Page images

1847, *apply by writing under their respective hands to the *491]

justices to have arbitrators appointed : at which sessions the said Honourable and Reverend Charles Dundas, then and still being such Rector, appeared, and opposed the appointing of arbitrators, on the ground that the application was too late, and ought to have been made in the year then last preceding: And that the justices, at the last-mentioned sessions, refused to appoint arbitrators. The writ therefore commanded the justices to enter continuances to the next general quarter sessions upon the said application, and

the said application, and at such quarter sessions to make an order appointing arbitrators: or that they should show cause, &c.

Return, admitting the facts alleged in the writ, down to the order of sessions in 1825, under which the increased rents had become payable and been paid “from the 5th day of January, A. D. 1826, being the halfyearly day of payment next after the making of the said order.” The return then stated : « That no application for varying the same hath been made, nor hath any notice of any such application been given, since the making of the said order, save as hereinafter mentioned; namely, that in the month of January now last past, but not before, the Honourable and Reverend Charles Dundas being then and still rector of the said parish of Epworth, the said John Girdham," &c., “ then being such owners and proprietors and so assessed as by the said writ is suggested, did give the said notice,” &c., of their intention to apply, &c. (as stated in the writ): that the said John Girdham, &c., did, at the last-mentioned sessions, holden on 9th April, 1847, apply by writing, &c. (as in the writ): That the then rector appeared, and opposed the

appointing of arbitrators on *the alleged ground that the said *492)

application was then too late, and ought to have been made in the year then last preceding, and that the said justices then and there assembled had no legal power to make such appointment: and thereupon the said justices, at the last-mentioned sessions then and there assembled, upon hearing of both the said parties and on careful consideration of all the said premises as was their duty in that behalf, did adjudge and determine that the said application was made too late, and that they the said justices then and there assembled had no legal power to entertain the said application : and thereupon” they dismissed the same: which is the said refusal and neglect, &c.

Demurrer, assigning several causes. The material ones were, that it did not appear by the return that the application was too late : and that the contrary appeared. It was also stated that the appointment of arbitrators under the statute was a ministerial act, and the decision of the justices not conclusive, and therefore that the return was bad in stating the decision as if it were conclusive. Joinder.

The demurrer was argued in this vacation,(a) by Hill for the Crown, and by Sir F. Thesiger for the defendants, who cited 7 Bac. Abr. 452,

(a) February 8th. Before Lord DENMAN, C. J., and Pattesen, J.

tit. Statute (I) 2, 7th ed. (for the position that one part of a statute should be construed by another, such construction being “ex visceribus actûs”), and Stevens v. Duckworth, Hardr. 338, 343, 4 (dicta of Atkins, B., as to the construction of statutes). No further report of the argument is considered necessary.

Cur. adv. vult. *Lord DENMAN, C. J., now delivered judgment. The question raised in this case is, whether an application to

[*493 the Court of Quarter Sessions, held after Easter, 1847, to appoint arbitrators to ascertain the price of a bushel of wheat for the last twentyone years under the provisions of an Enclosure act, 35 G. 3, c. 107, was too late. The act states that it had been agreed that a sum of 4201. (subject to the variation after mentioned) should be paid to the rector in lieu of the tithes of old enclosed lands, and a corn-rent, to be fixed by the Commissioners, in lieu of the tithes of the newly enclosed lands. It directs the Commissioners named in the act to ascertain, and to set forth in their award, the average price of a bushel of wheat for twentyone years before the passing of the act; and to set forth what quantity of such wheat would, in their judgment, according to such average price, be equal in value to the agreed annual sum of 4201.: so that, after the award, the tithes would in truth be an ascertained quantity of wheat, the money value of which might, of course, fluctuate from time to time. In order to meet such fluctuations, the 71st section provides for the reascertainment of the value of a bushel of wheat at intervals of twentyone years, if desired either by the rector or any tithe payer to a certain amount.

