Reg. v. E. B. Shaw, Clerk.-QUEEN'S BENCH. cessors, &c. by such contributions and proportions, and in manner afore-mentioned, should be in lieu and satisfaction of, and in full compensation of and for all tithes, both great and small, and all compositions and payments for the same, arising and renewing within the said fields, so intended and appointed to be divided and enclosed as aforesaid; and also in lieu and satisfaction of, and in full compensation for all tithes due and payable to the rector for the time being from the inhabitants for themselves and their habitations, and for all things titheable arising, renewing, or happening within, upon, from, and out of their yards, gardens, orchards, and homesteads, situate and being in and about the town of Narborough aforesaid, other than and except, &c. [then followed certain exceptions], and other than and except in respect of all the houses in the said town of Narborough to which no lands or grounds in the said common fields or meadows belonged, and the inhabitants for the time being of such last-mentioned houses, and everything titheable to such last-mentioned houses belonging, within the parish of Narborough aforesaid. The commissioners made an award pursuant to the act, and at the time of the rate the Rev. E. B. Shaw was rector, and the said annual sum of 901. was vested in him. The Court of Quarter Sessions decided that he was liable to be rated in respect of this annual sum, and amended the rate accordingly. If the Court of Queen's Bench were of opinion that the decision of the Quarter Sessions was wrong, the order of Quarter Sessions for amending the rate was to be quashed.

Whitehurst and Barlow, in support of the order of Sessions. In this case there is no extinguishment of the tithes of the whole parish; it is no more than a convenient arrangement as to how the tithes of a particular part of the parish shall be paid. (R. v. Wistow, 5 A. & E. | 250; R. v. Boldero, 4 B. & C. 471.) The two cases which will be relied on as authorities the other way are Chatfield v. Ruston, 3 B. & C. 863, and Mitchell v. Fordham, 6 B. & C. 274. The principle of those cases was, that a bargain was made between the whole parish and the clergyman, that he should not pay the poor-rate, but should have a smaller sum by way of tithe than if he were rateable. That principle does not apply, because the rights to the common lands belonged only to a portion of the parish, and part of the parish still pays tithe. It would be a hardship upon that part of the parish which derives no benefit from the enclosure if the defendant be not rated. It will be so much lost to the parish, and will make the rates of that part of the parish heavier. In Chatfield v. Ruston the words were express, "free and clear from all rates, taxes, and deductions." In Mitchell | v. Fordham the words were "free from all taxes and other deductions, except the land-tax." There it was held that the word "taxes" would include a poor-rate as a parochial tax. Here there is no word nearly so strong. The word "reprises" is much the same as deductions; both that word and "outgoings" would include the land-tax, which is excepted; but the poor-rate is not a charge upon land at all, it is a personal tax. If it had been meant that the poor-rate should not be paid by the parson, the words "rates or taxes" would have been used. The proviso means merely that as between the occupiers and the parson, the former may deduct the land-tax. The poor-rate they could never be called upon to pay, and therefore would never have the power of deducting. The act says that they shall pay, not that he shall have, the money, clear of deductions. In no case would the poor-rate attach until the money was in his hands.

M. D. Hill and Corner, contrà.-It is true the arrangement only applies to that part of the parish which was interested in the common lands-that is the only part to which it ought to apply. But the improved value of the land, rendering it more available for rateable purposes,

Reg. v. E. B. Shaw, Clerk.-QUEEN'S BENCH. goes far to remove the argument from supposed hardship. The object of the act was, that the rector should be protected, and should have his rent-charge clear of incumbrances. Before the act, when tithes were taken in kind, the parson would have had to pay the land-tax; then the exception as to the land-tax would have been unnecessary, if the preceding part of the proviso had not exempted him from every tax or rate. There are no words in the act expressly extinguishing the tithes; and, therefore, the effect may be to create a statutable lease of the tithes as suggested in R. v. Boldero, 4 B. & C. 467. But the case turns on the words of the act. They are, in effect, the same as in Chatfield v. Ruston. There the provision was that rent should be "issuing and payable to the vicar out of the lands," "free and clear of all rates, taxes, and deductions." And in Mitchell v. Fordham it was to be "issuing and payable from and out of the lands." neither of the cases would the court give effect to the argument that the deductions had reference only to what was payable in the first instance by the tenant. The word "outgoings is larger than " deductions," which was employed in the latter case. The word would have been 'shortcomings " rather than "outgoings" if the argument for the rate is correct.

