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have been decided.] In Barons v. Luscombe (3 A. & E. 589), it was doubted whether justices could suspend the execution of a warrant of distress to levy a rate, their duty being performed when it was issued. But even if there should be the power to abandon, it appears distinctly upon the affidavits that only the costs of the adjournment had been paid, and therefore the abandonment could not take place, as the parties would not be placed in their former position. Even the abandonment of the order of removal does not prevent the appellants going to the sessions for costs.
The Atlorney General and Pashley, contrà.-By analogy of cases upon orders of removal, this may be abandoned. An order of removal may still be alive for the purposes of costs (Reg. v. Townstall, 3 Q. B. 457); an order void as this is, and certain to be quashed upon appeal, is the same as if no order had been made. It is not equivalent to a judgment recovered; it is more like a failure by nonsuit. The case of Rex v. England is distinguishable, for the Sessions had no jurisdiction when the application had been made to justices. A party may always abandon an order in his own favour. (Maunder v. Collett, 16 L. J. 17, C. P.; McDougall v. Nicholls, 4 M. & W. 67; Reg. v. West Riding, 2 Q. B. 705; Reg. v. Bolton, 1 New Mag. Cas. 126; and Reg. v. St. Anne's, Westminster, suprà, 62, were cited.)
Cur. adv. vult.
Judgment. LORD DENMAN, C. J.-A mandamus had been applied for to hear evidence in a case of bastardy. The mother appeared before the Rev. W. Hinchcliffe and W. Baker, Esq., two justices, at the petty sessions on the 14th of April, and was sworn respecting the father of her child. The case was adjourned to the next petty sessions, held on the 17th, when Mr. Baker being present, and Mr. Hinchcliffe and other justices, who formed the court when she applied for an order, the attorney for the putative father required that she should be resworn ; this was objected to by the attorney for the mother, and the order was then made. Notice of appeal was instantly given, and afterwards, and before the time of holding the quarter sessions, the attorney for the mother gave notice of abandoning the order, and tendered 11. 10s. for the costs, which sum was accepted by the attorney of the putative father, which he swears he accepted as for the costs of the adjournment, and that it was inadequate to cover the whole of the costs of the order. This was very probable. The attorney for the mother then applied to the two justices named to hear the case a second time, and the opinion of a learned barrister was produced ; and though they refused not to hear the evidence at first, they were determined by an opposite opinion of another barrister not to make the order, alleging that they could not do so because the order first made had not been reversed. We need not enter into any general discussion of the doctrine touching the abandonment of the order, because it depends on the circumstance of the opposite party, before the order was made, being completely reinstated in the position he occupied before. But, in the present case, the attorney for the mother had not paid the costs of the order which she is said to have abandoned, and had not therefore restored the opposite party to the condition in which he would have been if she had not obtained the order. We think, on these grounds, without considering the other point, that the justices ought not to be required to make another order; and this rule will, therefore, be discharged with costs.
Rule discharged. E.W.
COURT OF QUEEN'S BENCH.
