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Assault-Battery-Hostile Intention.

In order to constitute an assault and battery, punishable by the criminal law, the act complained of must be done with a hostile intention.

To an action for assaulting and beating the plaintiff, and giving him into custody, the defendant pleaded son assault demesne. The assault by the plaintiff consisted in the plaintiff placing his hands on the defendant's shoulders, in order to call his attention to the hose of a fire-engine which the defendant was superintending. The jury having found that what the plaintiff did was not with a hostile intention,-Held, that the plea was not proved.

[For the report of the above case, see 28 Law J. Rep. (N.S.) Exch. 260.]

1859. June 4.

VINER, appellant, v. THE

CHURCHWARDENS AND OVER-
SEERS OF THE PARISH OF

TONBRIDGE, respondents.
Poor-Rate-Burial Board-18 & 19
Vict. c. 128. ss. 3, 12, 13.

Where a district of a parish is entitled, under section 12. of the 18 & 19 Vict. c. 128, though not supporting its own poor, to appoint a separate burial board, the rest of the parish, minus the district, may appoint a burial board; and a poor-rate made and assessed for the purposes of the burial board on such part of the parish is good.

CASE stated on appeal from a decision of two Magistrates of the county of Kent, under the 20 & 21 Vict. c. 43.

On the 18th of September 1858 a summons was issued and served upon Charles Viner, the appellant, as occupier of a house, &c., rateable to the relief of the poor of the parish of Tonbridge, situate within the hamlet of Southborough, within the said parish, on a complaint for not paying a poor-rate assessed on the 2nd of February 1858.

NEW SERIES, XXVIII.—MAG. CAS.

At the hearing, on the 22nd of September 1858, it appeared that the rate was in the following form:

"An assessment for the relief of the poor of the parish of Tonbridge (excepting such part thereof as lies within the Tonbridge Wells ecclesiastical district), and for other purposes, chargeable thereon according to law," &c.

It was duly made and allowed by two Justices, and notice of it published in every church and chapel in the parish, except in that part of the parish comprised within the Tonbridge Wells ecclesiastical district, and signed by the whole of the overseers and churchwardens of the parish of Tonbridge. The parish of Tonbridge, which is a very large parish, maintaining its own poor, includes within its area the town of Tonbridge Wells and the hamlet of Southborough. The former is about five and the latter three miles from the town of Tonbridge. The town of Tonbridge Wells has an ecclesiastical district formed under the statute 58 Geo. 3. c. 45. It has its own church-rate, and has not, since 1849 or thereabouts, contributed, and did not when the Tonbridge burial board was constituted contribute to the general church-rate of the parish, but it did so contribute for the period of twenty years, and has also its own separate churchwardens the churchwardens appointed for the mother church at Tonbridge town having no jurisdiction or any concern within the Tonbridge Wells ecclesiastical district as regards church or ecclesiastical matters. A vestry is held at Tonbridge Wells for the appointment of their churchwardens, making a church-rate, passing accounts, &c. The hamlet of Southborough has a church, which was built about twenty-eight years ago; and, on the 19th of October 1831, a district was assigned to it under the 1 & 2 Will. 4. c. 38; but no separate church-rate is levied upon the district, which still contributes to the general church-rate of the parish. (Office copies of the assignment of such district, and a description and plan of the boundary thereof, were annexed to the case.) Meetings are held in the vestry of this church for the purpose of appointing churchwardens, in pursuance of the said statute 1 & 2 Will. 4. c. 38, and for other purposes connected

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with the receipt of pew-rents and the management and repair of the church. The regular vestries for the whole parish are held at the mother church, at Tonbridge town, at which a church-rate is made for the whole parish, except the Tonbridge Wells ecclesiastical district. Tonbridge Wells and Southborough have each their separate burial grounds, the one at Tonbridge Wells being detached from the churches (that formerly attached to the district church having become full) and specially provided by a private company for the purpose. The burial-ground at Southborough is the churchyard attached to the church, which has been consecrated by the bishop of the diocese, and burials are performed there under the order and direction of the bishop, contained in the assignment of a district to the said church of Southborough. Neither Tonbridge Wells nor Southborough appoints separate overseers from the rest of the parish, nor maintains separately its own poor, there being a common poor-rate for the entire parish. The ecclesiastical district of Tonbridge Wells forms a considerable part of the parish of Tonbridge, and contains a considerable portion of the property rateable to the relief of the poor in the said parish.

