20. Stationery, printing, &c.

"21. Masons, joiners, glaziers, slaters, smith's work, brushes, shovels, &c., probable sundry other charges for church expenses not in the above estimate

"22. Door keeping

"Sundries

The rate made in pursuance of this resolution was assessed and taxed upon the parish of Bishopwearmouth proper. The amount on the face of the rate is 2401. 18. 84d. The rate is headed as follows:-" An assessment for a church-rate of the parish of Bishopwearmouth, in the county of Durham, and for the purposes chargeable thereon according to law, made this 15th day of July, 1858, after the rate of 14d. in *the pound, by the ancient select vestry of the said parish.

"JOHN J. KAYLL, Churchwarden."

[*324

And at the end of it is written and subscribed the following memorandum :

"We the undersigned, being the major part of the members comprising the ancient select vestry of and for the parish of Bishopwearmouth, in the county of Durham, do this 15th day of July, 1858, at our vestry meeting for that purpose duly and legally convened and assembled to rate and tax all and every the inhabitants and parishioners of the said parish of Bishopwearmouth aforesaid, liable to contribute to a church-rate for and towards the necessary repairs of the church of the parish, and for and towards the providing the necessaries for the decent celebration of Divine service and offices therein, and for and towards the other expenses necessary and legally incidental to the office of the churchwardens for the current year, the several sums of money hereinbefore mentioned, being a rate or assessment of 11d. in the pound on the annual value of all rateable messuages, lands, tenements, and heredita

ments.

"J. P. EDEN.
"NATHAN HORN.
"J. S. ROBINSON.
"ANTHONY ETTRICK.
"ROBERT FENWICK."

"JOHN J. KAYLL,
"EDWIN GRAY,
"MATTHEW LEE,

Churchwardens."

As to the rate of 2d. in the pound, made on the 7th of May, 1859, the facts were as follows:

On the 26th of April, 1859, a meeting of the select vestry was held, at which there were present the Rev. J. P. Eden, the rector, Ralph Carr, Robert Fenwick, W. R. Robinson, J. S. Robinson, and C. M. Webster, and the churchwardens, Edwin Gray and John James *Kayll; and these two last-mentioned persons were re-elected churchwardens for the ensuing year.

[*325

On the 7th of May, 1859, a meeting of the select vestry duly con

vened was held, at which were present The Rev. J. P. Eden, the rector, W. R. Robinson, R. Fenwick, C. M. Webster, Ralph Carr, Nathan Horn, J. Hartley, and the churchwardens Kayll and Gray. At this meeting a rate of 2d. in the pound was levied on the parish of Bishopwearmouth proper. The following is a copy of the estimate:

"Estimate of the expenses for the year 1859.

"New surplices, washing surplices, &c.

"Sexton, constable, attendants, cleaning the church, &c.

'Bell-ringers and sundries connected therewith

'Warming and lighting

Repairs, masons, joiners, painters, smiths, &c. "Rate-books

£ s. d. 400 500

15 0 0

50 0 0

20 0 0 40 0

5 0 0 50 0 0 16 0 0 800

10 0 0

28 0 0

£251 0 0"

At the foot of the rate, which on the face of it raises the sum of 4017. 128. 5d., the following memorandum is written and subscribed:"We, the undersigned,' being the major part of the members composing the ancient select vestry of and for the parish of Bishopwearmouth, in the county of Durham, do this 7th of May, 1859, at our vestry meeting for that purpose duly and legally convened and assembled, rate and tax all and every the inhabitants and parishioners of the said parish of Bishopwearmouth *aforesaid liable to contribute to a church-rate *326] for and towards the necessary repairs of the church of the parish, and for and towards the providing the necessaries for the decent celebration of Divine service and offices therein, and for and towards the other expenses necessary and legally incident to the office of churchwardens for the current year, the several sums of money herein before mentioned, being a rate or assessment of 2d. in the pound on the annual value of all rateable messuages, lands, tenements, and hereditaments.

"J. P. EDEN, rector. "JOHN J. KAYLL,Churchwardens."

"JAMES HARTLEY.

"NATHAN HORN.

"RALPH CARR.

"CHRISTR. M. WEBSTER."

"EDWIN GRAY,

All the above three rates were duly allowed and confirmed by the consistorial court of the Bishop of Durham.

