BURTON v. VESTRY OF ST. GILES-IN-THE

FIELDS AND ST. GEORGE, BLOOMSBURY. merely as to the amounts in it, but is not conclusive as to the name of the occupier. The occupier is constantly changing, and it is wholly immaterial what is the name of the occupier in the

valuation list.

Therefore the plaintiff's appeal against the valuation list on the ground that he was not the occupier was a wrong course of procedure and was futile, as it was an appeal on a ground with respect to which the valuation list was not conclusive. Then as to section 44, the section does not apply at all to a case like the present. The section means this. The occupier is placed in the first instance in a provisional list. He has no appeal against that list, but if he is summoned for rates he can defend himself by showing that he is not the occupier. Then this provisional list passes into and is incorporated with the supplemental list. The person rated then has the right of appeal; and if on such appeal he can prove that he has been rated at too much, then under section 44 he can recover the excess which he has had to pay. In the present case the appeal was only against the valuation list, and there was never any appeal, or in fact, any question, as to the amount in the valuation list. The appeal contemplated by the section is an appeal against a rate or tax, that is, an appeal against the amount of the rate or tax. Here there was no such appeal against the amount of the rate or assessment, but only an appeal against the valuation list, and the amount of the rate, tax, or assessment remains precisely as it was before the appeal. All that has been done is simply to say that the plaintiff was not the occupier, but there has been no alteration in the valuation list which has altered "the amount of the assessment, rate or tax," so as to bring section 44 into operation. If a person is assessable and his complaint is that he is assessed at too much, then the section applies; but if he says he is not assessable at all, as not being the occupier, then the section does not apply. The vestries are mere conduit pipes for receiving these rates and handing them over and they cannot get them back again. As to the two rates that were paid after summonses had been taken out, these, at all events, cannot be recovered, as they were paid under compulsion of law. [He referred to Ryde on Rating, pp. 570-1, and the cases there cited.]

65 J. P. 167.

was

R. C. Glen in reply.-The procedure adopted by the plaintiff was right. The plaintiff's objection was that he was not the occupier at all. It is true that he could have raised that objection before the magistrate and the magistrate would have had jurisdiction to deal with such objection. He would have jurisdiction to inquire into questions of non-occupation and he could refuse to issue a distress warrant if that objection were sustained. The quarter sessions have also jurisdiction to deal with the objection on an appeal to them. If the defendants' contention were well founded the plaintiff would have to go to the magistrate to raise the question of non-occupation and to the quarter sessions to raise questions of value. If that were so, two proceedings would also be necessary in cases where the person was objecting both to his rateability at all, and also as to the amount of the rating. To decide the question of non-occupation or rateability the person would have to wait till the rate actually levied and then come before the magistrate and prove that he was not the occupier and not rateable at all. To decide the question as to the amount of the rating he would then have to appeal to quarter sessions against the amount. It could never have been intended that two such proceedings would be necessary. The plaintiff by appealing to quarter sessions against the supplemental list can raise both questions; he can raise the question that he is not the occupier and not rateable at all, and also, if he thinks fit, the question that he is rated at too high a figure. By the first part of section 44 the person rated must pay the rate according to the valuation list notwithstanding any appeal, and by the second part of the section-which applies hereif on such appeal he is able to show that he has been rated at too much, either by reason of the fact that he is not the occupier at all or by reason of the figure being too high, then in either case there is an alteration in the valuation list "which alters the amount of the assessment, contribution, rate, or tax, levied thereunder " which brings the latter part of the section into operation and enables the person to recover back the sums he has paid in excess. It is conceded that if the plaintiff had succeeded in getting an alteration which reduced the

BURTON v. VESTRY OF ST. GILES-IN-THEFIELDS AND ST. GEORGE, BLOOMSBURY. amount the section would have applied. A fortiori does it apply when he succeeds in getting the largest reduction possible by having the whole rated wiped out.

