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appellants were the church wardens of the gate, under the 7 Geo. 4. cap. liv, to the parish of St. Giles, Cripplegate. The intent that the respondent and his succeschurch was built and endowed under the sors, perpetual curates of the said district provisions of the 2 & 3 Vict. c. 107, by chapelry of St. Bartholomew, Moor Lane, the 86th section of which, the Governor and should receive the one-sixth part thereby Company of the Bank of England were annexed. Two quarters of the responauthorized to take down the old church dent's annuity being in arrear, and the of St. Bartholomew, Exchange, and in churchwardens having, on demand, refused consideration of the site and the materials, payment, an application was made to a to pay a certain sum of money to the Justice of the Peace at Guildhall, who Archbishop of Canterbury and the Bishop granted a warrant to levy the said arrears. of London, which should be employed by The appellants contended before the them in purchasing a site for and erecting Magistrate, and have argued before us, that and endowing a church in the city of the deed of annexation was invalid ; and London, or some parish adjoining thereto. even if it were valid, the Magistrate could The church was built within the limits of not legally issue a warrant to levy the the parish of St. Giles, Cripplegate, and the arrears against the appellants. It was respondent was duly presented to the in- argued that the deed was invalid on two cumbency thereof.
grounds : first, because the 1 & 2 Will. 4. By an Order in Council, obtained in c. 45. s. 21, which authorizes vicars to the year 1850, in pursuance of the pro- annex a portion of their tithes, did not visions of the 59 Geo. 3. c. 134. s. 16, a empower the vicar to annex the one-sixth particular district was assigned to the said part of the annual payment in lieu of tithes church within the parish of St. Giles, secured to him by the local act, 7 Geo. 4. Cripplegate, and called “The District c. liv, recited in the deed ; and, secondly, Chapelry of Little Moorfields," and by the because, supposing such power to exist, it said Order in Council authority was given could not be legally exercised in reference to publish banns of marriage and to to the church of St. Bartholomew, Moor solemnize marriages, baptisms and church. Lane, since the passing of the 19 & 20 ings and burials in the said church ; the Vict. c. 104, as by that act the district fees for which were to be paid to the in- chapelry of St. Bartholomew, Moor Lane, cumbent. From the date of the Order in had, it was said, become a separate and Council marriages, baptisms and churchings distinct parish, and, as such, incapable of have been solemnized in the said church receiving an annexation of tithes or other accordingly. The deed of the 25th of May revenues under the provisions of the 1 & 2 1857 was an indenture made between the Will. 4. c. 45. s. 21. Rev. Philip Parker Gilbert, vicar of the On the first point, we are clearly of parish of St. Giles, Cripplegate, in the dio- opinion that the extinguishment of the cese of London, of the first part, the Dean tithes of St. Giles, Cripplegate, and the and Chapter of St. Paul's of the second substitution of an annual payment, by the part, the Bishop of London of the third local act of 7 Geo. 4. cap. liv, did not prepart, and the respondent of the fourth part, vent the legal annexation of a portion of reciting a local act, the 7 Geo. 4. cap. liv, such annual payment by the vicar. It is whereby the tithes of the said parish were expressly included by the words of the extinguished, and in lieu thereof an an- 21st section of the 1 & 2 Will. 4. c. 45, nuity of 1,8001., subject to the averages of which authorize the annexation of " any the price of wheat, was secured to the part or parts of the tithes or other annual vicar, payable quarterly. It was then revenues belonging to such rectory or witnessed by the said deed, that, in pursu- vicarage." We think, therefore, that the ance of the power given by the 1 & 2 vicar was authorized to annex one-sixth Will. 4. c. 45. s. 21, the vicar did thereby part of the annual payment which he reannex to the church of the district chapelry ceived in lieu of tithes. of St. Bartholomew, Moor Lane, one-sixth On the second point, it was contended by part of the annual sum to which he was the appellant's counsel that the power of entitled as vicar of the parish of Cripple- annexation was applicable only to the church of a district chapelry, and not to the of marriages, churchings and baptisms, church of a separate and distinct parish, according to the laws and