Sittings after Hilary Term.- February 10, 1847. THE QUEEN v. THE CHURCH WARDENS AND OVERSEERS OF BANGOR. Parochial Assessment Act - Construction of s. 3— Costs of survey and valuation of parish, how to
be provided for. Under the 3rd section of the Parochial Assessment Act, the guardians have no original authority to issue
an order requiring the churchwardens and overseers of a parish to raise a sum of money to defray the expenses of a survey and valuation of that parish, either by a separate rate, or by a charge on the poor-rates. The authority to provide for those expenses must be derived from the commis. sioners; and, therefore, when, after an order of the commissioners directing that the money should be paid by the guardians of the union in which the parish was situate, and be provided for by a charge on the poor-rates, the guardians did not pay the money, but issued an order to the parish officers, requiring them to raise it by a separate rate-Held, that such order of the guardians was
invalid. Semble, that the order of the commissioners for making a survey, under that section, should be directed
to the body, whether guardians of a union or parish officers, from whom came the representation in writing that a fair and correct estimate, for the purpose of rating, could not be made without e new valuation. Whether the discretion as to the mode of raising the funds is given to the commissioners or to the
guardians, under that section, quare ? Whether s. 105 of 4 & 5 Wm. 4, c. 76, extends to orders of the commissioners, bad in themseltes, but not removed by certiorari, quære? ANDAMUS to the church wardens and overseers of the poor of the
parish of Bangor, in the county of Carnarvon, reciting, that after the passing of the Poor-law Amendment Act, to wit, on the 30th May, 1837, divers parishes in the counties of Carnarvon and Anglesey, including the parish of Bangor, were united, by order of the Poor-law Commissioners, under the name of the Bangor and Beaumaris Union, and that there is a board of guardians of such union. That after the passing of the Parochial Assessment Act, to wit, on the 13th June, 1838, a majority of the church wardens and overseers of the parish of Bangor represented in writing to the Poor-law Commissioners that a fair and correct estimate, for the purpose of making rates for the relief of the poor in the said parish, could not be made without a new valuation; and thereupon, afterwards, to wit, on the 19th July, 1838, the commissioners, by a certain order in writing, &c., did order and direct that a survey should be made and taken of the messuages, lands, and other hereditaments liable to poor-rates in the parish of Bangor; and that a valuation should be made of the said messuages, &c., according to their annual value ; and further, that the guardians of the poor of the said union should appoint one or more competent person or persons to make such survey and valuation; and that, previous to the appointment of such competent person or persons, he or they should contract with the guardians, that, if appointed, he or they would make such survey, and within such time, and on such terms as should be specified in such contract, which contract should be subject to the approval of the Poorlaw Commissioners; and further, that the money which should be paid under such contract as aforesaid, for such survey and valuation, should be paid by the said guardians, and should be provided for by a charge on the poor-rates of the said parish, which charge should contain a provision for paying off not less than one-fifth of the sum charged on the rates, and interest, in each succeeding year, until the whole should be repaid. The writ then proceeded to recite the communication of that order to the parish officers of Bangor, to the guardians of the union, and to the clerk of the justices of the petty sessions
for the division of Bangor; the appointment by the guardians on the 10th October, 1838, of one Edward Phillips to make the survey and valuation ; the contract with Phillips; the completion by him of the survey and valuation on the 5th January, 1839, and the delivery thereof to the clerk of the guardians ; that thereby the said E. P. became entitled, under and by virtue of the said contract, and the covenants therein contained, to demand and have of and from the guardians the sum of 3431. lls. 6d. for making the survey, &c., which sum became and was due and payable to him from the guardians within two calendar months after the said survey and valuation were delivered to the clerk of the guardians, and which period elapsed on the 5th day of March, 1839. That on the 16th January, 1839, the then parish officers of Bangor were in due form of law authorized and required by the guardians to pay to the said E. P. on or before the 8th of March, 1839, from the poor-rates of the said parish, the said sum of 3431. Ils. 6d., so due, &c.; but the said parish officers, wholly disregarding the said order or requisition, did not, nor did any or either of ihem, pay the said sum, &c., and the same hath not yet been paid. That on the 1st January, 1842, E. P. commenced an action against the guardians to recover the said sum ; of wbich, on the 3rd March, the guardians gave notice to the parish officers, and informed them that if they thought proper they might defend the action in the name of the guardians, upon giving the guardians an indemnity ; but that the parish officers did not defend the action, and that the same was still pending. That on the 9th March, 1842, a certain order in writing was duly made by the guardians and served on the then overseers and churchwardens of the parish of Bangor, whereby, after reciting the preceding facts, the guardians did order and require the church wardens and overseers of the poor of the said parish of Bangor to make a separate rate in pursuance of the provisions of the said statute (the Parochial Assessment Act) for raising the said sum, and to levy the said rate, and there with to pay to the said guardians the said sum, so to be paid by them as aforesaid. That the parish officers, upon whom that order was served, did not comply with or obey the same, but wholly refused so to do. That after those parish officers had ceased to be so, the guardians, on the 17th January, 1844, made the same order upon the then churchwardens and overseers; that on the 27th April, 1844, the two lastmentioned orders were served upon the then churchwardens and overseers; that the said church wardens and overseers had not made any such rate as mentioned in the said order, or paid to the said guardians the said sum of 3431. 11s. 6d., therein mentioned, or any part thereof, but had wholly neglected and refused so to do; and that neither the present nor any other church wardens and overseers had ever paid to the said E. P., or to the guardians, the said sum, &c., nor charged the same on the poor-rates of the said parish, nor had ever made any rate or taken any other proceedings for raising the said sum of 3431. 11s. 6d., &c., but had wholly neglected and refused so to do; and the present churchwardens and overseers still neglected and refused so to do.
