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within stat. 13 & 14 C. 2, c. 12, sect. 21. It may be said that the justices should have found this as a fact; Rex v. Newell, 4 T. R. 266: they have, however, in substance found the fact by confirming the rate. And the practice appears by the case to have been to treat these as separate parishes, and to keep the rates separate in every respect, except that, by a sort of irregular anticipation of a Poor law union, the officers of Whaplode Drove paid the parish for the use of their workhouse for in-door relief. [WIGHTMAN, J.-The statement in the case is scarcely consistent with that explanation; for, if that was so, there never could have been a balance due to Whaplode Drove.(a)] The statement does not show intelligibly how a balance could be payable to them in any way. The proceedings of the Poor Law Commissioners, acquiesced in by the inhabitants, have some weight as evidence of reputation that the districts were separate.
Pashley and Worlledge, contrà, relied upon the payment of tithes to the vicar, the want of a second overseer for Whaplode Drove before the year 1785, the common workhouse, and the community, in effect, of the fund for the relief of the poor, and the mode of keeping the accounts, to show that the rate was bad; and they cited Rex v. Newell, 4 T. R. 266, Malkin v. Vickerstaff, 3 B. & Ald. 89 (E. C. L. R. vol. 5), Bastock v. Ridgway, 6 B. & C. 496 (E. C. L. R. vol. 13), and Price v. Quarrell, 12 A. & E. 784 (E. C. L. R. vol. 40). They referred to Forest of Dean v. Linton, 2 Salk. 487, Weeden v. *Walker, 2 Roll. Rep. 160, and [*361 Rudd v. Morton, to show that a place must both be a reputed parish and also have a full complement of overseers, to be within stat. 43 Eliz. c. 2: and they distinguished Hilton v. Pawle, Cro. Car. 92, and Nichols v. Walker, Cro. Car. 394, S. C. 1 (W.) Jones, 355, from the present case on this ground.
The judgment of the Court was delivered in this vacation (February 24th) by
WIGHTMAN, J., who, after stating the question, and the substance of the case as above (pp. 355-357, antè), said:
Under all these circumstances, we cannot but see that the fund for the maintenance of the poor has always been in substance and reality a joint fund, notwithstanding the mode in which the parts of it have been 'assessed and collected, and even applied during the year. The having only one workhouse, the accounting at the end of the year, and the submitting the district accounts to the vestry of the parish, are conclusive facts, and bring this case within the principle of many decided cases, especially Rex v. Newell, 4 T. R. 266, Bastock v. Ridgway, 6 B. & C. 496, Malkin v. Vickerstaff, 3 B. & Ald. 89 (E. C. L. R. vol. 5), Rex v. Justices of Salop, 3 B. & Ad. 910 (E. C. L. R. vol. 23), Regina v. Justices of Worcestershire, 12 A. & E. 28 (E. C. L. R. vol. 40), Regina v. Marriott, 12 A. & E. 35, note (c) (E. C. L. R. vol. 40), Price v. Quar
(a) See p. 357, note (b), antè.
rell, 12 A. & E. 784 (E. C. L. R. vol. 40). Therefore the statute 13 & 14 C. 2 does not apply to this case. Whaplode and Whaplode Drove, *notwithstanding the largeness of their extent, might have had, and have had, the benefit of the statute 43 Eliz. c. 2.
*362] But it is said that Whaplode Drove was, before and at the time of the passing the statute of 43 Elizabeth, a parish or reputed parish, and therefore entitled to be separate from Whaplode in regard to the maintenance of the poor. To establish this point, reliance was placed on the cases of Attorney-General v. Brereton, 2 Ves. sen. 425, Hilton v. Pawle, Cro. Car. 92, Nichols v. Walker, Cro. Car. 394, S. C. 1 (W.) Jones, 355, Forest of Dean v. Linton, 2 Salk. 487, Rudd v. Foster, 4 Mod. 157, S. C. nom. Rudd v. Morton, 2 Salk. 501. These cases have all been cited and commented upon at different times, and especially in Price v. Quarrell, 12 A. & E. 784 (E. C. L. R. vol. 40). They show that, where the ecclesiastical separation is complete, as it certainly is in the present case, with the exception of tithes, the districts may be separate parishes or reputed parishes; but not that they necessarily must be. The inhabitants of a chapelry may be discharged from contributing to the repair of the parish church without ceasing to be part of the parish: and the entire separate maintenance of the poor has always been considered as an important ingredient in determining whether a district was a parish or a chapelry. That ingredient we consider to be wanting here: and, when to that is added the very strong fact of the lands in the district of Whaplode Drove paying tithes to the vicar of Whaplode, we are constrained to say that in our opinion the evidence shows that Whaplode Drove was *not before and at the time of the passing of stat. 43 Eliz. c. 2, a parish, or reputed parish.