It was contended by the prosecutors of this writ: first, that neither party was absolutely bound to the precise period of twenty-one years; (a) but that, supposing such period to have passed without any application for a reascertainment, another period of twenty-one years was not to run on and bind the parties, and either of *them might in any

[*494 year make the application. We think that is not the true construction of the act. We do not consider the legislature to have attached any importance to the particular period of twenty-one years in preference to any other period; but that the obvious meaning was to fix some recurring period (in itself necessarily arbitrary) at which alone any change should be made; so that parties might know clearly on what terms they stood as to the amount of payment, and not be kept in perpetual suspense, or be watching for a favourable time on one side or the other to make a change.

The second question, therefore, arises : namely, whether the Easter sessions, 1847 (at which the application was made), was at the expiration of a period of twenty-one years, according to the true construction of the act, or whether that expiration took place at the Easter Sessions, 1846.

(a) Hill contended that the language of s. 71 was wholly enabling; and he relied upon the absence of negative words.


Now, the act provides that any application to the Sessions to appoint arbitrators to reascertain the average value of a bushel of wheat shall be made to the Easter sessions, previous notice of intention to apply having been given in January; that the arbitrators shall be appointed and shall make their report at the July sessions; and, if the difference in value from the previous ascertainment exceeds 3d., the sessions shall direct the

money for the next twenty-one years to be increased or decreased in proportion from the half-yearly day of payment next after such order, and so from time to time at the end of every twenty-one years for ever.

As the Easter sessions were fixed for the time of application, and as the time of year when the Commissioners' award would be made was

uncertain when the act *passed, the first period could not well *495]

be exactly twenty-one years, unless indeed the award had happened to have been made on the very day of an Easter session; therefore the act provides that the first application shall be made at the Easter sessions next after twenty-one years to be computed from the making the award: but no such difficulty occurs as to any subsequent application, because a precise period of twenty-one years from Easter sessions to Easter sessions would occur, saving the variation of a few weeks in the time of holding those sessions in different years. The notice of application would indeed be given in January, whilst the money payment remains unaltered: but that must necessarily be so in any view of the case; for, until an alteration is made, the money payment previously fixed must continue; and the notice of application must precede the alteration itself.

The prosecutors, however, contend that the notice is not to be given till the January after the period of twenty-one years has expired, though there are no words in the act to that effect. If so, the alteration can only be made at the end of every twenty-two years; whereas the act says that it shall be at the end of every twenty-one years. Unless, therefore, those words of the act are disregarded, the notice must be given in January prior to the end of the twenty-one years, and the alteration wade at that end.

In argument has been raised from the use of the words that the altered rents should, from the half-yearly payment next after such order, remain and continue; and it was discussed whether the word “ from” is to be taken inclusively or exclusively: if inclusively, it was said that the effect would be to make the alteration retrospective. *496]

*It is quite immaterial whether the word be taken inclusively

or exclusively. It must always be taken in the same sense, whichever be the right one, as regards every successive period of twentyone years and every alteration; and therefore the continuance of every fixed payment would be for twenty-one years exactly, at whatever time of the year it might begin. We cannot, upon consideration of the act, see that there is



about the true construction. That contended for by the return makes the act consistent and intelligible, and conforms to the literal and plain meaning of the words of the act with regard to all periods subsequent to the first: which, as we have already explained, was necessarily extended somewhat beyond twenty-one years. That contended for by the prosecutors is inconsistent with the words and plain meaning of the act, making the period twenty-two years instead of twenty-one as fixed by the act. Neither is there any reason in the nature of the provisions of the act, or in their operation upon the interest of the parties, which in any way calls upon us to put a constrained and unnatural construction upon the words. The judgment must be for the defendants.

Judgment for defendants.



(Error from the Queen's Bench.)


A writ of attachment in Chancery for non-payment of costs is in the nature of final process : and therefore an officer may justify the taking and detaining under such attachment without show

ing any return of the writ. Where, under stat. 5 & 6 Vict. c. 22, s. 2, the keeper of the Queen': prison, by warrant from the

Chief Justice of Q. B., received from the warden of the Floet the plaintiff, being then in custody under such writ of attachment: Held, that in justification to an action of false imprisonment, the keeper need not show that the plaintiff was committed by warrant to the custody of the warden, the writ being itself a justification, and the statute being applicable, though there was no commitment. It is no objection to such plea of justification that the writ in Chancery appears to be returnable

immediately, though there is no averment as to residence, so as to bring the case within the

Fords of stat, 11 G. 4 & 1 W. 4, c. 36, s. 15. (3).
Nor that the writ is not stated to have been endorsed with the name of the solicitor.