In

LORD DENMAN, C. J.-I think the Court of Quarter Sessions was wrong. I cannot entertain any doubt upon the words of this act, that the clergyman was to have the 901. annually, after deducting the land-tax, free from all other deductions, whether before or after payment to him. The language of the court in Mitchell v. Fordham furnishes very strong arguments in favour of the defendant, and it would be making the act a mockery, a delusion, and a snare, if we were to hold that the rector was to derive no benefit from a clause which says that his rentcharge shall be payable to him free from all deductions, abatements, or defalcations whatsoever. The clergyman must have thought and believed himself to be exempt; the parish thought so too. As to the supposed unfairness of the bargain, we must take the act as we find it; and one can hardly presume that there was any part of the parish which held aloof from and was not bound by the agreement.

PATTESON, J.-I entirely agree that the rector is not to be exempted from the poor-rate except by express words, but here the words are express. The word "outgoings "is quite as extensive as the expressions "rates, taxes, or deductions," in the cases that have been cited. It is said that the tithes are not wholly extinguished, and that, therefore, as the rate will be lost in respect of the lands charged with the annual sum of 901. an injustice is done to the owners of that property in the parish to which the act does not apply. I do not see that any such injustice will necessarily follow, when the increased value of the land is taken into account. But suppose there should be some injustice, the words of the act are express, and we should not be justified in a different construction of them. Then it is contended that in the other cases the rector was to have the rent-charge free, whereas here the payers are to pay it free from deductions in respect of certain outgoings, so that the exemption is only to apply to matters which they would pay in the first instance, and then have to deduct. That argument, however, was used in Chatfield v. Ruston, but the court said such a construction would make the words confer no benefit at all upon the rector. Whatever the prima facie meaning of such an expression may be, the real and obvious meaning is that the rector shall be protected from all such charges, whether made before or after he receives the money, whether actually or virtually deducted.

COLERIDGE, J.-After a good deal of doubt in the course of the argument, I come to the same conclusion with the rest of the court; not upon any financial argu

Bower v. Wood.-QUEEN'S BENCH.

ment, because I think the calculation of profit or loss to the parish turns on such nice points, that it could not have entered into the minds of the framers of the act, but upon the words of the act. If the words of exemption apply after the money comes into the hands of the rector, they are quite large enough, for we must construe them liberally, almost popularly, and popularly speaking, no word can be larger than "outgoings." Then, do they so apply? The strict construction would make the language relate rather to deductions to be made by the tenants in the first instance. But then in Chatfield v. Ruston and Mitchell v. Fordham there are similar words, liable to precisely the same difficulty of construction. The court did not boggle at the difficulty in those cases, and they become authorities for our not finding any difficulty here. It is important to construe different local acts in one way when they have all one object. I think it was clearly the intention of those who framed the act, that the clergyman should have his annual rent-charge free from any such tax as the poor-rate. ERLE, J. concurred.

Order of Quarter Sessions quashed.

April 17, 1848.

BOWER v. WOOD.

Qualification of commissioners under 8 & 9 Vict. c. 194, a local lighting, draining, and improvement act-Rating. By s. 20 of 8 & 9 Vict. c. 194, it is enacted that “ no person shall be capable of acting as a commissioner in the execution of this act unless he shall be a resident inhabitant or an occupier of houses or lands within the limits thereof, and shall be rated in the rate made for the relief of the poor of the said parish of Aston, for houses or lands of not less, according to such rate, than the annual value of 151. by him occupied within such limits.” Held, in an action brought to recover penalties for acting without qualification, that the "annual value" meant the rateable value; and that therefore it was not a sufficient qualification that the defendant was rated by name for a house of which he was the occupier, and of which the gross estimated rental was stated in the rate to be 171. 2s. but the rateable value only 141. 6s. Held, also, that the necessary qualification could not be made up by showing that the defendant actually paid the rate for other houses to a value much beyond 151., he not being named in the rate, although it appeared that the name of another person had been inserted in the rate by

mistake.

Debt to recover penalties for acting as a commissioner under stat. 8 & 9 Vict. c. 194, "An Act for lighting, draining, cleansing, and improving the Hamlets or Liberties of Duddeston and Neckells in the Parish of Aston, near Birmingham, in the County of Warwick," without the requisite qualification. The declaration contained five counts for so acting on five different occasions. Plea-Nil debet, by statute.