MATHEW, J.-It seems to me that section 44 applies to the claim in this case Counsel for the defendants has argued that the appeal contemplated by section 44 is not an appeal, as the appeal in the present case was on the ground that the appellant was not the occupier of the premises in respect of which he is rated. It was argued that any such objection as that, namely, that the appellant was not the rateable occupier, must be dealt with differently and as a defence on an application made to the magistrate to enforce the payment of the ates. If the earlier words of the section were alone to be found there, there would be something in favour of that contention for the defendants. The earlier part of the section says: "Notwithstanding any appeal under this Act, &c.," and the appeal under the Act seems to be an appeal against the valuation list, and the section goes on to say: "Where in consequence of the decision on any appeal under this Act to assessment sessions or a superior court, an alteration in such valuation list is made which alters the amount of the assessment, contribution, rate, or tax levied thereunder, the difference, if too much has been paid, shall be repaid or allowed." What occurred in this case was that there was an appeal by the plaintiff to quarter sessions, and it was a legitimate appeal, on the ground that he was not an occupier. The court of quarter sessions thought that he was the occupier, but reserved its judgment subject to a case to be stated, and on the case coming before the Queen's Bench Division it was held by the judgment of the superior court that the plaintiff was not the occupier and was not liable to be rated. Then, that being so, the only question now is whether the fact that the plaintiff is held to be liable for no part of the rate is an "alteration" in the valuation list within the meaning of the section (section 44). The objection was taken on behalf of the defendants that this money has been received by the vestry, the defendants in this case, and has been paid away and that therefore it would be extremely hard, or contrary to law, that they should be compelled to repay the money as to which

65 J. P. 167. they were the mere agents to hand it over, or the mere conduit pipes as they were called. That argument, however, would strike away the whole of the section, because in the cases to which Mr. Macmorran says the section is confined, the cases, namely, where there is an alteration in the amount not going to the whole of the rate, the same argument might be urged, namely, that the vestry are only conduit pipes, and have paid the money away, and that therefore they ought not to be called upon to repay it. The Act has provided for that very case, because there is a provision that where an alteration in the valuation list is made which alters the amount of the assessment or rate, the money shall be repaid in case too much has been paid. I presume that effect will be given to that Act without saying anything about the course to be taken by the vestry. The question then is reduced to an extremely narrow one, namely, whether an entire alteration of the rate is an alteration within the meaning of the Act. I am of opinion that it is. Therefore it follows that the plaintiff is entitled to recover the amount he has paid. It appears that as to two of the rates they were paid after summonses had been taken out and after proceedings had been taken before the magistrate to enforce payment. I think that these two rates must follow the fate of the others. They are all cases in which an "alteration" has been made in the valuation list, which entitles the plaintiff to recover under section 44 the amount he has paid in respect of these rates. My judgment therefore will be for the plaintiff for the amount claimed, namely, 921. 6s. 4d. with costs.

Judgment for the plaintiff. Solicitors for the plaintiff : John H. Mote and Son.

Solicitor for the defendants: Henry C. Jones.

65 J. P. 170.

BOW COUNTY COURT.

(Before his Honour Judge French.)
January 25.

GUARDIANS OF WEST HAM UNION v. GUARDIANS
OF KINGSTON-ON-HULL INCORPORATION.

Poor law-Maintenance of pauper removed under order afterwards abandoned Time for claim-Poor Law (Payment of Debts) Act, 1859 (22 & 23 Vict. c. 49) s. 1.

Where a pauper was wrongfully removed to

the workhouse of the parish alleged in the order of removal to be the place of settlement, but the pauper was afterwards received back to the workhouse of the removing union, and the order of removal subsequently abandoned,

Held, that a claim for the maintenance of the pauper during the period he was maintained in the West Ham workhouse was not barred by the Poor Law (Payment of Debts) Act, 1859, the same having been made within three months of the half-year during which the order was abandoned, though not within three months of the halfyear during which the pauper was removed back.

Action for the recovery of the costs of maintaining a pauper in the plaintiffs' workhouse from the 17th of February to the 23rd of March, 1900.

The guardians of Kingston-upon-Hull obtained an order for the removal of a pauper to the West Ham Union.

The

order was received by the clerk to the guardians of West Ham on the 24th of January, 1900. Through a mistake of an officer the pauper was removed to West Ham Workhouse on the 17th of February, 1900, although a copy of the depositions had been applied for by the West Ham guardians within the proper time limit. Notice of appeal was served on the defendants in due course. On the 23rd of March, 1900, the defendants caused the pauper to be removed back to their own workhouse. On the 7th of April they abandoned the order of removal.

