appellants were the churchwardens of the parish of St. Giles, Cripplegate. The church was built and endowed under the

provisions of the 2 & 3 Vict. c. 107, by the 86th section of which, the Governor and Company of the Bank of England were authorized to take down the old church of St. Bartholomew, Exchange, and in consideration of the site and the materials, to pay a certain sum of money to the Archbishop of Canterbury and the Bishop of London, which should be employed by them in purchasing a site for and erecting and endowing a church in the city of London, or some parish adjoining thereto. The church was built within the limits of the parish of St. Giles, Cripplegate, and the respondent was duly presented to the incumbency thereof.

By an Order in Council, obtained in the year 1850, in pursuance of the provisions of the 59 Geo. 3. c. 134. s. 16, a particular district was assigned to the said church within the parish of St. Giles, Cripplegate, and called "The District Chapelry of Little Moorfields," and by the said Order in Council authority was given to publish banns of marriage and to solemnize marriages, baptisms and churchings and burials in the said church; the fees for which were to be paid to the incumbent. From the date of the Order in Council marriages, baptisms and churchings have been solemnized in the said church accordingly. The deed of the 25th of May 1857 was an indenture made between the Rev. Philip Parker Gilbert, vicar of the parish of St. Giles, Cripplegate, in the diocese of London, of the first part, the Dean and Chapter of St. Paul's of the second part, the Bishop of London of the third part, and the respondent of the fourth part, reciting a local act, the 7 Geo. 4. cap. liv, whereby the tithes of the said parish were extinguished, and in lieu thereof an annuity of 1,800l., subject to the averages of the price of wheat, was secured to the vicar, payable quarterly. It was then witnessed by the said deed, that, in pursuance of the power given by the 1 & 2 Will. 4. c. 45. s. 21, the vicar did thereby annex to the church of the district chapelry of St. Bartholomew, Moor Lane, one-sixth part of the annual sum to which he was entitled as vicar of the parish of Cripple

gate, under the 7 Geo. 4. cap. liv, to the intent that the respondent and his successors, perpetual curates of the said district chapelry of St. Bartholomew, Moor Lane, should receive the one-sixth part thereby annexed. Two quarters of the respondent's annuity being in arrear, and the churchwardens having, on demand, refused payment, an application was made to a Justice of the Peace at Guildhall, who granted a warrant to levy the said arrears.

The appellants contended before the Magistrate, and have argued before us, that the deed of annexation was invalid; and even if it were valid, the Magistrate could not legally issue a warrant to levy the arrears against the appellants. It was argued that the deed was invalid on two grounds: first, because the 1 & 2 Will. 4. c. 45. s. 21, which authorizes vicars to annex a portion of their tithes, did not empower the vicar to annex the one-sixth part of the annual payment in lieu of tithes secured to him by the local act, 7 Geo. 4. c. liv, recited in the deed; and, secondly, because, supposing such, power to exist, it could not be legally exercised in reference to the church of St. Bartholomew, Moor Lane, since the passing of the 19 & 20 Vict. c. 104, as by that act the district chapelry of St. Bartholomew, Moor Lane, had, it was said, become a separate and distinct parish, and, as such, incapable of receiving an annexation of tithes or other revenues under the provisions of the 1 & 2 Will. 4. c. 45. s. 21.

On the first point, we are clearly of opinion that the extinguishment of the tithes of St. Giles, Cripplegate, and the substitution of an annual payment, by the local act of 7 Geo. 4. cap. liv, did not prevent the legal annexation of a portion of such annual payment by the vicar. It is expressly included by the words of the 21st section of the 1 & 2 Will. 4. c. 45, which authorize the annexation of "any part or parts of the tithes or other annual revenues belonging to such rectory or vicarage." We think, therefore, that the vicar was authorized to annex one-sixth part of the annual payment which he received in lieu of tithes.