On the 8th of November 1855 a meeting of the inhabitants of the parish of Tonbridge was held in the vestry-room of the mother church, at Tonbridge town, in pursuance of the following notice, copies of which had been affixed to the doors of all the churches in the parish, including that at Southborough, but excepting those within the ecclesiastical district of Tonbridge Wells:

"The inhabitants of the parish of Tonbridge are requested to meet in the vestryroom of the parish church of Tonbridge on Thursday the 8th day of November next, at 11 o'clock in the forenoon, for the purpose of considering and determining whether a burial-ground shall be provided, under the 15 & 16 Vict. c. 85. and subsequent acts relating thereto, for such part of the parish of Tonbridge as is not included in the Tonbridge Wells ecclesiastical district. And in case it should be resolved that a burial-ground shall be so provided, then also for the purpose of

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At this meeting a burial board was agreed to be formed for the district described in the notice. No vestry (or meeting in the nature of a vestry) was held at Southborough church between the 20th of October and the 8th of November 1855, nor were the inhabitants of Southborough consulted as to the formation of the said burial board further than that they were, as inhabitants of the parish of Tonbridge, requested by the said notice to attend the vestry meeting.

The burial board, purporting to be constituted by the inhabitants of Tonbridge in accordance with the resolutions of the said meeting, erected and made a cemetery at the end of Tonbridge town which is furthest from Southborough, from the church of which the said ground is distant nearly four miles, and from Tonbridge Wells about six miles.

The rate in question was made by the said burial board, so constituted as aforesaid, and was made entirely for the purpose of defraying the expenses incurred by the said burial board.

The appellant contended that the rate not being made by a legally constituted burial board, or for a legally constituted burial district, or for purposes for which the appellant was liable to be rated, or in the manner required by the 18 & 19 Vict. c. 128. ss. 11, 13, was altogether void, and could not legally be enforced by the Justices. It was contended, on behalf of the alleged burial board, that the rate appearing on the face of it to be regular, and the property of the defendant prima facie liable to be rated, the duty of the Justices to order it to be enforced was merely ministerial, and that they had no power to inquire into and decide the question as to the legality of the constitution of the burial board or the validity of the said rate.

The Justices ordered a distress-warrant to issue, the ground of their decision being that they were of opinion that the rate appearing on the face of it to be a poorrate duly allowed, their duty was merely ministerial, and that they ought not to

inquire into the actual objects of the rate, or the constitution of the alleged burial board, or into the validity of the premises rated.

Lush, for the respondents.-The burial board was well constituted. Section 12. of the 18 & 19 Vict. c. 128. enacts, that "The vestry or meeting in the nature of a vestry of any parish, township, or other district not separately maintaining its own poor, which has heretofore had a separate burial-ground, may appoint a burial board," &c. "and exercise such powers as by this and the other acts are vested in the vestry of a parish separately maintaining its own poor; and the burial board so appointed shall have all the powers for providing a burial-ground and otherwise as if such parish, township, or other district had been a parish separately maintaining its own poor"; and by section. 13. power is given to make a rate for such parish or district. Tonbridge Wells is such a district as is contemplated by section 12, but Southborough is not, as it has no vestry and no separate ecclesiastical jurisdiction; if, therefore, Tonbridge Wells is entitled to appoint a separate burial board, it follows that the rest of the parish, which in effect is the parish for this purpose, can also appoint a board for

itself.

G. Denman, for the appellant.-Southborough had a meeting in the nature of a vestry; but whether it had or not there is no power for a part of a parish, consisting of the parish minus a particular district, to elect a burial board.

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The

18 & 19 Vict. c. 128. must be read in connexion with the 15 & 16 Vict. c. 85, by section 10. of which the vestry of a parish is enabled to elect a burial board, and by section 52. "parish" shall mean every place having separate overseers and separately maintaining its own poor." Again, section 19. says, that the expense of the burial board is to be paid out of the poorrate. Section 23. allows parishes to join, and "vestry," by section 52, is to mean the inhabitants of the parish in vestry assembled; therefore, under the original act (which is extended to all England by the 16 & 17 Vict. c. 134.) there is clearly no power for such a part of a parish as the present to appoint a burial board. Then,

the 18 & 19 Vict. c. 128. s. 3. enables the overseers of a parish to call meetings of the vestry of the parish for the purpose of appointing a burial board. Section 11. enables parishes to unite, and section 12. enables the vestry or meeting in the nature of a vestry of any parish, township, or other district, not separately maintaining its own. poor, to elect a burial board of its own; but Tonbridge, minus Tonbridge Wells, plus Southborough, is not such a district, nor is there a vestry or meeting in the nature of a vestry for the parish of Tonbridge, minus Tonbridge Wells district. How can a poor-rate be made without appearing on the face of it to be made for a part of the parish only? And such a rate would be bad.

[LORD CAMPBELL, C.J.-That depends on the construction to be put on the statute. Section 12. seems to describe as closely as possible such a district as Tonbridge Wells.]

But, granting that, the section does not enable a burial board to be appointed for the other part of the parish. He citedThe Queen v. St. Peter's, &c., 27

Law J. Rep. (N.s.) Q.B. 232. The Queen v. Peters, 6 E. & B. 225 ; s. c. nom. In re Sunderland Vestry, 25 Law J. Rep. (N.s.) Q. B. 271. The Queen v. Gladstone, 7 E. & B. 575; S. C. nom. Ex parte Urquhart, 26 Law J. Rep. (N.s.) Q.B. 213.

