1869 THE QUEEN v. CAMBRIAN RAILWAY Co. is a nullity, are they compelled to incur costs for no purpose? The prosecutor, by demurring, admits that the allegations in the return are true.] But, if true, they are no answer after the defendants have gone before the arbitrator. [COCKBURN, C.J. The writ itself alleges that they proceeded under protest.] The protest amounts to nothing; it has been decided that the award does not determine the legal right, but only the quantum of compensation, if any is recoverable; so that the defendants, without any protest, could have afterwards disputed the right. The proper course was for the defendants to refuse to take any step in the matter, and then, on a mandamus to them to issue their warrant, the point whether the prosecutor was entitled to any compensation might have been raised. [LUSH, J. The prosecutor chose to proceed by arbitration; and if the company had refused to appoint an arbitrator, the prosecutor might have proceeded ex parte, in which case the parties would have been in precisely the same position as at present. If it is conceded that a company may raise the legal question, whether the claimant's land, &c., has been injuriously affected at some stage or other, is it not competent to them to do so at the present stage, and so avoid the useless expense of taking up the award, and then leaving the prosecutor to bring his action? COCKBURN, C.J. If the prosecutor succeeds on the traverse to the return, he will get a peremptory mandamus.] No doubt. But that course is attended with this inconvenience, he may still have to bring an action on the award, to which the defendants can again set up the same defence, and the prosecutor may thus have to try the same question twice. All the steps having been regularly taken by both parties, the last step ought to be taken of taking up the award. [COCKBURN, C.J. The claimant can take up the award.] That is doubtful; the words of s. 35 are that the arbitrator shall deliver his award to the prosecutors, and they are at their own expense to furnish a copy to the other party. It is too late now for the defendants to say that the claimant is not entitled to any compensation. 1869 [LUSH, J. The prosecutor does not say that the defendants are estopped. If by their proceedings the defendants are estopped THE QUEEN from raising this point, he should have raised the estoppel on the record.] As a point of law on this record, the claimant may or may not be entitled to compensation. [COCKBURN, C.J. It is admitted by the demurrer that he is not entitled. LUSH, J. By s. 68, the very foundation of the jurisdiction to proceed by arbitration, or otherwise, is the fact that the claimant is "entitled" to compensation.] There need not be a clear absolute right; a primâ facie case is sufficient. At all events, this question should be raised in an action on the award, according to the universal practice up to the present time. McIntyre, for the defendants, was not heard. COCKBURN, C.J. There must be judgment for the defendants. LUSH and HANNEN, JJ., concurred. v. CAMBRIAN RAILWAY CO. Judgment for the defendants. Attorney for prosecutor: Charles Wilkin. Attorneys for defendants: N. C. & C. Milne. THE QUEEN, ON THE PROSECUTION OF THE OVERSEERS OF ST. MARY, April 21. CARDIFF, RESPONDENTS, v. THE GREAT WESTERN RAILWAY COM PANY, APPELLANTS. Poor-rate-Valuation List-Appeal against Second Rate—Second Notice of Objection required under Union Assessment Committee Amendment Act, 1864 (27 & 28 Vict. c. 39), s. 1. By 27 & 28 Vict. c. 39, s. 1, it is enacted that before any appeal shall be heard by any sessions against a poor-rate, the appellant shall give twenty-one days notice, with the grounds, to the assessment committee: provided, that no person shall be empowered to appeal to any sessions against a poor-rate made in conformity with the valuation list approved by the committee, unless he shall have given the committee notice of objection against the list, and shall have failed to obtain such relief in the matter as he deems just. The appellants, having been assessed to a poor-rate in conformity with a valua 1869 THE QUEEN V. GREAT WESTERN RAILWAY CO. tion list, gave notice to the committee of their objection to the list, but the committee refused to alter the list, and on appeal the rate was confirmed, subject to a case. While the case was pending, a second rate was made in conformity with the list which remained unaltered as to the appellants, and the appellants having given the twenty-one days notice of appeal against the rate to the committee, applied to the quarter sessions to enter the appeal against the second rate, without having given a fresh notice to the committee of objection to the list : Held, that a fresh notice of objection to the list was a condition precedent to the right to enter the appeal against the second rate. ON an application by the appellants to the Glamorganshire quarter sessions, held on the 31st of December, 1867, to enter and respite an appeal against a poor-rate, made by the respondents, the overseers of the parish of St. Mary, Cardiff, on the 19th of October, 1867, the application was refused, subject to a case. The assessment committee of the Cardiff Union on the 24th of April, 1865, duly approved a valuation list for the parish of St. Mary, in which list the appellants were assessed for the East Bute Wharf, in their occupation, in the rateable value of 14217. The