Under the circumstances, it was contended by the appellant, that, if the said ancient select vestry ever had a legal existence, it had become defunct by the severance of the parish; and that it was not a legally constituted vestry when the said rates or any of them were levied, because many of the vestrymen were not parishioners of the parish for which the vestry was constituted and acted at the time the rates were made. It was further objected that the churchwardens were not elected nor the rates granted by a legal majority of the select vestry; and other arguments of a similar character were used. It was also objected that the d. rate was excessive, and that the 11d. rate included items not

chargeable upon the poor-rate. It was also urged that the mortgagedebt ought to have been paid off in 1856. For these and various other *reasons, the appellants contended that the said rates were

invalid.

[*327

Being of opinion that the three rates were valid upon the face of them, the justices made an order on the appellant to pay the same in terms of the act 7 & 8 W. 3, c. 34, s. 4; at the same time stating that they declined to enter into the question as to the invalidity of the rates by reason of the alleged illegal constitution of the ancient select vestry, either originally, or by reason of the severance of the parish of Bishopwearmouth, as set out in the case.

The question for the opinion of the court was, whether, under the circumstances above mentioned, the appellant was liable to pay the said three several rates, or any one or more of them, and, if so, which of them?

If the court should be of opinion that he was liable, then the order or orders, as the case might be, was or were to be confirmed.

Wills, for the appellant.-As to the rates made on the 15th of July, 1858, one was an ordinary church-rate; the other assumes to have been made in pursuance of the Church Building Acts, for the purpose of paying the principal and interest of money borrowed for the repair of the church. The borrowing took place under the authority of the 14th section of the 59 G. 3, c. 134, which enacts "that it shall and may be lawful for the churchwardens of any parish, with the consent of the vestry, or persons possessing the powers of the vestry, and with the consent of the bishop and incumbent, and they are hereby authorized and empowered, to borrow and raise upon the credit of the church-rates or of any rates made under the recited (58 G. 3, c. 45) or this act, of any such parish, such sum or sums of money as shall be necessary for defraying the expense of repairing any churches or *chapels; and they are hereby empowered and required, in any case in which such [*328 money shall have been borrowed, to raise by rate a sufficient sum from time to time to pay the interest of the money so borrowed and not less than 10 per cent. of the principal sum so borrowed, out of the produce of such rates, until the whole of the money so borrowed shall be repaid." In The King v. The Churchwardens of Dursley, 5 Ad. & E. 10 (E. C. L. R. vol. 31), 6 N. & M. 333 (E. C. L. R. vol. 36), it was held that the loan ought to be raised at the time when the repairs are done, and the laying of rates for the repayment should commence immediately, and be continued so as to pay off the debt by ten annual instalments. And see The King v. The Churchwardens of St. Michael, Pembroke, 5 Ad. & E. 603, 1 N. & P. 69 (E. C. L. R. vol. 36). Here, the rate, which seeks to raise 2007. in one year is clearly excessive. [ERLE, C. J.-This matter was considered in The Queen v. The Churchwardens of St. Michael, Southampton, 6 Ellis & B. 807 (E. C. L. R. vol. 88). The lender may have all the principal in one year, provided he has been guilty of no laches.] Here, the deed provides for the payment of the principal money at the rate of 1007. per annum : if that had been carried out, the whole debt would have been paid off in 1856; whereas, through the default of the churchwardens, another body of men is now called on to pay the debt. [WILLIAMS, J.-There is no covenant to pay the money, which the lender could enforce.] He might have compelled the church

wardens, by mandamus, to make a rate. Besides, Bramwell is himself a member of the select vestry. Another objection to this rate, is, that it is made upon the whole parish, including those which had been severed. from Bishopwearmouth proper. [ERLE, C. J.-It certainly seems strange that the rate should be made upon the whole parish after the severance, and charged in part on a parish deriving no benefit from the rate. *WILLIAMS, J., referred to Hughes, app., Denton, resp.,