At the trial which took place before Parke, B. at Warwick, during the Spring Assizes, 1847, the plaintiff obtained a verdict on the fourth count only; and upon that leave was reserved to the defendant to move to enter the verdict for him. On the part of the defendant it was proved that at the time in question he was rated by name for a house in his own occupation, of which the gross estimated rental was stated in the rate to be 171. 28. but the rateable value only 147. 6s. It was also proved that the defendant had, during a portion of the time when the rate in question was in force, occupied another house which was rated in the name of James Barton, the origi

Bower v. Wood.-QUEEN'S BENCH.

nal occupier at the time when the rate was made; and that under 17 Geo. 2, c. 38, s. 12, he had been required to pay and had paid half the rate charged upon that house. The defendant had also paid the rate for another house, which he occupied at the time the rate was made; but by a mistake of the parish officer the name of Thomas Hunt had been inserted in the rate instead of that of the defendant. The parish officer, after the rate had been signed and allowed, had with a pencil struck out the names of Barton and Hunt, and inserted over them that of the defendant. If either of these two ratings could be taken into account the qualification would be made out. The learned judge was of opinion that the qualification was not proved and directed a verdict for the plaintiff. Whitehurst, in the following term, obtained a rule pursuant to the leave reserved.

R. Miller now showed cause.-The 20th section of the stat. 8 & 9 Vict. c. 194, describes the qualification. It provides that no person shall act as a commissioner unless he shall be a resident inhabitant or an occupier of houses or lands within the limits of the act, and shall be rated in the rate made for the relief of the poor "for houses or lands of not less, according to such rate, than the annual value of 157. by him occupied within such limits." It is quite clear that the defendant had not the qualification required by that section. The yearly value, according to the rate, must be the rateable value; and the rateable value of the only house for which the defendant was rated was less than 157. The other houses are out of the question, because the defendant was not rated for them "in the rate." The pencil-marks of the overseer are no part of the rate: nor does the 17 Geo. 2, c. 38, succeeding to the occupation of premises in the middle s. 12, affect the question. That section makes a person of a year liable to pay a proportion of the rate; but it does not follow that he is "rated in the rate." object of the clause clearly is, that the ratepayers may ascertain the qualification of any candidate by simply referring to the rate.

The

to enforce penalties against the defendant for acting Whitehurst and Bittleston, contrà.-This is an action without qualifications; and there is no doubt in point that in point of law the rating of the defendant was sufof fact he was abundantly qualified. It is submitted ficient:-1st. The yearly value meant by the clause is not the rateable value, or it would have been so described; and the words "according to the rate" have not necesAct the rate must state not only the rateable value but sarily that meaning, because by the Parochial Assessment the gross estimated rental. Clear yearly value in the Reform Act has been held to exclude expenses of repairs and insurance. (Colvill v. Wood, 2 C. B. 210.) 2ndly. The qualification was at all events made complete by the rating for the other houses. It was not necessary the defendant's name should be actually inserted in the rate. (R. v. Walsall, Cald. 91.) The effect of 17 Geo. 2, c. 38, s. 12, is to place the defendant in the same position as if he had been originally rated with respect to the house for which he was required to pay a proportion of the rate. As to the other house, the defendant was the occupier when the rate was made, and he paid the rate, and had every reason to believe that he was rated. It was a mere mistake of the overseer, who inserted a wrong name in the rate; and surely the defendant's qualification cannot be destroyed by that mistake.

that

By the COURT.-It is certainly a hard case upon the defendant, but it is impossible to get rid of the words of the clause. There is no sufficient rating. Rule discharged.

Reg. v. The Inhabitants of Sheffield.-QUEEN'S BENCH. cable in 1841 by the change of property and the different value of land in the neighbourhood may be wholly inadequate now. The cases cited are quite distinguishable. In one of them something had been done in proper time, though not properly done. Here there has been no beginning. The others admit of as easy a comment. PATTESON, J.-The act authorizes and requires these roads to be built, but that is only part of the consideration for granting the higher tolls, for the act recites that the trustees cannot continue to repair the roads, or pay off the charges upon them, without increased powers. But the real answer is, that the prosecutor coming twelve years after the act passed, and seven years after the expiration of the compulsory powers, comes too late. Nor is it as if they had begun the roads and then abandoned them. That, and the circumstance that the compulsory powers have expired before any application, distinguish this from Reg. v. The Eastern Counties Railway Company. As they cannot enforce the landowners' consent, the trustees would not now have the power of doing what is required, except at a ruinous rate.

