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1859.

At the hearing, on the 22nd of SeptemApril 29. COWARD V. BADDELEY.

ber 1858, it appeared that the rate was in

the following form: Assault-Ballery-Hostile Intention. "An assessment for the relief of the

poor of the parish of Tonbridge (exceptIn order to constitute an assault and ing such part thereof as lies within the battery, punishable by the criminal law, Tonbridge Wells ecclesiastical district), the act complained of must be done with a and for other purposes, chargeable thereon hostile intention.

according to law," &c. To an action for assaulting and beating It was duly made and allowed by two the plaintiff, and giving him into custody, Justices, and notice of it published in the defendant pleaded son assault demesne. every church and chapel in the parish, The assault by the plaintiff consisted in the except in that part of the parish comprised plaintiff placing his hands on the defen- within the Tonbridge Wells ecclesiastical dant's shoulders, in order to call his attention district, and signed by the whole of the to the hose of a fire-engine which the de- overseers and church wardens of the parish fendant was superintending. The jury of Tonbridge. The parish of Tonbridge, having found that what the plaintif did was which is a very large parish, maintaining not with a hostile intention, -Held, that the its own poor, includes within its area the plea was not proved.

town of Tonbridge Wells and the hamlet

of Southborough. The former is about [For the report of the above case, see five and the latter three miles from the 28 Law J. Rep. (N.s.) Exch. 260.] 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 VINER, appellant,

did not when the Tonbridge burial board 1859.

was constituted contribute to the general June 4.

church-rate of the parish, but it did so TONBRIDGE, respondents.

contribute for the period of twenty years, Poor-Rate-Burial Board—18 f. 19

and has also its own separate churchwarVict. c. 128. ss. 3, 12, 13.

dens: the church wardens appointed for

the mother church at Tonbridge town Where a district of a parish is entitled, having no jurisdiction or any concern under section 12. of the 18 f. 19 Vict. within the Tonbridge Wells ecclesiastical c. 128, though not supporting its own poor, district as regards church or ecclesiastical to appoint a separate burial board, the rest matters. A vestry is held at Tonbridge of the parish, minus the district, may ap- Wells for the appointment of their churchpoint a burial board; and a poor-rate made wardens, making a church-rate, passing and assessed for the purposes of the burial accounts, &c. The bamlet of Southboboard on such part of the parish is good. rough has a church, which was built about

twenty-eight years ago; and, on the 19th Case stated on appeal from a decision of October 1831, a district was assigned of two Magistrates of the county of Kent, to it under the 1 & 2 Will. 4. c. 38; but no under the 20 & 21 Vict. c. 43.

separate church-rate is levied upon the disOn the 18th of September 1858 a sum

trict, which still contributes to the general mons was issued and served upon Charles church-rate of the parish. (Office copies Viner, the appellant, as occupier of a house, of the assignment of such district, and a &c., rateable to the relief of the poor of description and plan of the boundary thereof, the parish of Tonbridge, situate within the were annexed to the case.) Meetings are hamlet of Southborough, within the said held in the vestry of this church for the parish, on a complaint for not paying a purpose of appointing churchwardens, in poor-rate assessed on the 2nd of February pursuance of the said statute 1 & 2 Will. 4. 1858.

c. 38, and for other purposes connected NEW SERIES, XXVIII.-Mag. Cag.

2 K

THE
CHURCH WARDENS AND OVER-
SEERS OF THE PARISH OF

* William Cushion

, } Churchwardens.”