On the second point, it was contended by the appellant's counsel that the power of annexation was applicable only to the church

of a district chapelry, and not to the church of a separate and distinct parish, and that although by the Order in Council of 1850 (to which no exception was taken), a district was assigned to the church of St. Bartholomew, Moor Lane, within the meaning of the 21st section of the 1 & 2 Will. 4. c. 45, yet that as banns of marriage were published, and marriages, churchings and baptisms were solemnized in it before the passing of the 19 & 20 Vict. c. 104, the district chapelry of St. Bartholomew, Moor Lane, became thenceforth, by the express language of the 14th section, a distinct and separate parish, and so was incapable of receiving any annexation under the provisions of the 1 & 2 Will. 4. c. 45. s. 21. On the part of the respondent it was answered that as there had been a district assigned to the church of St. Bartholomew, Moor Lane, within the limits of the parish of St. Giles, Cripplegate, and as, consequently, the respondent was the incumbent of a church of a district chapelry, the 19 & 20 Vict. c. 104. would not operate to deprive such church of its distinctive character, or to disentitle it to a benefit which up to the time of the passing of that act it might clearly have received. It is enacted by the 1 & 2 Will. 4. c. 45. s. 21, "That it shall be lawful for any rector or vicar for the time being of any rectory or vicarage, by a deed duly executed by him, to annex to any chapel of ease, or parochial chapel, or to any district church or chapel, or any chapel having a district assigned thereto, whether already built or hereafter to be built (such chapel of ease or other chapel or church, with the district or place to which the same belongs, being situate within the limits, or within the original limits, of the said rectory or vicarage), any part or parts of the tithes," &c. It seems quite clear, therefore, that after the Order in Council of 1850, and down to the time of the passing of the act of the 19 & 20 Vict. c. 104, an annexation might have been legally made by the vicar of St. Giles, Cripplegate of part of his annual revenues to the church of St. Bartholomew, Moor Lane, to which a district had been assigned, situate within the original limits of the vicarage. The 19 & 20 Vict. c. 104. s. 14. enacted, "That whensoever, or as soon as banns of matrimony and the solemnization NEW SERIES, XXVIII.—MAG. Cas.

of marriages, churchings and baptisms, according to the laws and canons expressed 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 office, 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 firstrecited act (6 & 7 Vict. c. 37), and the church or chapel of such district shall be the church of such parish." And by the 15th section of the 6 & 7 Vict. c. 37,"such district shall be and be deemed to be a new parish for ecclesiastical purposes, and shall be known as such by the name of the new parish of instead of the district of according to the name so as aforesaid fixed for such district, and such church or chapel shall become and be the church of such new parish accordingly." We think that the district chapelry of St. Bartholomew, Moor Lane, falls within the provisions of the 19 & 20 Vict. c. 104. s. 14, and has become, since the passing of that act, a separate and distinct parish for ecclesiastical purposes.

But we do not find anything in that act indicating the intention of the legislature to alter the nature and character of district churches otherwise than for ecclesiastical purposes. The church of St. Bartholomew, Moor Lane, is still a church to which a district has been assigned, locally situate within the limits of St. Giles, Cripplegate, and is, therefore, capable of receiving the annexation made under the provisions of the 1 & 2 Will. 4. c. 45. s. 21. Although for ecclesiastical purposes it has become a new parish, it remains a district chapelry for all other purposes. We think, therefore, that the deed of annexation is a good and valid deed. The next point made by the appellants was, that, assuming the validity of the deed, the warrant to levy the arrears due to the respondent could not legally be granted by the Magistrate. The respondent grounds his right to this

U

warrant upon the 21st section of the 1 & 2 Will. 4. c. 45. in connexion with the local act of the 7 Geo. 4. c. liv. The 21st section of the 1 & 2 Will. 4. c. 45. enacts, "that the incumbent for the time being" (of the district church) "shall have all the same remedies for recovering and enforcing payment of the premises which shall be so annexed," (including the case of the annexation of a part of the vicar's annual revenues), "as the rector or vicar for the time being of the rectory or vicarage might have had, if such annexation had not been made." And by the 3rd section of the 7 Geo. 4. c. liv. it is enacted, "That in case any quarterly payment of the annual sum of 1,800l., or any part thereof, shall be in arrear and unpaid for twenty-eight days, it shall be lawful for one of Her Majesty's Justices of the Peace for the city of London, on complaint of the vicar, to summon the churchwardens, or any one or more inhabitants of the parish to the number of thirty, to be nominated by the vicar, to appear before him and pay the arrears; and if, on appearing, they do not prove payment of the arrears to grant a warrant to levy them of the goods and chattels of the parties summoned and appearing." And it is further provided, that the like proceedings may be resorted to if the whole of the arrears and the expenses are not levied on the first occasion, and so from time to time until the whole be paid. On the part of the appellants, it was argued, that this section was of a very harsh and stringent character, and did not apply to a case where the vicar had parted with a portion of the annual sum granted to him. But as the vicar by this section has power to obtain a warrant "where any quarterly payment, or any part thereof, shall be in arrear," and as by the statute 1 & 2 Will. 4. c. 45. s. 21. the grantee in all cases of annexation has the same powers and remedies as the vicar himself would have had before the annexation, we think that the warrant was rightly granted in the case. The appeal, therefore, must be dismissed, with costs.