65 J. P. 170. Maintenance was claimed to be due from the defendants to the plaintiffs for the period between the 17th of February and the 23rd of March, but no claim was delivered until the 7th of December, 1900.

Section 1 of the Poor Law (Payment of Debts) Act, 1859, is as follows:-" With respect to any debt, claim, or demand, which may, after the passing of this Act be lawfully incurred by, or become due from, the guardians of any union or parish, or the board of management of any school or asylum district, such debt, claim, or demand shall be paid within the half year in which the same shall have been incurred or become due or within three months after the expiration of such half year, but not afterwards, the commencement of such half year to be reckoned from the time when the last half year's account shall be, or ought to have been, closed according to the order of the Local Government Board, provided that the Local Government Board by their order may, if they think fit, extend the time within which such payment shall be made for a period not exceeding twelve months after the date of such debt, claim, or demand."

No application had been made to the Local Government Board to extend the time for the payment of the claim in question.

Earle, for the plaintiffs, said the short point to be decided by his Honour was whether their claim was made in time, or was barred by the statute. The half year during which the pauper was maintained in the plaintiffs' workhouse ended on the 27th of March, 1900, but the order of removal in consequence of which these proceedings arose was abandoned on the 7th of April, and the half-year which included the date of the abandonment only ended on the 29th of September. His contention was that the date of the end of the proceedings was not until the order was abandoned, that not until then did the obligation to pay for the maintenance imposed upon the plaintiffs by the order of removal cease, and that therefore the claim, which was made on the 7th of December, 1900, that was, within the three months after the expiration of the half-year within which the debt, claim, or demand was incurred or became due, was not barred by effluxion of time.

F. G. Grimwood, for the defendants, said the end of the half-years for the purposes of closing their accounts were fixed by sanction

CORPORATION.

of the Local Government Board as the 27th of March and the 29th of September. The amount due to the plaintiffs was ascertained on the 23rd of March, the date on which the pauper was removed back to the defendants' workhouse; what took place subsequently was a different proceeding altogether-an order for costs which could not have been included. The plaintiffs were entitled under article 64 of the Local Government Board's instructions to deliver to the officer removing the pauper back a statement showing how much was due to them.

His Honour Judge FRENCH.-In point of fact if there had been no previous proceedings the defendants' contention would have been right, but it was put against them that the plaintiffs were not in a legal position to sue for the cost of the support of the pauper because the order of removal was standing and did not come to an end till the 7th of April, the date of the abandonment. It might be quite true that the order was going to be abandoned and was treated as a nullity, and it practically amounted to completion, but legally and technically the order continued to exist. There must be judgment for plaintiffs with costs.

Judgment for plaintiffs. Solicitor for plaintiffs: Hillearys, London. Solicitor for defendants: R. H. Wilson, Hull.

QUEEN'S BENCH DIVISION.

January 15.

FULHAM VESTRY V. MINTER.

Metropolis New street Paving - Frontagers - Open space dedicated to the public-Liability to contribute - Land extra commercium - Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), s. 105 -Metropolis Management (Amendment) Act, 1862 (25 & 26 Vict. c. 102), s. 77-Open Spaces (London) Act (40 & 41 Vict. c. 35), s. 1-Metropolitan Open Spaces Act (44 & 45 Vict. c. 34), s. 5London Open Spaces Act, 1893 (56 & 57 Vict. c. lxxi.), s. 25.

A plot of ground was acquired by the appellants, the vestry, in trust "for the perpetual use thereof by the public for exercise and recreation and for no other purpose." The appellants erected thereon under the powers given by the London Open Spaces Act, 1893, a band stand and refreshment-rooms, which were let to contractors, and a gardener's cottage.

Held, that the vestry as owners of such land

were liable to contribute towards the paving of a new street abutting on one side of such land, and that as the land did actually produce a rent it was not extra commercium

Case stated by John Rose, Esquire, one of the magistrates of the police-courts of the metropolis sitting at the West London Police-court.