respondents, on the 15th of May, 1867, made a poor-rate, and assessed the appellants on the wharf according to the valuation list. The appellants, on the making of the rate, having previously given the proper notices, objected before the assessment committee, who declined to alter the amount at which the appellants were assessed in respect of the wharf. The appellants then appealed against the rate to the Court of Quarter Sessions, held on the 11th of October, 1867. The only question then being whether the appellants were liable to be rated in respect of wharfage rates or dues, the rate was confirmed subject to a case for the opinion of the Court of Queen's Bench as to the appellants' liability to be so rated. The respondents made another rate on the 19th of October, 1867, in conformity with the same valuation list, and the appellants having previously given twenty-one days notice of intention to appeal to quarter sessions, to the overseers of the parish, and to the assessment committee, made application to enter and respite an appeal against the second rate on the ground that the case granted on the first appeal was not yet disposed of, and that the same question was at issue. It was objected on the part of the respondents, and admitted by the appellants, that the appellants after the making of the rate 1869 v. GREAT WESTERN RAILWAY CO. of the 19th of October, 1867, had not (so far as the rate appealed THE QUEEN against was concerned) gone before or failed to obtain relief from the assessment committee; and it was contended that a notice of objection ought to have been given to the assessment committee against the valuation list, as a condition precedent to an appeal against the last mentioned rate. The appellants contended that the rate having been made on a valuation list in which the figures were the same (so far as they were concerned), and which they had objected to before the assessment committee prior to appealing against a former rate, it was unnecessary that they should again give notice of objection to the valuation list and appear before the assessment committee. If the Court should be of opinion that the Court of Quarter Sessions ought to have granted the application, the appeal against the rate of the 19th of October, 1867, was to be entered and respited. Field, Q.C., and Philbrick, for the respondents. By 27 & 28 Vict. c. 39, s. 1 (1), a notice of objection to the valuation list is a condition precedent to the right to appeal against every rate; non constat, as the committee may at any time amend the list, that they have not done so in the present instance since the appeal against the former rate, or would have amended it if a fresh notice of objection had been given them. (1) 27 & 28 Vict. c. 39, s. 1:-" Before any appeal shall be heard by any special or quarter sessions against a poor-rate made for any parish contained in any union to which the Union Assessment Committee Act, 1862, applies, the appellant shall give twenty-one days notice in writing previous to the special or quarter sessions to which such appea! is to be made of the intention to appeal, and the grounds thereof, to the assessment committee of such union: Provided, that after the 1st of August next no person shall be empowered to appeal to any sessions against a poor-rate framed in conformity with the valuation list approved of by such committee, unless he shall have given to such com- 1869 V. GREAT WESTERN RAILWAY CO. J. W. Bowen, for the appellants. The court of quarter sessions THE QUEEN have confounded two things which are perfectly distinct, the valuation list, and the rate made in conformity with it. The act requires notice of objection to be given to the committee against the valuation list, and not against the rate made in conformity with it; for the committee have nothing to do with making the rate. In this case the appellants have given notice of objection to the list (for it is expressly stated in the case to be unaltered), and have failed to obtain relief, before they applied to enter the appeal against this second rate made in conformity with that list. It would have been idle to go again before the committee; and, moreover, if the committee wished to alter the list, they had ample opportunity given them by the twenty-one days notice of appeal. THE COURT (Cockburn, C.J., Mellor, Lush, and Hayes, JJ.), were of opinion that a fresh notice of objection against the valuation list should have been given to the assessment committee, before appealing to the quarter sessions against the second rate; and that the sessions were therefore right in refusing to enter and respite the appeal. Judgment for the respondents. Attorneys for appellants: Young, Maples, & Co. Attorneys for respondents: Cunliffe & Beaumont, for R. W. Williams, Cardiff. April 28. THE QUEEN, ON THE PROSECUTION OF THE GUARDIANS OF KINGS- Parochial Assessments-Union Assessment Committee Act, 1862 (25 & 26 Vict. New houses completely finished and ready for occupation, but not let or occupied at the time of returning the valuation list of a parish, are rateable" hereditaments within the meaning of the Union Assessment Committee Act, 1862, and ought to be inserted in the list. AN appeal to the Surrey quarter sessions, by the overseers of Malden, against a supplemental valuation list of the rateable hereditaments of the parish, which had been approved by the assessment committee, was dismissed subject to a case. |