Appeal dismissed, with costs.

1859.

April 21.

THE TOWN COUNCIL OF KID

DERMINSTER, appellants, v.
CROFT, respondent.

Municipal Corporation Powers of Commissioners under Local Act-Transfer of those Powers to Town Council-Notice of Meeting-On or near the Door of the Town-Hall-5 & 6 Vict. c. 76. s. 75.

By a local act, certain Commissioners were appointed for paving, &c. the town of K, and they were to carry on their proceedings at public meetings, of which notice in writing was to be fixed upon the door of the parish church. Under section 75. of 5 & 6 Vict. c. 76. the powers of the Commissioners were vested in the town council; by section 69. a notice of the time and place of the intended meetings of the town council was to be given by fixing the same on or near the door of the town-hall of the borough. In pursuance of the powers given by the local act, assessors were appointed at a meeting for the purpose of making a rate, and at another meeting a precept was issued to them to make the rate:-Held, that the notices of these meetings respectively were properly given by fixing them upon or near the door of the town-hall, as required by the Municipal Corporation Act.

CASE stated by Justices, under the 20 & 21 Vict. c. 43.

The case was substantially as follows:The respondent was, on the 26th of January instant, summoned before the Justices of the borough of Kidderminster, for refusing to pay the sum of 11s. 3d., the amount of a certain rate or assessment levied upon him under 53 Geo. 3. c. 83, intituled 'An Act for paving, cleansing, lighting, watching and otherwise improving the streets and other public passages and places in Kidderminster, in the county of Worcester, by which certain Commissioners are appointed for carrying the Act into execution.' And it is provided, by section 4, "That all orders and proceedings of the said Commissioners 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 this act, subsequent to the first meeting, notice in writing, signed by the clerk or by seven or more Commissioners, of the time and place of every such intended meeting, shall from time to time be given by affixing the same upon the door of the parish church of Kidderminster on the Sunday, and upon the town - hall two days preceding such intended meeting."

By the Municipal Corporation Act, 5 & 6 Will. 4. c. 76. s. 75, "after reciting that it may be expedient that the powers now vested in the trustees appointed under sundry acts of parliament for paving, lighting, cleansing, watching, regulating, supplying with water and improving certain boroughs, or certain parts thereof, should be transferred to and vested in the councils of such boroughs respectively, it is enacted, that the trustees appointed by virtue of any such act of parliament as last aforesaid, wherein the trustees, or the persons whose trustees they may be, are not beneficially interested, may, if it shall seem to them expedient, at a meeting to be called for that purpose, transfer, in writing, under their hands and seals, all the powers vested in them as such trustees by any such act or acts of parliament as aforesaid to the said body corporate of such borough, and the said body corporate of such borough shall thenceforth be trustees for executing by the council of such borough the several powers and provisions of any such act or acts of parliament; and the members of the council shall have the same powers and be subject to the same duties as if their names had been originally inserted in such act or acts, or as if they had been elected under the provisions of any such act or acts as such trustees respectively."

On the 8th of October 1856 the powers of the Commissioners under the abovementioned Kidderminster Paving Act were duly transferred to the town council of the said borough, and since that period all powers under the said Paving Act have been exercised by the said town council.