1. The respondent Minter was summoned before me on a complaint by the clerk to the appellants for that he, the respondent, had refused or neglected to pay to the said vestry or to their said clerk the sum of 2281., although the same had been duly demanded, such sum being charged upon him as owner of certain houses or lands forming or bounding or abutting upon a certain new street or way known as Bishop's Park-road, section 1, and which houses or land were set out and marked Nos. 1, 3, and 6 on the plan of the said new street in respect of paving works to be carried out in the said new street under and by virtue of the provisions of the

FULHAM VESTRY v. MINTER.

Metropolis Local Management Act, 1855, and the other Acts of Parliament amending the same, and the summons was heard by me on the 17th and the 31st of May, 1900.

2. Upon the hearing of the summons the following facts were proved or admitted :

3. Bishop's Park-road, section 1, is a new street within the parish of Fulham. On the north-west side thereof it is bounded by a row of houses. On the south-east by an open space called Bishop's Park.

4. By an indenture dated the 15th of March, 1894, and made between the Bishop of London of the first part, the Ecclesiastical Commissioners for England of the second part, and the Vestry of the Parish of Fulham of the third part (a copy of which is annexed to and is to be taken as part of this case), the land therein described was conveyed to the appellants in fee simple to the end and intent that the same premises should be at all times thereafter kept and maintained as an open space for the perpetual use thereof by the public for exercise and recreation. Part of the land thereby conveyed abuts on the south-eastern side of the said new street. This land was acquired by the appellants under the powers conferred upon them by the Open Spaces Act.

5. By 40 & 41 Vict. c. 35, s. 1, such open space is held "in trust for the perpetual use thereof by the public for exercise and recreation," and by 44 & 45 Vict. c. 34, ss. 3, 4, and 5, "for no other purpose." By 56 & 57 Vict. c. lxxi. the vestry may erect thereon (inter alia) convenient and ornamental buildings, and such appliances as they may think requisite for purposes of exercise and recreation and for other like purposes.

6. Upon the said open space of land have been erected a band stand at the point marked A on the plan annexed to the said indenture, a cloak-room at the point marked B, and a refreshment-stall at the point marked C. The appellants let the refreshment-stall at a rent of 251. per annum to a caterer. The band stand was not let, but seats for the public were let by the vestry to a contractor at a rental.

7. On the 17th of January, 1900, the appellants resolved as follows: "That whereas Bishop's Park-road, section 1, in the parish of Fulham, being a new street, is not paved to the satisfaction of this vestry, and it is deemed by them to be necessary and

65 J. P. 180. expedient that the same should be so paved It is hereby resolved and ordered that the said street be taken and paved under the provisions of 18 & 19 Vict. c. 120, and 25 & 26 Vict. c. 102; that the surveyor's plan and estimate be approved and adopted; that the estimated cost of the said paving works be apportioned upon the owners of the houses or land abutting upon or bounding the said street at the proportions and in the amount as set forth in the apportionment hereby made, approved, and sealed with the official seal of the vestry, and the officers instructed to take the necessary steps for collecting the apportioned amounts within 14 days." The plan and apportionment in duplicate were sealed accordingly.

8. The plan and copy of the apportionment are annexed to and form part of this case.

9. The respondent was the owner of certain houses in the said new street, viz., Nos. 1, 3, and 6, Bishop's Park-road, section 1, and by the said apportionment the sum of 2281. was charged upon him as such. The said suin had been demanded of him and was not paid.

10. The said apportionment proceeded upon the basis that the cost of paving the said new street should be defrayed by the owners of the houses or lands on the northwest side thereof, and not in any part by the owners of the land on the south-east side thereof.

11. It was contended upon the part of the respondent that the apportionment was invalid, for that a part of the cost of the paving ought to have been apportioned upon the appellants as owners of the said open space abutting upon the south-east side of the said new street.

12. It was contended upon the part of the appellants that the said apportionment was valid, for the said open space was extra commercium, or subject in perpetuity to the burden of a public right which deprived the appellants of the beneficial use of it.

13. I was of opinion that the contention of the respondent was correct for the reasons stated in my judgment, a copy of which is hereunto annexed and may be referred to, and I dismissed the summons subject to this

case.

14. The question for the opinion of the court is whether my determination was right in law. If the court should be of opinion that it was, my decision is to stand;