canons expressed and that although by the Order in Council in this realm, are authorized to be pubof 1850 (to which no exception was taken), lished and performed in any consecrated a district was assigned to the church of church or chapel to which a district shall St. Bartholomew, Moor Lane, within the belong, such district not being at the time meaning of the 21st section of the 1 & 2 of the passing of this act a separate and Will. 4. c. 45, yet that as banns of marri- distinct parish for ecclesiastical purposes, age were published, and marriages, church- and the incumbent of which is, by such ings and baptisms were solemnized in it authority, entitled, for his own benefit, to before the passing of the 19 & 20 Vict. the entire fees arising from the performance c. 104, the district chapelry of St. Bartho- of such office, without any reservation lomew, Moor Lane, became thenceforth, by thereout, such district or place shall become the express language of the 14th section, a and be a separate and distinct parish for distinct and separate parish, and so was in- ecclesiastical purposes, such as is contemcapable of receiving any annexation under plated in the 15th section of the firstthe provisions of the 1 & 2 Will. 4. c. 45. recited act (6 & 7 Vict. c. 37), and the s. 21. On the part of the respondent it was church or chapel of such district shall be answered that as there had been a district the church of such parish.” And by the assigned to the church of St. Bartholomew, 15th section of the 6 & 7 Vict. c. 37, " such Moor Lane, within the limits of the parish district shall be and be deemed to be a of St. Giles, Cripplegate, and as, conse- new parish for ecclesiastical purposes, and quently, the respondent was the incumbent shall be known as such by the name of of a church of a district chapelry, the the new parish of
instead of the 19 & 20 Vict. c. 104. would not operate district of
according to the name to deprive such church of its distinctive so as aforesaid fixed for such district, and character, or to disentitle it to a benefit such church or chapel shall become and which up to the time of the passing of that be the church of such new parish accordact it might clearly have received. It is ingly." We think that the district chaenacted by the 1 & 2 Will. 4. c. 45. s. 21, pelry of St. Bartholomew, Moor Lane, "That it shall be lawful for any rector or falls within the provisions of the 19 & 20 vicar for the time being of any rectory or Vict. c. 104. s. 14, and has become, since vicarage, by a deed duly executed by him, the passing of that act, a separate and to annex to any chapel of ease, or parochial distinct parish for ecclesiastical purposes. chapel, or to any district church or chapel, But we do not find anything in that act or any chapel having a district assigned indicating the intention of the legislature thereto, whether already built or hereafter to alter the nature and character of district to be built (such chapel of ease or other churches otherwise than for ecclesiastical chapel or church, with the district or place purposes. The church of St. Bartholomew, to which the same belongs, being situate Moor Lane, is still a church to which a within the limits, or within the original district has been assigned, locally situate limits, of the said rectory or vicarage), any within the limits of St. Giles, Cripplegate, part or parts of the tithes," &c. It seems and is, therefore, capable of receiving the quite clear, therefore, that after the Order annexation made under the provisions of in Council of 1850, and down to the time the 1 & 2 Will. 4. c. 45. s. 21. Although of the passing of the act of the 19 & 20 for ecclesiastical purposes it has become a Vict. c. 104, an annexation might have new parish, it remains a district chapelry been legally made by the vicar of St. Giles, for all other purposes. We think, thereCripplegate of part of his annual revenues fore, that the deed of annexation is a good to the church of St. Bartholomew, Moor and valid deed. The next point made by Lane, to which a district had been assigned, the appellants was, that, assuming the situate within the original limits of the validity of the deed, the warrant to levy vicarage. The 19 & 20 Vict. c. 104. s. 14. the arrears due to the respondent could enacted, “That whensoever, or as soon as not legally be granted by the Magistrate. banns of matrimony and the solemnization The respondent grounds his right to this
NEW SERIES, XXVIII.-Mag. Cas.
warrant upon the 21st section of the 1 & 2
THE TOWN COUNCIL OF KIDWill. 4. c. 45. in connexion with the local 1 859. act of the 7 Geo. 4. c. liv. The 21st sec- April 21.