COLERIDGE, J.-I am entirely of the same opinion, upon the same grounds. We have to exercise a discretion in determining whether such a writ as this shall issue, and there may often be cases in which we should be called upon to give effect to an answer not legally sufficient so as to be capable of being presented in a return. As to the lapse of time, we do not say that any particular number of years is a bar, but that unexplained laches is a bar to the application. ERLE, J. concurred.

Rule discharged with costs.

July 12, 1848.

REG. v. THE INHABITANTS OF SHEFFIELD. (a) Order of removal-Caption of examinations-Sufficient statement of complaint.

The caption of examinations sent with an order of removal (before the passing of 11 & 12 Vict. c. 31) must state, not only that they were taken touching the settlement of the pauper and on the complaint of the overseers, but what that complaint was. (ERLE, J. dissentiente.)

In this case the caption and form of the examinations was as follows:-"The examination of F. Cooper, one of the overseers, &c., and of M. L., &c., touching the place of the last legal settlement of the said M. L., &c., made and taken upon oath, upon the complaint of the overseers of the poor of the township of Manchester, before us, &c., two of Her Majesty's justices, &c. The said F. C. on behalf of the overseers of Manchester, complains that, &c." The sessions held the examinations sufficient.

Reg. v. The Inhabitants of Gomersal.-QUEEN'S BENCH. upheld objections to proceedings before magistrates for want of jurisdiction appearing in the magistrates, or for want of a lawful occasion appearing on the examinations or order of removal. All examinations which are defective in these respects are objectionable. My brother Erle does not in this opinion agree with the rest of the court. In the case of R. v. Sheffield (after stating the form of the examinations), we think the caption bad, and the sessions wrong in not so holding. Order of sessions quashed. (e)

REG. v. THE INHABITANTS OF EAST STONEhouse. Order of removal-Caption of examinations-Sufficient statement of complaint.

The caption of an examination in support of an order of removal is insufficient if it only states the examination to have been “taken on oath upon the complaint of the churchwardens and overseers of, &c., before, &c., two of Her Majesty's justices, &c., touching the legal settlement of, &c."

In this case the caption of the examination was as follows:-"The examination of A. B., &c., taken on oath, upon the complaint of the churchwardens and overseers, &c., before J. F. and J. I. Esqrs., two of Her Majesty's justices of the peace, &c., this 30th day of September, 1846, touching the legal settlement of J. C., &c." The sessions quashed the order upon the ground that the pauper was rendered irremovable by 8 & 9 Vict. c. 66; she having resided in the removing parish for more than five years, unless the period during which her husband, who was a marine, and who at the time of the application for the order had been absent from the parish, at sea, for six months, was to be excluded in the computation. Pashley and Cor in support of the order of sessions. Rowe and Mowbray, contrà. Cur. adv. vult.

LORD DENMAN, C. J.-Here the caption only states that the examination was taken " on complaint of the overseers touching the legal settlement." The sessions therefore were right in quashing the order, though it appears to have been done on the five years' residence clause. Order of sessions confirmed.

REG. v. THE INHABITANTS OF GOMERSAL.

Order of removal-Caption of examinations-Statement of complaint-Form of notice of chargeability. The caption of an examination in support of an order of removal must show a complaint by the overseers that the pauper is actually chargeable; therefore the statement of a complaint "touching the place of residence, chargeability, and the last place of the lawful settlement” of the pauper, is insufficient.

A notice of chargeability should name the paupers; and it is not enough to refer to them as "the persons named in the order hereunto annexed." In this case two points were raised. First, the caption of the examinations was objected to as insufficient. It was thus :-"The examination of F. B., &c., taken upon the complaint of the overseers of G., touching the place of residence, chargeability, and the last place of the lawful settlement of the said E. B., &c." Secondly, the notice of chargeability was objected to as bad on the face of it for not mentioning the names of the paupers. It was in the following form:-" We, whose

(c) The following cases were governed by this decision: Reg. v. Holywell, Reg. v. St. Thomas, New Sarum, and Reg. v. Witham, in which no complaint was stated in the caption of the examination.