*329] 5 C. B., N. S. 765 (E. C. L. R. vol. 94).] By the 71st section

of the 58 G. 3, c. 45, the severed district was to remain subject to the repair of the mother church for twenty years. It may be a question, however, whether that liability is not put an end to by the 14th section of the 19 & 20 Vict. c. 104 (passed July 29, 1856), which enacts that "whensoever or as soon as the banns of matrimony and the solemnization of marriages, churchings, and baptisms according to the laws and canons in force in this realm are authorized to be published and performed in any consecrated church or chapel to which a district shall belong, such district not being at the time of the passing of this act a separate and distinct parish for ecclesiastical purposes, and the incumbent of which is by such authority entitled for his own benefit to the entire fees arising from the performance of such offices without any reservation thereout, such district or place shall become and be a separate and distinct parish for ecclesiastical purposes, such as is contemplated in the 15th section of the first-recited act (6 & 7 Vict. c. 37), and the church or chapel of such district shall be the church of such parish, and all and singular the provisions of the firstly and secondly (7 & 8 Vict. c. 94) recited acts (so amended by this act) relative to new parishes, upon their becoming such, and to the matters and things consequent thereon, shall extend and apply to the said parish and church as fully and effectually as if the same had become a new parish under the provisions of the said last-mentioned acts." Another objection to this rate, is, that, although the resolution of the vestry is, to make a rate to pay off the balance due to Bramwell, the heading describes it as being made for a totally different purpose,-viz., "An assessment for a church-rate of the parish of *330] Bishopwearmouth, and for the purposes chargeable thereon *according to law." By the usual memorandum at the foot of the rate, it is described as being made "for and towards the necessary repairs of the church of the parish, and for and towards the providing the necessaries for the decent celebration of Divine service and offices therein, and for and towards the other expenses necessary and legally incident to the office of churchwarden for the current year. It has been held more than once that this objection is one of substance, and not of mere form. A rate made partly for common law purposes and partly under the Church Building Acts cannot be legally enforced: The Queen v. Abney, 3 Ellis & B. 779 (E. C. L. R. vol. 77). The purpose and object of every rate must appear upon the face of it: The Queen v. Byrom, 12 Q. B. 321 (E. C. L. R. vol. 64). There, the rate purported by its heading to assess the parishioners "for and towards the repairs of the church and other incidental charges of the said parish ;" and it was held bad. Lord Denman there says: "The rate appeared by its title not to be a church-rate; for, such a rate must be solely for the purposes of the church; and it cannot otherwise be enforced by summary jurisdiction. By the words for and towards the repairs of the church and

other incidental charges of the said parish and hamlet,' I should, if in the situation of the magistrates, have thought I was called upon to enforce something else than the provision for repairs and other needs of the church and I should have considered this a ground for not interfering. The object of the statute was, to simplify proceedings: to sanction the course here taken would be increasing litigation. The resolution of the vestry should be passed for the purposes of the church only; and that ought to appear on the rate itself." And Coleridge, J., said: "It is new to me to hear the title of a rate spoken of as unimportant. White v. Beard, 2 Curt. Eccl. Rep. 480, proves no such *thing. The title is important for two purposes,-to show the objects of the rate, and to show the authority of those who make [*331 it." Here, the title is defective in both respects. The common-law rate made on the same day has the same heading and the same memorandum at the foot of it. [If the validity of the rate was disputed, what power had the justices to entertain the application?] It is said that the appellant, being a Quaker, could not contest the validity of the rate in the ecclesiastical court. The statutes applicable to this subject are, the 7 & 8 W. 3, c. 34, s. 4, the 1 G. 1, stat. 2, c. 6, s. 2, the 53 G. 3, c. 127, s. 6, and the 5 & 6 W. 4, c. 74, s. 2. The first of these recites, that, "by reason of a pretended scruple of conscience, Quakers do refuse to pay tithes and church-rates," and enacts, "that, where any Quaker ehall refuse to pay or compound for his great or small tithes, or to pay any church-rates, it shall and may be lawful to and for the two next justices of the peace of the same county (other than such justice of the peace as is patron of the church or chapel whence the said tithes do or shall arise, or any ways interested in the said tithes), upon the complaint of any parson, vicar, farmer, or proprietor of tithes, churchwarden or churchwardens, who ought to have, receive, or collect the same, by warrant under their hands and seals, to convene before them such Quaker or Quakers neglecting or refusing to pay or compound for the same, and to examine upon oath, or in such manner as by this act is provided, the truth and justice of the said complaint, and to ascertain and state what is due and payable by such Quaker or Quakers to the party or parties complaining, and by order under their hands and seals to direct and appoint the payment thereof, so as the sum ordered as aforesaid do not exceed 10.; and, upon refusal by such Quaker or Quakers to pay *according to such order, it shall and may be lawful to and for [*332 any one of the said justices, by warrant under his hand and seal, to levy the money thereby ordered to be paid by distress and sale of the goods of such offender, his executors or administrators, rendering only the overplus to him, her, or them, necessary charges of distraining being thereout first deducted and allowed by the said justice:" and an appeal to the sessions is given to any person aggrieved by such judgment. The 2d section of the 1 G. 1, stat. 2, c. 6, recites, that, by the 7 & 8 W. 3, a remedy is provided for the recovery of tithes and church-rates where any Quaker should refuse to pay the same, and enacts "that such remedy shall be and is hereby extended, and the like remedy shall and may be had and used against any Quaker or Quakers for the recovering of any tithes or rates, or any customary or other rights, dues, or payments belonging to any church or chapel, which of right by law and custom ought to be paid for the stipend or maintenance of any minister