What has happened since the passing of stat. 4 & 5 W. 4, c. 76, does not weigh with us in coming to our conclusion. The Poor Law Commissioners do not profess by any act of theirs to alter, nor could they by law alter, the relation in which Whaplode and Whaplode Drove stood to each other. They have acted on the supposition that by law those districts were separated from each other; which supposition we think erroneous and the refusal of the auditor, under stat. 7 & 8 Vict. c. 101, to allow the payments which had usually been made cannot have any legal effect whatever.
Upon the whole we-that is, my brother PATTESON and myself, before whom only this case was argued are of opinion that the question put to the Court by the Court of Quarter Sessions must be answered in the negative, and the rule to quash the rate made absolute.
Rule absolute to quash the rate.(a)
(a) Reported by H. Davison, Esq., and C. Blackburn, Esq.
IN THE EXCHEQUER CHAMBER.
(Error from the Queen's Bench.)
RYALLS v. The QUEEN. Feb. 7.
Reported, 11 Q. B. 795 (E. C. L. R. vol. 63).
*The QUEEN v. The Justices of LANCASHIRE. [*364 Reported, 12 Q. B. 305 (E. C. L. R. vol. 64).
The QUEEN v. The Inhabitants of BRECKNOCKSHIRE. Reported, 15 Q. B. 813 (E. C. L. R. vol. 69).
The Churchwardens and Overseers of the Parish of BIRMINGHAM v. SHAW and MELSON, Esquires, and WILLIAMS.
Reported, 10 Q. B. 868 (E. C. L. R. vol. 59).
BAILEY v. HARRIS.
Reported, 12 Q. B. 905 (E. C. L. R. vol. 69).
IN THE EXCHEQUER CHAMBER.
(Error from the Queen's Bench.)
CLEMENT AUGUSTUS GREGORY PETER LEWIS, Baron de
Error on a judgment for the Crown in a petition of right may be brought in the Exchequer
moneys to which the suppliant is entitled: Held, by the Court of Exchequer Chamber affirming the judgment of Q. B.,
That there was no ground for the petition of right, and the suppliant could take nothing, since he had no right except by claiming according to the statute, and the statute disposed of the whole fund.
Held, also, that the Queen's Bench had power to give judgment on the petition, and that the judgment was right in form.
AFTER the judgment of the Court of Queen's Bench in this case (Baron de Bode's case, 8 Q. B. 208), the suppliant died intestate; October 2d, 1846. His *son and administrator brought a writ of error in the Exchequer Chamber on the judgment in B. R. The assignment of errors was as follows.
"Afterwards, to wit, on," &c. (22d June, 1847), "before," &c., "in the Exchequer Chamber, comes Clement Augustus Gregory Peter Lewis, Baron de Bode, the son and administrator with the will annexed of the said suppliant Clement Joseph Philippe Pen, Baron de Bode, deceased, by Henry Seymour Westmacott his attorney, and says," &c. (common assignment of error). "And this he the said C. A. G. P. L., Baron de Bode, so being such administrator as aforesaid, is ready to verify. Whereupon the said C. A. G. P. L., Baron de Bode, as such adminis trator as aforesaid, prays that the judgment aforesaid may, for the error aforesaid and for other errors in the said record and process being, be reversed, annulled, and for nothing esteemed; and that the AttorneyGeneral of the said Lady the Queen may rejoin to the error aforesaid; and that the Court," &c., "now here may proceed to the examination as well of the record and process aforesaid as of the matters above for error assigned."
