was enacted, that the churchwardens and overseers of the poor, and vestrymen of the said parish (Spitalfields) are authorized and required to meet together in the church or vestry-room as often as occasion should require and notice given; and that the said churchwardens and overseers and vestrymen, or the major part of them so assembled, should ascertain such sum or sums of money to be raised within the limits of the said parish for the relief of the poor, as they in their discretion should think sufficient. By the 17th section, the said churchwardens and overseers and vestrymen were to assemble and make the rate or rates, within twenty-one days after the sum or sums of money had been ascertained, as in the former section was provided.

Up to the time of the appointment of the new vestry, the poor-rates for the parish had been made in the way pointed

out as above.

The plaintiff obtained a verdict for the amount claimed, but leave was reserved to the defendant to move to set that verdict aside.

On the 14th of January, Collier moved for and obtained a rule calling upon the plaintiff to shew cause why the verdict obtained by him should not be set aside, and a verdict entered for the defendant instead thereof, on the ground that the power to make poor-rates was not transferred to the vestry constituted under the Act for the better Management of the Metropolis, and that even if it were, the overseers were necessary parties to the making of the rates, and entitled to vote in the making of them.

Lush, Petersdorff, Serj. and Needham shewed cause.-The rule must be discharged, for the rates have been properly made. By the 2 Geo. 2. c. x, the hamlet was made a distinct parish; and section 9. points out of whom the vestry was to consist; when they were appointed, power was given them by the 26 Geo. 2. c. xcviii. to make poor-rates. Therefore there was formerly a vestry in the parish, and that vestry had power to make rates.

That is

the first question, and it must clearly be answered in the affirmative. The next question is, whether their powers in this respect have been transferred to the new

vestry. That will depend upon the construction to be put upon certain sections of the 18 & 19 Vict. c. 120. and of 19 & 20 Vict. c. 112 (1).

(1) The following sections were referred to in the course of the argument:

18 & 19 Vict. c. 120. s. 8.-" At the first such election of vestrymen as aforesaid for any parish the full number of elective vestrymen, of which such vestry is to consist, as hereinbefore mentioned, shall be elected, and such vestrymen, with such other persons as herein before mentioned, shall forthwith be deemed to constitute the vestry of such parish, and shall supersede any existing vestry therein, and exercise the powers and privileges held by such existing vestry, save as in this act otherwise provided."

Section 31.-" For the purposes of this act the several parishes mentioned in the second column of Schedule (B.) to this act shall be united, and form the respective districts mentioned in conjunction therewith and named in the first column of the same schedule; and there shall be a board of works for each such district, composed of the members elected as hereinafter mentioned for the parishes forming such district."

Section 32.-" The vestry constituted by this act in every parish in any such district shall on the 28th of November 1855 elect the number of persons mentioned in the third column of the said Schedule (B.) in conjunction with such parish to be a member or members of the board of works for such district."

Section 42.-"The board to be constituted as aforesaid for every such district shall be a body corporate by the name of 'The Board of Works for the District,' and the vestry of every parish mentioned in Schedule (A.) to this act shall be a body corporate, by the name of The Vestry of the Parish of in the County of ,""&c. Section 67.-" Where in the provisions hereinafter contained any expression is used referring to the vestry of a parish, such expression shall be construed as referring only to the vestry of a parish mentioned in Schedule (A.) to this act, unless such construction be repugnant to the context."

Section 90.-" All the duties, powers and authorities for or in relation to the paving, lighting, watering, cleansing, or improving of any of the parishes mentioned in Schedule (A.) to this act, or any part of such parish, now vested in any Commissioners, or in any body other than the vestry of such parish, or in any officer of any Commissioners or other body, and all other duties, powers and authorities in anywise relating to the regulation, government or concerns of any such parish or part, or of the inhabitants thereof (except such duties, powers and authorities as relate to the affairs of the church, or the management or relief of the poor, or the administration of any money or other property applicable to the relief of the poor, so far as such duties, powers and authorities relate thereto), now vested under any local act of parliament in any Commissioners, or in any body other than the vestry of such parish, or in any such officer, shall cease to be so vested, and shall, save as herein otherwise provided, become vested in and be performed