LORD CAMPBELL, C.J.-I am of opinion that this burial board was duly constituted. This seems to depend on whether Tonbridge Wells is entitled to have a burial board of its own, for if it is, the rest of the parish must, as a necessary consequence, be entitled to constitute a burial board for the parish exclusive of Tonbridge Wells. Now, it seems to me that there can be no doubt that Tonbridge Wells, being a separate ecclesiastical district, but not separately maintaining its own poor, which before the passing of the 18 & 19 Vict. c. 128. had a separate burial ground, is entitled to have a burial board of its own; and this being so, by implication, if not by the express words of the 12th section, the rest of the parish may appoint a burial board for itself exclusive of that township.

WIGHTMAN, J.-I did not hear part of

the argument: I do not therefore propose to take any part in the judgment.

ERLE, J.-I am of opinion that this was clearly a well constituted burial board. Section 11. provides for the union of parishes, and enacts that a parish, plus some other place, may have one burial board. Then, section 12. provides for a part of a parish, that a parish, minus some part of it, may have a burial board of its own, so that a district may be severed from the mother parish. Mr. Denman concludes that Tonbridge Wells had a right to a

separate burial board, but argues that when a severance has thus been effected the rest of the parish is incapacitated from electing a burial board. Now, it is perfectly clear that the section, when it says, that where a parish was so large as to have a district with a separate burial ground, that district may have a separate burial board, intended by implication that the rest of the parish might also have a burial board. CROMPTON, J. concurred.

Judgment for the respondents.

INDEX

TO THE REPORTS OF CASES

CONNECTED WITH

THE DUTIES AND OFFICE OF MAGISTRATES:

TRINITY TERM 1858, TO MICHAELMAS TERM 1859.

" re-

ACTION-right of action not given by words
covered as damages" in special Act]-A special
act, incorporating the Railways Clauses Act,
1845, and the Towns Improvement Clauses
Act, 1847, enacted, that certain expenses in-
curred in paving streets, &c. might be "reco-
vered as damages." Action brought to recover
expenses so incurred, not maintainable, the
proper construction of the several acts being,
that the expenses were to be recovered as
damages upon a proceeding before Justices.
Mayor, &c. of Blackburn v. Parkinson, 7

against Justices for an illegal conviction.
See Conviction.

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ALE AND BEERHOUSE licence; jurisdiction of
borough Justices to grant]-It is not necessary
that a borough should have a separate Quarter
Sessions in order to be a "town corporate,"
within the Alehouse Licensing Act, 9 Geo. 4.
c. 61. s. 1. And where Justices of a borough
which had not a separate Quarter Sessions
appointed the 7th of September for granting
licences for such borough, after the county Jus-
tices had appointed the 8th of September for
their licensing meeting, a person who had given
the notices required by 9 Geo. 4. c. 61. for the
meeting appointed by the borough Justices, and
not for that appointed by the county Justices,
was held to be rightly licensed to sell exciseable
liquors in the borough by the borough Justices,
notwithstanding such Justices had not an exclu-
sive jurisdiction, and the county Justices had
so appointed their licensing meeting before the
borough Justices had appointed theirs. Brown
v. Nicholson, 49

certificate of overseer not essential to validity
of licence]-Although the fact that the applicant
is the real resident holder and occupier, is essen-
tial to give validity to a licence under 3 & 4
Vict. c. 61. s. 1, the certificate of the overseer
of the fact is not a condition precedent to the
obtaining of the licence. And where the over-
seer declined to certify, but the supervisor of
Excise obtained information which satisfied him
that the applicant was the resident holder and
occupier, and thereupon the licence was granted,
the licence was held to be valid. Thompson v.
Harvey, 163

Sunday trading; "traveller"]—It is a ques-
tion of fact what is a "traveller," within the
exception of 18 & 19 Vict. c. 118. s. 2, by which
licensed victuallers are not allowed to open their
houses for the sale of beer, &c. between the
hours of three and five on Sundays, except to a
traveller; but a person is not less a traveller,
within the meaning of such exception, because
he travels for pleasure. Atkinson v. Sellars, 12
AMENDMENT-of order of Justices when brought up
by certiorari]-An order was made for the re-
moval of F, a pauper, from parish B. to parish
H. The execution of this order was duly sus-
pended in consequence of the illness of F. After
the death of F. an order was made upon the
officers of parish H, for payment of the expenses
of relieving him. The Justices who made this
last order described themselves as Justices, &c.
for the borough of B. in the county of S. The
order, having been brought up by certiorari,
was amended by the Court, by adding the words
"in and" before the word "for." R. v. In-
habitants of Hellingley, 167

of special case]-A case stated for the Court
of Criminal Appeal will not be sent back to be
amended on the mere statement of counsel.
R. v. Hilton, 28

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