By the 69th section of the Municipal Corporation Act, it is enacted, that "all acts whatsoever authorized or required by

virtue of this act to be done by the council of such borough, and all questions of adjournment, or others that may come before such council, may be done and decided by the majority of the members of the council who shall be present at any meeting. . . . Provided always, that previous to any meeting of the council held by virtue of this act, a notice of the time and place of such intended meeting shall be given three clear days at least before such meeting, by fixing the said notice on or near the door of the town-hall of the borough," &c.

By the Kidderminster Paving Act, the Commissioners have power to appoint assessors of the money to be raised by. taxation of the inhabitants and occupiers for the purposes of the act, and all rates and assessments which shall be made in pursuance of the act are to be allowed or signed by the Commissioners, or any seven or more of them.

On the 20th of April 1857, a meeting of the town council of the borough was held for the purpose of appointing assessors, a notice of which meeting was duly given under the Municipal Corporation Act, s. 69, but no notice of such meeting was affixed upon the door of the parish church of Kidderminster, as required by the local act. Subsequently to such meeting, a precept, as required by the said Paving Act, was issued to assessors appointed at the said meeting, who thereupon made a rate and assessment, which was duly allowed by the town council, at a meeting duly convened by notice under the Municipal Corporation Act, but of which no notice was affixed to the door of the parish church, as required by the local act.

The respondent, having refused to pay the rate, upon the ground that the meetings for the appointment of the assessors, and allowance of the rate, had not been duly convened, was summoned before the Magistrates, who were of opinion that the notices should have been affixed on the door of the parish church, as required by the local act, and refused to make an order against the respondent, but consented to grant a case for the opinion of this Court.

J. J. Powell, for the appellants, con

tended that the town council now exercise the power formerly exercised by the Commissioners under the local act, by virtue of the transfer of those powers to the town council under the 75th section of the Municipal Corporation Act; and as under the 69th section of the Municipal Corporation Act, "all acts authorized or required to be done" by the town council are to be done at meetings of the town council convened by notice, given three clear days at least before such meetings, by fixing the said notice on or near the door of the townhall of the said borough, such notice was the proper notice to be given of meetings which the town council were authorized by virtue of the Municipal Corporation Act to hold for the exercise of the powers of the local act. Also, that such notices having been duly given previous to the meetings at which the assessors were appointed, and the rates allowed and signed, the said rates were duly made, and could be enforced against the respondent.

Scotland, for the respondent, contended that in the exercise of the powers transferred under the 75th section of the 5 & 6 Will. 4. c. 76, the town council of the borough was subject to the same requirements and restrictions in all respects as the Commissioners acting under the local act, 58 Geo. 3; that in appointing the assessors and in allowing and signing the rate and assessments, the town council of the borough were empowered to act, not merely in their corporate capacity, but as discharging the duties of Commissioners regularly appointed, and acting under 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 rates and assessments under it, and it was necessary to the valid exercise of the duties of the town council in that respect that the notices convening the meetings for the purpose of such appointment and allowance should have been given in the manner required by the said local act; that as such notices were not given as so required, the appointment of the assessors and the allowance of the rate and assessment were without jurisdiction, and the rate could not therefore be enforced.

LORD CAMPBELL, C.J.-I have no doubt that the meaning of the legislature must have been that the transfer of the powers exercised by the Commissioners appointed under the local act, to the town council of the borough, was to them as the town council, and that the mode of procedure was to be that which is pointed out in the 75th section of the Municipal Corporation Act.

ERLE, J.-It is very clear to me that the body corporate of the borough is substituted in lieu of the Commissioners, and that the powers and duties of the local act are to be carried into execution by the town council. Those powers and duties are not to be confounded with the mere mode of procedure. The trustees are put aside, and the body corporate substituted for them; and such body corporate are to comply in all respects with the mode of procedure pointed out in the 69th section of the Municipal Corporation Act.

CROMPTON, J.-I am clearly of the same opinion. By section 75. the corporate body are made trustees for executing the powers of the local act, and they are to act by the town council. The mode of procedure, how they are to act, how they are to vote, and the mode of carrying on their proceedings, are to be done as acts done by the town council under the 69th section. It may be that it was thought that the town council, as the representatives of the people, should do all these things, and I think that the appellants are entitled to our judgment.