Of the first of those acts the important sections are the 8th and 9th, which shew that the powers of the old vestry are transferred to the new one. By section 8. the new vestry is to supersede any existing vestry, save as in that act otherwise provided, and the exceptions are to be found in section 90. Upon reading that section it will be seen that the powers of making poor-rates are still left in the vestry referred to in section 8. The first part of the section is immaterial, because it relates only to parishes contained in Schedule (A.), whereas this parish is in Schedule (B.); but the latter part shews that it was intended to transfer to the district board of works the powers which related to the improvement of the parishes; while the duties, powers and authorities relating to the management and relief of the poor, or the administration of any money or other property applicable to the relief of the poor, were to remain in the vestry. It is submitted that these two sections would

and exercised by the vestry of such parish under this act; and all the duties, powers and authorities for or in relation to the paving, lighting, watering, cleansing or improving of any parish included in any district mentioned in Schedule (B.) to this act, or any part of such parish, now vested in any Commissioners, vestry or other body, or in any officer of any Commissioners or other body, and all other duties, powers and authorities in anywise relating to the regulation, government or concerns of any such parish, or part, or of the inhabitants thereof (except such duties, powers and authorities as relate to the affairs of the church, or the management or relief of the poor, or the administration of any money or other property applicable to the relief of the poor, so far as such duties, powers and authorities relate thereto), now vested under any local act of parliament in any Commissioners, vestry or other body, or in any such officer, shall cease to be so vested, and shall, save as herein otherwise provided, become vested in and be performed and exercised by the board of works for such district; and the provisions of every such act of parliament as aforesaid shall be applicable to the vestry of every parish mentioned in the said Schedule (A.) and to every such district board accordingly, and the offices of all Commissioners and persons whose powers are determined by this act shall cease and be determined, and there shall be no new appointment or election to any such office."

Section 192.-"Every district board, and the vestry of every parish mentioned in either of the Schedules (A.) and (B.) to this act, shall, in the month of April in every year, cause their accounts to be balanced up to the 25th of March next preceding, and shall cause a full statement and account to be drawn out."

Section 3. of the statute 19 & 20 Vict. c. 112.

be sufficient to settle the question; but all doubt is removed when reference is made to the 3rd section of 19 & 20 Vict. c. 112, the act for amending the 18 & 19 Vict. c. 120, which enacts that all the duties, powers and privileges (including such as relate to the affairs of the church or the management or relief of the poor, or the administration of any money or other property applicable to the relief of the poor), which might have been performed by any vestry, shall be deemed to have become transferred to, and vested in the vestry constituted by the act of the year before. The section therefore declares what was the intention of the legislature, and it follows that, if before the passing of the 18 & 19 Vict. c. 120. the power of making poor-rates was vested in any vestry, it is now transferred to the new vestry constituted under that act. But it is quite certain that these powers were vested in the vestry of the parish, existing under the local acts above referred to. It will be contended that the presence of the overseers was necessary, and that they were entitled to vote in the making of the rates; but it is submitted, that in the old vestry they had no power as a separate body, but only as component parts of the vestry.

[HILL, J.-It could not have been inrecites:-"Save as hereinbefore otherwise provided, all the duties, powers and privileges (including such as relate to the affairs of the Church, or the management or relief of the poor, or the administration of any money or other property applicable to the relief of the poor) which might have been performed or exercised by any open or elected or other vestry, or any such meeting as aforesaid, in any parish, under any local act or otherwise, at the time of the passing of the said act of the last session, shall be deemed to have become transferred to and vested in the vestry constituted by such last-mentioned act, except so far as any such duties, powers or privileges may, in the case of a parish included in any district mentioned in Schedule (B.) to the said act, be vested, by section 90. thereof, in the board of works of such district: Provided that all duties and powers relating to the affairs of the church, or the management or relief of the poor, or the administration of any money or other property applicable to the relief of the poor, which, at the time of the passing of the said act, were vested in or might be exercised by any guardians, governors, trustees or commissioners, or any body other than any open or elected vestry or any such meeting, as hereinbefore mentioned, shall continue vested in and be exercised by such guardians, commissioners or other body as aforesaid."

tended that an overseer should have two votes, one as overseer, and one as vestryman.]

No: the object of the act was to establish one body of persons, with the qualifications pointed out in the earlier sections, who were to perform the duties of vestrymen. Reliance will be placed upon the proviso in section 3. of the 19 & 20 Vict. c. 112, and it will be said, that under the words of that proviso the powers of making poor-rates remain in the old vestry; but that construction cannot prevail, for the old vestry cannot be included under the words "guardians, governors, trustees or Commissioners, or any body other than any open, or elected, or other vestry." The intention was to preserve the powers which had been vested in some given body appointed by some local act. It is possible that the old vestry may exist for some purposes, as for the purpose of electing governors of the poor, but it no longer exists for the purpose of making poorrates. The churchwardens and overseers were entitled to vote in the old vestry as vestrymen, but not as a different body from the rest of the vestrymen; and now, by 18 & 19 Vict. c. 120. s. 2, no one is entitled to vote except the regular vestrymen, the incumbent and the churchwardens; they altogether make up the new vestry, and they have the powers of the old one.