DERMINSTER, appellants, o. tion of the 1 & 2 Will. 4. c. 45. enacts,
CROFT, respondent. " that the incumbent for the time being"
Municipal Corporation -- Powers of (of the district church) “shall have all the
Commissioners under Local Act-Transfer same remedies for recovering and enforcing of those Powers to Town Council-Notice payment of the premises which shall be so
of Meeting-On or near the Door of the annexed," (including the case of the an
Town-Hall-5 8 6 Vict. c. 76. s. 75. nexation of a part of the vicar's annual revenues), “as the rector or vicar for the
By a local act, certain Commissioners time being of the rectory or vicarage might were appointed for paving, fc. the town of have had, if such annexation had not been K, and they were to carry on their proceedmade.” And by the 3rd section of the ings at public meetings, of which notice in 7 Geo. 4. c. liv. it is enacted, “That in writing was to be fixed upon the door of the case any quarterly payment of the annual parish church. Under section 75. of 5 & 6 sum of 1,8001., or any part thereof, shall Vict. c. 76. the powers of the Commissioners be in arrear and unpaid for twenty-eight were vested in the town council ; by section days, it shall be lawful for one of Her 69. a notice of the time and place of the Majesty's Justices of the Peace for the city intended meetings of the town council was to of London, on complaint of the vicar, to be given by fixing the same on or near the summon the church wardens, or any one or door of the town hall of the borough. In more inhabitants of the parish to the num- pursuance of the powers given by the local ber of thirty, to be nominated by the vicar, act, assessors were appointed at a meeting to appear before him and pay the arrears; for the purpose of making a rate, and at and if, on appearing, they do not prove another meeling a precept was issued to them payment of the arrears to grant a warrant to make the rate :-Held, that the notices to levy them of the goods and chattels of of these meetings respectively were properly the parties summoned and appearing.” given by fixing them upon or near the door And it is further provided, that the like of the town-hall, as required by the Muniproceedings may be resorted to if the whole cipal Corporation Act. of the arrears and the expenses are not levied on the first occasion, and so from Case stated by Justices, under the 20 time to time until the whole be paid. On & 21 Vict, c. 43. the part of the appellants, it was argued, The case was substantially as follows:that this section was of a very harsh and The respondent was, on the 26th of stringent character, and did not apply to a January instant, summoned before the case where the vicar had parted with Justices of the borough of Kidderminster, a portion of the annual sum granted to for refusing to pay the sum of 118. 3d., him. But as the vicar by this section has the amount of a certain rate or assessment power to obtain a warrant “where any levied upon him under 53 Geo. 3. c. 83, quarterly payment, or any part thereof, intituled 'An Act for paving, cleansing, shall be in arrear," and as by the statute lighting, watching and otherwise improv1 & 2 Will. 4. c. 45. s. 21. the grantee in ing the streets and other public pasall cases of annexation has the same powers sages and places in Kidderminster, in and remedies as the vicar himself would the county of Worcester, by which certain have had before the annexation, we Commissioners are appointed for carrythink that the warrant was rightly granted ing the Act into execution.' And it is in the case. The appeal, therefore, must provided, by section 4, " That all orders be dismissed, with costs.
and proceedings of the said Commissioners Appeal dismissed, with costs. in the execution of this act shall be at a
public meeting, held in pursuance of this act, and not otherwise, except as hereinafter excepted." It is also provided, by section 5, “ That previous to any meeting of the said Commissioners in pursuance of virtue of this act to be done by the counthis act, subsequent to the first meeting, cil of such borough, and all questions of notice in writing, signed by the clerk or adjournment, or others, that may come by seven or more Commissioners, of the before such council, may be done and time and place of every such intended decided by the majority of the members meeting, shall from time to time be given of the council who shall be present at any by affixing the same upon the door of the meeting .... Provided always, that preparish church of Kidderminster on the vious to any meeting of the council held Sunday, and upon the town - hall two by virtue of this act, a notice of the time days preceding such intended meeting." and place of such intended meeting shall
By the Municipal Corporation Act, be given three clear days at least before 5 & 6 Will. 4. c. 76. s. 75," after reciting such meeting, by fixing the said notice on that it may be expedient that the powers or near the door of the town-hall of the now vested in the trustees appointed underborough," &c. sundry acts of parliament for paving, By the Kidderminster Paving Act, the lighting, cleansing, watching, regulating, Commissioners bave power to appoint supplying with water and improving cer- assessors of the money to be raised by tain boroughs, or certain parts thereof, taxation of the inhabitants and occupiers should be transferred to and vested in the for the purposes of the act, and all rates councils of such boroughs respectively, it and assessments which shall be made in is enacted, that the trustees appointed by pursuance of the act are to be allowed or virtue of any such act of parliament as signed by the Commissioners, or any seven last aforesaid, wherein the trustees, or the or more of them. persons whose trustees they may be, are On the 20th of April 1857, a meeting of not beneficially interested, may, if it shall the town council of the borough was held seem to them expedient, at a meeting to for the purpose of appointing assessors, a be called for that purpose, transfer, in notice of which meeting was duly given writing, under their hands and seals, all under the Municipal Corporation Act, s. 69, the powers vested in them as such trustees but no notice of such meeting was affixed by any such act or acts of parliament as upon the door of the parish church of aforesaid to the said body corporate of Kidderminster, as required by the local such borough, and the said body corporate act. Subsequently to such meeting, a of such borough shall thenceforth be trus. precept, as required by the said Paving Act, tees for executing by the council of such was issued to assessors appointed at the borough the several powers and provisions said meeting, who thereupon made a rate of any such act or acts of parliament; and and assessment, which was duly allowed the members of the council shall have the by the town council, at a meeting duly same powers and be subject to the same convened by notice under the Municipal duties as if their names had been originally Corporation Act, but of which no notice inserted in such act or acts, or as if they was affixed to the door of the parish church, had been elected under the provisions of as required by the local act. any such act or acts as such trustees The respondent, having refused to pay respectively."