with the receipt of pew-rents and the appointing a burial board for such part of management and repair of the church. the parish as aforesaid. The regular vestries for the whole parish “Dated this 20th day of October 1855. are held at the mother church, at Ton- “ Thomas Dove, bridge town, at which a church-rate is made for the whole parish, except the At this meeting a burial board was agreed Tonbridge Wells ecclesiastical district. to be formed for the district described in Tonbridge Wells and Southborough have the notice. No vestry (or meeting in the each their separate burial grounds, the nature of a vestry) was held at Southborough one at Tonbridge Wells being detached church between the 20th of October and from the churches (that formerly attached the 8th of November 1855, nor were the to the district church having become full) inhabitants of Southborough consulted as and specially provided by a private com- to the formation of the said burial board pany for the purpose. The burial-ground further than that they were, as inhabitants at Southborough is the churchyard attached of the parish of Tonbridge, requested by to the church, which has been consecrated the said notice to attend the vestry meeting. by the bishop of the diocese, and burials The burial board, purporting to be are performed there under the order and constituted by the inhabitants of Tondirection of the bishop, contained in the bridge in accordance with the resolutions assignment of a district to the said church of of the said meeting, erected and made a Southborough. Neither Tonbridge Wells cemetery at the end of Tonbridge town nor Southborough appoints separate over- which is furthest from Southborough, from seers from the rest of the parish, nor main- the church of which the said ground is tains separately its own poor, there being distant nearly four miles, and from Tona common poor-rate for the entire parish. bridge Wells about six miles. The ecclesiastical district of Tonbridge The rate in question was made by the Wells forms a considerable part of the said burial board, so constituted as aforeparish of Tonbridge, and contains a con- said, and was made entirely for the pursiderable portion of the property rateable pose of defraying the expenses incurred by to the relief of the poor in the said the said burial board. parish.

The appellant contended that the rate On the 8th of November 1855 a meeting not being made by a legally constituted of the inhabitants of the parish of Ton- burial board, or for a legally constituted bridge was held in the vestry-room of the burial district, or for purposes for which mother church, at Tonbridge town, in the appellant was liable to be rated, or in pursuance of the following notice, copies the manner required by the 18 & 19 Vict. of which had been affixed to the doors of c. 128. ss. 11, 13, was altogether void, all the churches in the parish, including and could not legally be enforced by the that at Southborough, but excepting those Justices. It was contended, on behalf of within the ecclesiastical district of Ton- the alleged burial board, that the rate apbridge Wells :

pearing on the face of it to be regular, and “ The inhabitants of the parish of Ton- the property of the defendant prima facie bridge are requested to meet in the vestry- liable to be rated, the duty of the Justices room of the parish church of Tonbridge on to order it to be enforced was merely Thursday the 8th day of November next, ministerial, and that they had no power at 11 o'clock in the forenoon, for the pur- to inquire into and decide the question as pose of considering and determining whe- to the legality of the constitution of the ther a burial-ground shall be provided, burial board or the validity of the said under the 15 & 16 Vict. c. 85. and sub- rate. sequent acts relating thereto, for such part The Justices ordered a distress-warrant of the parish of Tonbridge as is not in- to issue, the ground of their decision being cluded in the Tonbridge Wells ecclesias- that they were of opinion that the rate tical district. And in case it should be appearing on the face of it to be a poorresolved that a burial-ground shall be rate duly allowed, their duty was merely so provided, then also for the purpose of ministerial, and that they ought not to inquire into the actual objects of the rate, the 18 & 19 Vict. c. 128. 8. 3. enables the or the constitution of the alleged burial overseers of a parish to call meetings of the board, or into the validity of the premises vestry of the parish for the purpose of aprated.