[ERLE, J.-The words of section 3. of 19 & 20 Vict. c. 112. are very strong"shall be deemed to have become," evidently referring to something which had been done at a past time, and thus shewing the construction to be put upon the former act.]

Yes, it is a new body representing the parish put into the place of the old one. Then the second ground mentioned in the rule must fail; for there is nothing in the act to shew that any person whatever, who is not a vestryman, can interfere at all; and no argument can be raised upon the right of the overseers to be present in the vestry appointed under the 2 Geo. 2. c. x, for they were entitled to be present and vote quà vestrymen, and not quà overseers; and now, the vestry being superseded, they are superseded as well.

Collier, H. James and W. P. Manson,
NEW SERIES, XXVIII.-MAG. Cas.

in support of the rule.-First, assuming that the power of making rates had been performed by an open vestry, that power is not transferred to the new vestry, but is still either in the old one, or has been transferred to the board of works for the district. Secondly, the power of making rates was never performed by an open vestry, and therefore is not now transferred to the new vestry. Thirdly, the overseers were necessary parties to the making of these rates. The scope of the act is, to establish a single representation for the parishes included in Schedule (A.), and a double one for those in Schedule (B.), and the board of works in the latter class were to have the same powers as the vestry in the former class. The plaintiff cannot avail himself of section 3. of 19 & 20 Vict. c. 112, for the vestry referred to there is not the vestry of one of the parishes having a board of works, but is the vestry of a parish coming within Schedule (A.). There is a distinction between the two classes of vestries, as is apparent from the provision in section 2. Then section 31. provides for the uniting of parishes coming within Schedule (B.), and the forming them into districts; and by section 32. the vestries of such parishes are to elect members for the board of works of the district, and section 42. shews the great difference between the two kinds of vestries. Again, section 67. is very important, as shewing that the parishes in Schedule (A.) are referred to whenever the word "vestry" is used, unless there be something in the context repugnant to that condition.

[ERLE, J.-It says, "where in the pro

visions hereinafter contained"; "hereinafter" refers to that chapter, the whole of which relates to sewers, houses, buildings, lighting, and so on. Nothing can be clearer than that in this chapter all the duties for improving parishes, to speak generically, are transferred to the district boards, as far as concerns parishes in Schedule (B.), and to the vestries, as far as concerns parishes in Schedule (A.). The distinction is kept up till the 194th section. CROMPTON, J. -The question reduces itself very nearly to this: whether the old body in the parish was a vestry.]

It was not a vestry; the 2 Geo. 2. c. x.

M

makes the old hamlet a parish for ecclesiastical purposes only. If it had been intended that the churchwardens and overseers should not be distinct from the vestrymen, different words would have been used, and instead of saying "the churchwardens, overseers of the poor and vestrymen of the said parish are hereby authorized and required to assemble," &c., it would have said, "the vestrymen of the said parish," as, in fact, is said in section 12. of 24 Geo. 4. c. lx.

[CROMPTON, J.-Would not such a body of persons meeting together in the vestryroom be called in popular language vestry"?]

66

a

It is submitted that the language used shews that the churchwardens and overseers must be parties to making the rates, not as vestrymen, but in theirown capacity. There is no express enactment by which the powers that are vested in them are taken away. Next, the proviso in sect. 3. of 19 & 20 Vict. c. 112. preserves the powers which were vested in the old body appointed under the 2 Geo. 2. c. x.; it seems to be admitted, on behalf of the plaintiff, that they would still exist for some purposes; and, if so, why not for the purpose of making rates? The proper

construction is this: that the churchwardens and overseers, meeting under the 2 Geo. 2. c. x., were a "body other than any open, or elected, or other vestry," and that the power of making rates was given to them by the 26 Geo. 2. c. xcviii. as such a body. At any rate, the matter is left doubtful; and the overseers are entitled to the benefit of the doubt. The construction of those sections was discussed, before the Lords Justices, in Carter v. Cropley (2), where the question was, whether the right to appoint a clergyman had been transferred from certain trustees to the new vestry; and Lord Justice Knight Bruce said, "Neither of the statutes, I repeat, convinces or persuades me, nor do the two together, that whatever may have been designed or hoped out of parliament, the destruction or modification of such a title, or of the manner of enjoying or using it, was intended by either House of Parliament. If there were any such view,

(2) 26 Law J. Rep. (N.S.) Chanc. 246.

it should, and I must suppose would, have been openly expressed."

ERLE, J.-I am of opinion that this rule must be discharged. One question which we have to determine is this: whether the vestry of the parish of Spitalfields had power to make the rate in question at the time of the passing of the 18 & 19 Vict. c. 120. I think that it was a vestry which had power to make the rate. The local act, 2 Geo. 2. c. x, in section 9, describes the constitution of the new vestry of the new parish of Spitalfields. It is to consist of the rector, the churchwardens and overseers for the time being, and all other persons who have served or shall serve, or paid or shall pay fines for being excused from serving the office of churchwarden or overseer, as long as they continue householders within the parish and pay the poor-rate. They were created a vestry for Spitalfields; and then comes the question, whether they had the power of making the rate.

