in the pound has always been the same in both, the overseers of the district taking that amount which had been already fixed by the overseers of the parish when they made a rate subsequent to the parish, or consulting the overseers of the parish as to the amount which they were about to fix when they made a rate prior to the parish. There was no workhouse in the district; but the poor of the district who required indoor relief were always sent to the workhouse of the parish, and there maintained by the overseers of the parish out of the rate levied by them.(a) At the end of the year the overseers of the parish and of the district seem to have compared their respective accounts; *and whichever had money in hand beyond their own expenditure [*357 Landed such money or balance to the other. The accounts of the overseers of the district, after being allowed by their own vestry, were submitted to the vestry of the parish and allowed by them, previous to their being exhibited before the justices, but not the accounts of the parish. overseers vice versâ."(b) The case stated, however, that, since the appointment of a district auditor under stat.. 7 & 8 Vict, c. 101, that officer had refused to allow any such payments of balances by either district to the other. The case then stated that the rate appealed against was made on 20th April, 1846, and assessed upon rateable property situate in Whaplode Drove only, and was of no greater amount than was required if Whaplode Drove ought by law to be separately rated for its own poor, but was higher than would have been required if there had been one uniform rate over both districts. The Poor Law Commissioners, by order of 23d November, 1835, declared that eleven "parishes or places" named in their order, and among them Whaplode Drove and Whaplode (mentioned as numbers 10 and 11 of the said parishes, &c.), should be united for the administration of poor law relief by the name of the Holbeach Union;" and that a fixed number of guardians should be separately elected for each district of the said union: That the order had always been in force from 7th December, *1835, when it came into opera[*358 tion; and that Whaplode Drove and Whaplode had separately contributed to the common fund of the Union in the proportions defined by the said order. 66 The respondents contended that Whaplode Drove was, at the time of the passing of stat. 43 Eliz. c. 2, either actually or by reputation, a parish, and was therefore entitled to have overseers appointed for it, and to maintain its own poor separately from Whaplode: or that, since stat. (a) The case stated that orders of removal were made to and from Whaplode Drove and out parishes: but no such orders had ever been made as between Whaplode Drove and Whaplode. (b) The statement in the case, as to payment of balances, was that, if, after audit and allowance, the officers of Whaplode Drove had a balance in their hands, which was most usually the case, such balance was by them paid over to the officers of Whaplode; and there have been instances when balances have been due to the officers of Whaplode Drove, in which case, until the time of the appointment next mentioned, such balances were paid over to them by the officers of Whaplode. VOL. XIII.-28 T 13 & 14 Charles 2, c. 12, overseers had been appointed for Whaplode Drove under sect. 21 of that act. The question for the opinion of the Court was, whether Whaplode Drove, upon the grounds above mentioned, or any of them, was entitled to have overseers appointed for it, and to maintain and manage its own poor, and to have rates and assessments made and levied thereon for that purpose separately. The Court was to have all the power to draw inferences and conclusions from the facts stated which a jury upon the trial of a civil action would have. If the Court should be of opinion that the district of Whaplode Drove was so entitled, the rate was to be confirmed; if the Court should be of a contrary opinion, to be quashed. The case was argued in last term.(a) Whitehurst and Tomlinson, in support of the order of sessions.