v. Marshall (b); Weaver v. Price (c). Under the Belfast special Acts (8 & 9 Vic., Loc. and Per., c, 142, and the 16 & 17 Vic., c. 114) the Town Council had no jurisdiction to impose these rates on these particular premises. Under the 8 & 9 Vic. (Loc. and Per.), c. 142, ss. 66, 257, and 276, the Town Council have no power to impose rates on districts within the borough of Belfast, provided that they are "set out and lighted and watched." But the plaintiffs' premises are situate in a district which is not lighted and watched, and are also exempted from the rates on account of being situated in a demesne of not less than forty acres (16 & 17 Vic., c. 114, s. 6). The plaintiffs were not confined to the remedy by appeal: Milward v. Caffin (d); Governor of the Poor of Bristol v. Wait (e).-[FITZGERALD, J. Is not the ground of the English decisions on the Poor-laws this-that the occupation is the foundation of the jurisdiction; and that, unless there is occupation, there is no jurisdiction?]-Yes; and the Justice who issued the warrant is not more protected than the Town Council: George v. Chambers (f). An action of replevin may be maintained against a person who improperly issues a warrant under which another's goods are distrained: Jones v. Johnson (g). Counsel also cited Gilbert on Replevin, p. 138; Scadding v. Lorant (h); Woods v. Reed (i); Siebald v. Roderick (k); Lord Amherst v. Lord Somers (1); and Fernley v. Worthington (m). E. T. 1864. MURPHY v. LYONS. May and Macdonogh, contra. The 8 & 9 Vic., (Loc. and Per.,) c. 142, s. 66, gives the Town Council of Belfast a jurisdiction co-extensive with the local limits of that borough; and their duty is to make, in the first instance, a rate extending over the whole borough, and then persons exempted by sections 348 and 351 can put forward their claims. The appeal code extends from section 361 to section 370. No appeal from the decision of the Quarter Sessions is given; so that they are exclusively to determine on the matter of fact as to a man's liability to, or immunity from the rate; and the matter, being properly one of appeal, does not enable the plaintiffs to maintain an action of replevin or trespass. The plaintiffs should have appealed, if the Town Council had jurisdiction to impose the rates; if they had not jurisdiction, an action of trespass might be brought, but not replevin: Marshall v. Pitman (a); Newbould v. Coltman (b) ; The Churchwardens of Birmingham v. Shaw (c); Wilson v. Weller (d); The Queen v. Bradshaw (e).—[LEFROY, C. J. Every parishioner is liable prima facie to pay the poor-rate.]-So we say here; and that the plaintiffs were bound to show their exemption: Luton Local Board of Health v. Davis (f); Pedley v. Davis (g). The Town Council had jurisdiction to impose the rate; it was prima facie valid, and, not having been appealed against, the Justices were bound to enforce it. The principle established in these cases is also to be found in Fawcett v. Fowlis (h); Ex parte May (i) ; The Queen v. Justices of Kingston and Philips (k). There being no want of jurisdiction in the Town Council to impose the rate, the Justice had authority to determine the only fact which he did determine: Brittain v. Kinnaird (1); Cave v. Mountain (m); The (a) 9 Bing. 595. (b) 6 Exch. Rep. 189. (g) 10 C. B., N. S. 492. (i) 2 B. & Sm. 426. (1) 1 Br. & Bing. 432. (h) 7 B. & Cr. 394. (k) 1 Ell., Bl. & Ell. 256. (m) 1 M. & Gr. 257. Queen v. Bolton (a). Estoppels are not odious, save where they E. T. 1864. Queen's Bench are sought to be made out and raised by implication: Palmer v. Ekins (b) The estoppel in pais has been properly relied on in the rejoinder: Sanderson v. Collman (c); Doe v. Huddert (d); Doe v. Wright (e); Ingleton v. Burgess (f); Outram v. Morewood (g). Chatterton, in reply. If there be a prima facie occupation of ratable premises situate within the area of local taxation, then the case becomes one of personal or exceptional liability; and the party is bound to take his remedy by appeal. But if he is not in occupation of ratable premises; or if, being in occupation of ratable premises, they are situate outside the limits of local taxation, then it is open to him to bring an action, and the question need not be determined on appeal: Milward v. Caffin (h); The Governor of the Bristol Poor v. Wait (i). No doubt, any matter which is within the jurisdiction, either of the Town Council, who are the rating body, or of the Justices who are called upon to decide, and act judicially, cannot be called in question in an action of this kind. But the plaintiffs are entitled to bring this action, because the proceedings were altogether ultra vires; and, being therefore null and void, cannot be made valid by anything occurring subsequently. The English decisions establish that, if the act of the rating body be void, it cannot be cured by the proceeding before the Justices to recover the void rate. The jurisdiction of the Justices does not then apply; and their act, if they determine the case, may be set right in an action of replevin, or called in question in an action of trespass. It is clear from the statutes that the Town Council entirely exceeded their powers. By the 8 & 9 Vic. (Loc. & Per.), c. 142, s. 66, the Act is to be put in force within the borough, "or any part thereof, MURPHY บ. LYONS. |