By the 26 Geo. 2. c. xcviii. ss. 16, 17, "the churchwardens, overseers of the poor and vestrymen of the said parish," are empowered to hold meetings, at which the said churchwardens and overseers of the poor and vestrymen, or the major part of them so assembled, are to ascertain the amount necessary for the relief of the poor, and the said churchwardens and overseers of the poor and vestrymen are to meet afterwards and make the rate. By the first act, the churchwardens and overseers were made vestrymen, and in the second act they are named as prominent characters, perhaps because it was meant that they should always be present in that character when a rate was to be made; but it is clear to my mind that they were not a separate body having a concurrent action with the vestry, and who, it was essential, should act separately from the vestry. The notion that it was intended to take away from the parish officers, as an independent authority, the power of making rates is strengthened by the fact that the statute points out that the rates are to be levied and recovered in such manner as the rates made for the relief of the poor are directed to be levied and recovered by the statute of Elizabeth, and that section 33. provides that the several laws relating to

the office of churchwardens and overseers of the poor, and for the relief and providing for the poor, shall still continue in force within the said parish, "except where the same are altered or explained by this present act." It is clear that the parish had a vestry, in whom was vested the power of making poorrates, and that in making such rates the presence of the churchwardens and overseers was necessary only, if necessary at all, in respect of their authority as vestrymen. Then, has that power been transferred to the vestry established under the 18 & 19 Vict. c. 120? When I read section 8. of that act, and compare it with section 90, and with section 3. of 19 & 20 Vict. c. 112, I come to the conclusion that it has been so transferred. Section 8. of the 18 & 19 Vict. c. 120, the words of which are quite wide enough to have that operation, enacts, that "such vestry," in each parish where it is created, "shall supersede any existing vestry therein, and exercise the powers and privileges held by such existing vestry, save as in this act otherwise provided." The expression is remarkable, because open, elected, and other vestries had been spoken of, and all question is set at rest as to what kind of vestries the section was intended to apply to. It is clear that any existing vestry would be superseded, and that the powers it possessed are extended to the new vestry. Then section 90. provides, that "all the duties, powers and authorities, for or in relation to the paving, lighting, watering, cleansing or improving of any parish included in any district mentioned in Schedule (B.)," and therefore of this parish,

66

or any part of such parish now vested in any Commissioners, vestry or other body," &c., "except such duties, powers and authorities as relate to the affairs of the church or the management or relief of the poor," &c., "shall become vested in and be performed and exercised by the board of works for such district." That section, taken together with section 8, makes it clear that the powers of vestries constituted under the local acts are transferred, as regards the making of poor-rates, to the new vestries; and as regards the general improvement and regulation of the parish to the district board. But, as if to remove

any doubt as to the effect of these sections in transferring the first of these two classes of powers, by section 3. of 19 & 20 Vict. c. 112, a declaration is made as to what was the intention of the legislature in passing the act of the former year. That section provides that, "save as herein before otherwise provided, all the duties, powers and privileges (including such as relate to the affairs of the church, or to the management or relief of the poor) which might have been performed or exercised by any open, or elected, or other vestry, or any such meeting as aforesaid, in any parish, under any local act or otherwise, at the time of the passing of the said act of the last session," (the 18 & 19 Vict. c. 120.) "shall be deemed to have become transferred to and vested in the vestry constituted by such last-mentioned act, except so far as any such duties, powers or privileges may, in the case of a parish included in any district mentioned in Schedule (B.) to the said act be vested, by section 90. thereof, in the board of works of such district." Then there is a proviso which states, "That all duties and powers relating to the affairs of the church, or the management or the relief the poor, which, at the time of the passing of the said act, were or might be exercised by any guardians, trustees or Commissioners, or any body other than any open, or elected, or other vestry, or any such meeting as herein before mentioned, shall continue vested in and exercised by such guardians, governors, trustees or Commissioners or other body as aforesaid." The power of making poorrates originally possessed by the vestry of Spitalfields does not fall within the proviso. This is a declaratory act, adverting to the former act, and declaring explicitly that it was the intention of the legislature to transfer these powers to the new vestry; and if that be so, the rate was lawfully made, and the plaintiff is entitled to our judgment. There are grounds for thinking that an intention existed on the part of the legislature to put aside the old vestries, and to establish a uniform administration, with a higher qualification than that of merely paying rates. It was contended that there was a difference between the functions of the vestries created for the parishes in Schedule (A.) and those created