-First: the facts stated in the case show that, from a very early time, the two districts of Whaplode and Whaplode Drove were, for all ecclesiastical pur*359] poses, completely severed. Whaplode Drove is shown *to have been in fact a parish within the definitions in 1 Blackst. Com. 112, and 1 Burn's Ecclesiastical Law, tit. Chapel, p. 300, 9th edition. The fair inference from the facts appearing on the case is, that this state of things was immemorial, and that Whaplode Drove was originally a separate parish from Whaplode: Attorney-General v. Brereton, 2 Ves. sen. 425. But it is not necessary to consider whether the districts were distinct parishes; for it is clear that at the passing of stat. 43 Eliz. c. 2, the district of Whaplode Drove had distinct church wardens from those of the parish. Wherever that was the case, as the churchwardens of the parish could not usurp the powers of the churchwardens of the district (which they must have done had they acted as overseers of the whole), the statute must have been inoperative unless section 1 was construed to apply to the churchwardens de facto of districts not, properly speaking, parishes. That construction was very early put upon the statute; Hilton v. Pawle, Cro. Car. 92, Nichols v. Walker, Cro. Car. 394; and has been confirmed at a later period; Forest of Dean v. Linton, 2 Salk. 487. The cases have turned entirely on the completeness of the ecclesiastical separation de facto at the time of the passing of stat. 43 Eliz. c. 2, the conditions of which are enumerated in Rudd v. Morton, 2 Salk. 501, S. C. 4 Mod. 157, nom. Rudd v. Foster, and all of which are found here. Some incidents of such a separation were wanting in each of the cases that may be cited on the other side, as Regina v. The Justices of Worcestershire, 12 A. & E. 28 (E. C. L. R. vol. 40), in which, however, the authority of Rudd v. Morton was recognised. If Whaplode Drove is not a separate reputed parish within the meaning of stat. 43 Eliz. c. 2, then the whole parish is unable to have the benefit of that statute, and the district is (a) January 20th and 24th. Before PATTESON, and WIGHTMAN, Js. Lord DENMAN, C. J., and COLERIDGE, J., were sitting in the Criminal Court of Appeal. *360] It may be said that the within stat. 13 & 14 C. 2, c. 12, sect. 21. justices should have found this as a fact; Rex v. Newell, 4 T. R. 266: they have, however, in substance found the fact by confirming the rate. And the practice appears by the case to have been to treat these as separate parishes, and to keep the rates separate in every respect, except that, by a sort of irregular anticipation of a Poor law union, the officers of Whaplode Drove paid the parish for the use of their workhouse for in-door relief. [WIGHTMAN, J.-The statement in the case is scarcely consistent with that explanation; for, if that was so, there never could have been a balance due to Whaplode Drove. (a)] The statement does not show intelligibly how a balance could be payable to them in any way. The proceedings of the Poor Law Commissioners, acquiesced in by the inhabitants, have some weight as evidence of reputation that the districts were separate. Pashley and Worlledge, contrà, relied upon the payment of tithes to the vicar, the want of a second overseer for Whaplode Drove before the year 1785, the common workhouse, and the community, in effect, of the fund for the relief of the poor, and the mode of keeping the accounts, to show that the rate was bad; and they cited Rex v. Newell, 4 T. R. 266, Malkin v. Vickerstaff, 3 B. & Ald. 89 (E. C. L. R. vol. 5), Bastock v. Ridgway, 6 B. & C. 496 (E. C. L. R. vol. 13), and Price v. Quarrell, 12 A. & E. 784 (E. C. L. R. vol. 40). They referred to Forest of Dean v. Linton, 2 Salk. 487, Weeden v. *Walker, 2 Roll. Rep. 160, and [*361 Rudd v. Morton, to show that a place must both be a reputed parish and also have a full complement of overseers, to be within stat. 43 Eliz. c. 2: and they distinguished Hilton v. Pawle, Cro. Car. 92, and Nichols v. Walker, Cro. Car. 394, S. C. 1 (W.) Jones, 355, from the present case on this ground. The judgment of the Court was delivered in this vacation (February 24th) by WIGHTMAN, J., who, after stating the question, and the substance of the case as above (pp. 355-357, antè), said: Under all these circumstances, we cannot but see that the fund for the maintenance of the poor has always been in