The plaintiff in error (the plaintiff below) declared, in the Court of Queen's Bench, in trespass, for assaulting him, and seizing, imprisoning, and detaining him in prison.

Plea. That, before the passing of an act, &c. (5 & 6 Vict. c. 22), “ for consolidating the Queen's Bench, Fleet, and Marshalsea Prisons, and for regulating the Queen's Prison,” and before the committing, &c., to wit, on 16th June, 1840, by a certain writ then issued out of and by Her Majesty's High Court of Chancery at Westminster in a certain cause then depending in the said Court, wherein one Jesse Oldfield was the plaintiff, and the now plaintiff was defeudant, and wherein the said J. Oldfield was plaintiff, and one Benjamin James was defendant, by original and supplemental bills, Her said Majesty commanded the then Warden of Her said Majesty's prison of the Fleet to attach the now plaintiff, so as to have him before Her said Majesty in her said Court of Chancery,



immediately, wheresoever the said Court should *then be, there

to answer to Her said Majesty as well touching a contempt which he (as it was alleged) had committed against Her said Majesty, as also such other matters as should be then and there laid to his charge, and, further, to perform and abide.such order as the said Court should make in that behalf; and that the said Warden should thereof fail not, and should bring that writ with him: on which said writ was then duly endorsed in manner following, that is to say: “ By the Court, for not paying the sum of 411. 38. 9d. costs to the said Jesse Oldfield in the said cause:” and which said writ, so endorsed, was then delivered to William Robert Henry Brown, who then was, and long after continued to be, Warden of the said Prison of the Fleet, to be executed: That afterwards, and before the passing of the said act, and before the committing, &c., to wit, on, &c., the said W. R. H. Brown, then being the Warden, &c., by virtue and in pursuance of the said writ, attached the now plaintiff, as by the said writ commanded : and he, the said W. R. H. Brown, being and continuing such Warden, detained the said plaintiff William Cobbett in the custody of him the said Warden from thence continually until the said Warden delivered over the said W. Cobbett to Thomas Chapman, the then Marshal of the Queen's Prison, in the said act mentioned, as in this plea after mentioned. That, after the passing of the said act, and before the committing, &c., to wit, on 7th November, 1842, the Right Honourable Thomas Lord DENMAN, then being the Lord Chief Justice of the Court of Queen's Bench at Westminster, made his warrant under his hand, directed to the said T. Chapman, then being the Marshal,

&c., to the said W. R. H. Brown, *then being the Warden, *499]

&c., and whom else it might concern ; and thereby required and commanded the said W. R. H. Brown, then being such Warden, to deliver into the custody of the said T. Chapman, then being the Marshal, &c., the said plaintiff W. Cobbett, he the said W. Cobbett then remaining and being in the custody of the said Warden, and by virtue of the said writ, as in this plea aforesaid. That afterwards, and before the committing, &c., and whilst the plaintiff remained and was in the custody of the said Warden under and by virtue of the said writ, to wit, on, &c., the said warrant of the said Lord Chief Justice was delivered to the said W. R. H. Brown, then being such Warden as aforesaid; and the said Warden, in obedience to and in pursuance of the said warrant, then delivered the plaintiff into the custody of the said T. Chapman, then being the Marshal, &c.: and the said Warden, at the same time, delivered to the said Marshal the said writ in this plea aforesaid : and the said T. Chapman, then being such Marshal, &c., then took and received the plaintiff into his custody, together with the said writ: and, thereupon, to wit, on, &c., the said T. Chapman, then being such Marshal

, forth with conveyed the plaintiff in his custody, under and by virtue of the said writ and warrant, to the said Queen's Prison, and there, in the

« EelmineJätka »