pointing a burial board. Section 11. enables Lush, for the respondents.—The burial parishes to unite, and section 12. enables board was well constituted. Section 12. the vestry or meeting in the nature of a of the 18 & 19 Vict. c. 128. enacts, that vestry of any parish, township, or other "The vestry or meeting in the nature of a district, not separately maintaining its own vestry of any parish, township, or other poor, to elect a burial board of its own; district not separately maintaining its own but Tonbridge, minus Tonbridge Wells, poor, which has heretofore had a separate plus Southborough, is not such a district, burial-ground, may appoint a burial board, nor is there a vestry or meeting in the &c. " and exercise such powers as hy this nature of a vestry for the parish of Tonand the other acts are vested in the bridge, minus Tonbridge Wells district. vestry of a parish separately maintaining How can a poor-rate be made without apits own poor; and the burial board so pearing on the face of it to be made for a appointed shall have all the powers for part of the parish only? And such a rate providing a burial-ground and otherwise would be bad. as if such parish, township, or other dis- [LORD CAMPBELL, C.J.-That depends trict had been a parish separately main- on the construction to be put on the statute. taining its own poor"; and by section Section 12. seems to describe as closely 13. power is given to make a rate as possible such a district as Tonbridge for such parish or district. Tonbridge Wells.] Wells is such a district as is contemplated But, granting that, the section does not by section 12, but Southborough is not, as enable a burial board to be appointed for it has no vestry and no separate ecclesias- the other part of the parish. He citedtical jurisdiction ; if, therefore, Tonbridge The Queen v. St. Peter's, Lc., 27 Wells is entitled to appoint a separate Law J. Rep. (N.s.) Q.B. 232. burial board, it follows that the rest of The Queen v. Peters, 6 E. & B. 225 ; the parish, which in effect is the parish for 8. C. nom. In re Sunderland Vestry, this purpose, can also appoint a board for 25 Law J. Rep. (N.s.) Q.B. 271. itself.

The Queen v. Gladstone, 7 E. & B. 575; G. Denman, for the appellant.–South

nom. Ex parte Urquhart, 26 borough had a meeting in the nature of a Law J. Rep. (N.s.) Q.B. 213. vestry; but whether it had or not there is no power for a part of a parish, con- LORD Campbell, C.J.-I am of opinion sisting of the parish minus à particular that this burial board was duly constituted. district, to elect a burial board. The This seems to depend on whether Tonbridge 18 & 19 Vict. c. 128. must be read in Wells is entitled to have a burial board of connexion with the 15 & 16 Vict. c. 85, by its own, for if it is, the rest of the parish section 10. of which the vestry of a parish must, as a necessary consequence, be enis enabled to elect a burial board, and by titled to constitute å burial board for the Section 52. "parish” shall mean 'every parish exclusive of Tonbridge Wells. Now, place having separate overseers and sepa- it seems to me that there can be no doubt rately maintaining its own poor.” Again, that Tonbridge Wells, being a separate section 19. says, that the expense of the ecclesiastical district, but not separately burial board is to be paid out of the poor maintaining its own poor, which before the rate. Section 23. allows parishes to join, passing of the 18 & 19 Vict. c. 128. had a and "vestry,” by section 52, is to mean the separate burial ground, is entitled to have inhabitants of the parish in vestry assem- a burial board of its own; and this being bled; therefore, under the original act so, by implication, if not by the express (which is extended to all England by the words of the 12th section, the rest of 16 & 17 Vict. c. 134.) there is clearly no the parish may appoint a burial board for power for such a part of a parish as the itself exclusive of that township. present to appoint a burial board. Then, WIGHTMAN, J.-I did not hear part of the argument: I do not therefore propose separate burial board, but argues that when to take any part in the judgment.

s. C.

a severance has thus been effected the rest ERLE, J.-I am of opinion that this was of the parish is incapacitated from electing clearly a well constituted burial board, a burial board. Now, it is perfectly clear Section 11. provides for the union of pa- that the section, when it says, that where a rishes, and enacts that a parish, plus some parish was so large as to have a district other place, may have one burial board, with a separate burial ground, that district Then, section 12. provides for a part of a may have a separate burial board, intended parish, that a parish, minus some part of by implication that the rest of the parish it, may have a burial board of its own, so might also have a burial board. that a district may be severed from the CROMPTON, J. concurred. mother parish. Mr. Denman concludes that Tonbridge Wells had a right to a

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.

reco-

ACTION—right of action not given by words re-
covered as damagesin special Act)-A special
act, incorporating the Railways Člauses Act,
1845, and the Towns Improvement Clauses
Act, 1847, enacted, that certain expenses in-
curred in paving streets, &c. might be
vered as damages.” Action brought to recover
expenses go 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, dc. of Blackburn v. Parkinson, 7

against Justices for an illegal conviction.
See Conviction.
ADMIRALTY-Felony on board ship in the Bristol

Channel. See Jurisdiction.
AGENT — Disclosure by. See Principal and

Agent.
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. 8. 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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