substance and reality a joint fund, notwithstanding the mode in which the parts of it have been ́ assessed and collected, and even applied during the year. The having only one workhouse, the accounting at the end of the year, and the submitting the district accounts to the vestry of the parish, are conclusive facts, and bring this case within the principle of many decided cases, especially Rex v. Newell, 4 T. R. 266, Bastock v. Ridgway, 6 B. & C. 496, Malkin v. Vickerstaff, 3 B. & Ald. 89 (E. C. L. R. vol. 5), Rex v. Justices of Salop, 3 B. & Ad. 910 (E. C. L. R. vol. 23), Regina v. Justices of Worcestershire, 12 A. & E. 28 (E. C. L. R. vol. 40), Regina v. Marriott, 12 A. & E. 35, note (c) (E. C. L. R. vol. 40), Price v. Quar (a) See p. 357, note (b), antè. rell, 12 A. & E. 784 (E. C. L. R. vol. 40). Therefore the statute 13 & 14 C. 2 does not apply to this case. Whaplode and Whaplode Drove, *notwithstanding the largeness of their extent, might have had, and have had, the benefit of the statute 43 Eliz. c. 2. *362] But it is said that Whaplode Drove was, before and at the time of the passing the statute of 43 Elizabeth, a parish or reputed parish, and therefore entitled to be separate from Whaplode in regard to the maintenance of the poor. To establish this point, reliance was placed on the cases of Attorney-General v. Brereton, 2 Ves. sen. 425, Hilton v. Pawle, Cro. Car. 92, Nichols v. Walker, Cro. Car. 394, S. C. 1 (W.) Jones, 355, Forest of Dean v. Linton, 2 Salk. 487, Rudd v. Foster, 4 Mod. 157, S. C. nom. Rudd v. Morton, 2 Salk. 501. These cases have all been cited and commented upon at different times, and especially in Price v. Quarrell, 12 A. & E. 784 (E. C. L. R. vol. 40). They show that, where the ecclesiastical separation is complete, as it certainly is in the present case, with the exception of tithes, the districts may be separate parishes or reputed parishes; but not that they necessarily must be. The inhabitants of a chapelry may be discharged from contributing to the repair of the parish church without ceasing to be part of the parish: and the entire separate maintenance of the poor has always been considered as an important ingredient in determining whether a district was a parish or a chapelry. That ingredient we consider to be wanting here: and, when to that is added the very strong fact of the lands in the district of Whaplode Drove paying tithes to the vicar of Whaplode, we are constrained to say that in our opinion the evidence shows that Whaplode Drove was *not before and at the time of the passing of stat. 43 Eliz. c. 2, a parish, or reputed parish. *363] What has happened since the passing of stat. 4 & 5 W. 4, c. 76, does not weigh with us in coming to our conclusion. The Poor Law Commissioners do not profess by any act of theirs to alter, nor could they by law alter, the relation in which Whaplode and Whaplode Drove stood to each other. They have acted on the supposition that by law those districts were separated from each other; which supposition we think erroneous and the refusal of the auditor, under stat. 7 & 8 Vict. c. 101, to allow the payments which had usually been made cannot have any legal effect whatever. Upon the whole we-that is, my brother PATTESON and myself, before whom only this case was argued-are of opinion that the question put to the Court by the Court of Quarter Sessions must be answered in the negative, and the rule to quash the rate made absolute. Rule absolute to quash the rate.(a) (a) Reported by H. Davison, Esq., and C. Blackburn, Esq. IN THE EXCHEQUER CHAMBER. RYALLS v. The QUEEN. Feb. 7. Reported, 11 Q. B. 795 (E. C. L. R. vol. 63). *The QUEEN v. The Justices of LANCASHIRE. [*364 Reported, 12 Q. B. 305 (E. C. L. R. vol. 64). The QUEEN v. The Inhabitants of BRECKNOCKSHIRE. Reported, 15 Q. B. 813 (E. C. L. R. vol. 69). The Churchwardens and Overseers of the Parish of BIRMINGHAM v. SHAW and MELSON, Esquires, and WILLIAMS. Reported, 10 Q. B. 868 (E. C. L. R. vol. 59). BAILEY v. HARRIS. Feb. 10. Reported, 12 Q. B. 905 (E. C. L. R. vol. 69). IN THE EXCHEQUER CHAMBER. (Error from the Queen's Bench.) CLEMENT AUGUSTUS GREGORY PETER LEWIS, Baron de Error on a judgment for the Crown in a petition of right may be brought in the Exchequer |