In Michaelmas term (November 9th) 1847, Sir John Jervis, AttorneyGeneral, moved to quash the writ of error on several grounds. He stated, as preliminary objections, that the writ had been sued out without a fiat, and that the transcript went only as far as the verdict, and did not contain the judgment: but he waived these objections, and consented that the writ of error should be amended without a certiorari: which was accordingly done. On the other grounds a rule nisi was granted: and, in Michaelmas vacation, 1847,
*Manning, Serjt., Hill, Mellor, and Anstey showed cause.(a) *366] It is objected, on behalf of the Crown, first, that a writ of error does not lie for the administrator of a suppliant on a petition of right; and, secondly, that, if he could be made party to the proceeding by scire facias, none has issued in this case. These points may be considered together. In an ordinary case an executor cannot, without a scire facias, sue out execution upon a judgment recovered by his testator; but he needs not resort to a scire facias in order to recover: he may bring an action of debt on the judgment, suggesting that he is executor; in which
(a) November 27th. Before WILDE, C. J., MAULE and WILLIAMS, Js., and PARKE, ALDERSON, ROLFE, and PLATT, BS.
action the defendant may deny the representative character, or may plead matter in answer, as release or payment. And an executor wishing to call in question a judgment has no occasion for a scire facias; he needs. only to sue out a writ of error, describing himself as executor. Of the writs of scire facias used in proceedings before a court of error, the scire facias quare executionem non is the writ of the defendant in error to compel the plaintiff to proceed; the scire facias ad audiendum errores is that of the plaintiff in error to force on the defendant. If it is contended that in the present case there ought to have been a scire facias of the latter kind, that is at least no objection to the writ of error itself. And a scire facias ad audiendum errores does not lie in the Exchequer Chamber. (a) (Sir J. Jervis, Attorney-General.—The argument for the Crown is that there is no kind of scire facias to which the plaintiff in error is entitled; and, therefore, the writ of error cannot lie. *Except on scire facias [*367 the Crown could not allege matters in answer which might have arisen since judgment. And there could not here be a scire facias quare executionem non.) That is an argument against even the maintenance of a petition of right. And, further, it is laid down in Fitz. N. B. 21, tit. Writ de Error (H), that, if a false judgment be given for the King in any suit or action, the party grieved shall have a writ of error, and assign his errors, without suing forth any scire facias against the king ad audiendum errores, because that the king is always present in Court." [WILDE, C. J.-What is the proceeding in the case of the Sovereign?] A rule served on the Attorney-General. [MAULE, J.— Can he deny the representative character on a rule?] He may plead in abatement; perhaps he may plead in bar, or demur. The writ of error is analogous to a declaration. [PARKE, B., referred to Reg. Gen. Hil. 1 W. 4, 13, 5 B. & Ad. xvi. (E. C. L. R. vol. 27), (a) and the note upon it in Jervis's New Rules, P. 109, note, (a), 4th ed.] That rule is meant for the case where a party brings error and dies, and the executor proceeds. [PARKE, B.-The writ would abate unless error had been assigned; and the rule can hardly have been framed with a view to the fraction of time between assignment of errors and joinder. It seems rather to be intended generally for cases where the executor was not party to the original suit.] A scire facias is not necessary to enable the Crown to dispute the executor's right to sue in the Court of Error: that may be done by pleading to the assignment of errors: Scroggs v. Lord Mordant, Cro. Eliz. 294, S. C. as Lord Mordant v. Bridges, Moore, 686, Com. Dig. Pleader *(3 B. 19), Street v. Hopkinson, 2 Stra. 1055, S. C. Ca. K. B. Temp. Hardwicke, 345, Champernow v. [*368 Godolphin, Cro. Jac. 160, are instances. Many authorities show that, before the rule of Hil. 1 W. 4, 13, 5 B. & Ad. xvi (E. C. L. R. vol.
(a) 2 Tidd. 1173, 9th ed.
(b) That no sci. fa. ad audiendum errores shall be necessary unless in case of a change of parties.