the rate, upon the ground that the meetOn the 8th of October 1856 the powers ings for the appointment of the assessors, of the Commissioners under the above- and allowance of the rate, had not been mentioned Kidderminster Paving Act were duly convened, was summoned before the duly transferred to the town council of Magistrates, who were of opinion that the said borough, and since that period the notices should have been affixed on the all powers under the said Paving Act door of the parish church, as required by have been exercised by the said town the local act, and refused to make an order council.
against the respondent, but consented to By the 69th section of the Municipal grant a case for the opinion of this Corporation Act, it is enacted, that “all Court. acts whatsoever authorized or required by J. J. Powell, for the appellants, contended that the town.council now exercise LORD CAMPBELL, C.J.-I have no doubt the power formerly exercised by the Com- that the meaning of the legislature must missioners under the local act, by virtue have been that the transfer of the powers of the transfer of those powers to the town exercised by the Commissioners appointed council under the 75th section of the under the local act, to the town council of Municipal Corporation Act; and as under the borough, was to them as the town the 69th section of the Municipal Corpora- council, and that the mode of procedure tion Act, "all acts authorized or required was to be that which is pointed out in the to be done" by the town council are to 75th section of the Municipal Corporation be done at meetings of the town council Act. convened by notice, given three clear days ERLE, J.-It is very clear to me that at least before such meetings, by fixing the the body corporate of the borough is subsaid notice on or near the door of the town. stituted in lieu of the Commissioners, and hall of the said borough, such notice was that the powers and duties of the local act the proper notice to be given of meetings are to be carried into execution by the which the town council were authorized town council. Those powers and duties by virtue of the Municipal Corporation are not to be confounded with the mere Act to hold for the exercise of the powers mode of procedure. The trustees are put of the local act. Also, that such notices aside, and the body corporate substituted having been duly given previous to the for them; and such body corporate are meetings at which the assessors were ap. to comply in all respects with the mode pointed, and the rates allowed and signed, of procedure pointed out in the 69th the said rates were duly made, and could section of the Municipal Corporation Act. be enforced against the respondent.
CROMPTON, J.-I am clearly of the same Scotland, for the respondent, contended opinion. By section 75. the corporate that in the exercise of the powers transferred body are made trustees for executing the under the 75th section of the 5 & 6 Will. 4. powers of the local act, and they are to c. 76, the town council of the borough was act by the town council. The mode of subject to the same requirements and procedure, how they are to act, how they restrictions in all respects as the Com- are to vote, and the mode of carrying on missioners acting under the local act, 53 their proceedings, are to be done as acts Geo. 3; that in appointing the assessors done by the town council under the 69th and in allowing and signing the rate and section. It may be that it was thought assessments, the town council of the that the town council, as the representaborough were empowered to act, not merely tives of the people, should do all these in their corporate capacity, but as dis- things, and I think that the appellants are charging the duties of Commissioners entitled to our judgment. regularly appointed, and acting under
Judgment for the appellants. the local act ; that there was nothing to repeal or alter the express provisions of the said local act, as regards the appointment of assessors and the allowance of
1859. PURDY, appellant, 0. SMITH, rates and assessments under it, and it was
respondent. necessary to the valid exercise of the duties of the town council in that respect that the Toll-Taxed Cart-Turnpike-Road. notices convening the meetings for the purpose of such appointment and allow- A local act provided that upon the W. ance should have been given in the man- turnpike-road certain tolls should be chargener required by the said local act ; that able, and amongst others, “ for every horse or as such notices were not given as so re- other beast drawing any other chaise, chair quired, the appointment of the assessors or calèche, or any taxed cart, a sum not and the allowance of the rate and assess exceeding the sum of 3d.":--Held, that a ment were without jurisdiction, and the cart upon which a tax had been imposed and rate could not therefore be enforced. paid in the previous year, was within the