The writ further recited an application on the 9th February, 1844, to justices in special sessions, to issue a warrant to enforce the order of the guardians, and a refusal by the justices to interfere; and it then commanded the church wardens and overseers to make a rate for the purpose of raising a sum sufficient to pay the said sum of 3431. 11s. 6d., to levy and collect the same, and pay the proceeds to the guardians for the purpose of paying the said sum of 3431. 11s. 6d. to the said E. P., &c., or to make some other provision for the purpose of raising the
The Return set out that, before the making of the orders in the writ mentioned,
by a certain Act of Parliament, &c. (6 & 7 Wm. 4, c. 96), it was amongst other things enacted,“ That when it should be made to appear to the Poor-law Commissioners, by representation in writing from the board of guardians of any union or parish under their common seal, or from the majority of the church wardens and overseers, or other officers competent as aforesaid to the making and levying a poor-rate, that a fair and correct estimate, for the purposes in the said Act mentioned, could not be made without a new valuation, it should be lawful for the Poor-law Commissioners, when they should see fit, to order a survey, with or without a map or plan, on such scale as they should think fit, to be made and taken of the messuages, lands, and hereditaments liable to poor-rates in such parish, &c., and a valuation to be made of the said messuages, &c., and to direct such guardians to appoint a fit person or persons to make and take every such survey, &c., and to make provision for paying the costs of every such survey, fc., either by a separate rate or by a charge on the poor-rates, as they might see fit; but in case of such charge being made, then provision should be made for paying off not less than one-fifth of the sum charged on the rates, and such interest as might from time to time be payable in respect of such charge, or any part thereof, in each succeeding year, till the whole should be repaid." It then recited the order of the Poor-law Commissioners of the 19th of July, 1838; and the two orders of the guardians of the 9th of March, 1842, and 17th of January, 1844, respectively, and proceeded thus: “And because the said several orders of the said guardians as aforesaid, &c., were not in conformity with or in pursuance of the aforesaid order of the Poor-law Commissioners; and because the said orders of the said guardians ordered and required the church wardens and overseers of the said parish of Bangor to make a separate rate for at once raising the whole amount of the sum so due and payable by the said guardians to the said E. P., that is to say, the whole and full sum of 3431. 11s. 6d. aforesaid, and to levy the same, and to pay the same to the said guardians; whereas by the aforesaid order of the said commissioners, the said commissioners declared that the money which should be paid under the said contract for such survey, &c., should be paid by the said guardians, and should be provided for by a charge on the poor-rates, &c.; and because the said orders of the said guardians in these and in other respects were not authorized by or in conformity with the said order of the said commissioners, we, the churchwardens, &c., have refrained from obeying and have not obeyed the said order of the said guardians,” &c. The conclusion of the return set up that the survey and valuation were so defective as to be entirely useless to the parish of Bangor.
Demurrer thereto, and joinder. The case was argued in last Hilary Term, Saturday, January 16.
Sir Š. Jervis, Attorney-General (Welsby and J. Brown with him), in support of the demurrer.- The question turns upon the construction of the 3rd section of the Parochial Assessment Act, which is set out in the return. The material words are, “ It shall be lawful for the Poor-law Commissioners, where they shall see fit, to order a survey, &c. to be made, &c., and to direct such guardians to appoint a fit person or persons to make and take every such survey, &c., and to make provision for paying the costs of every such survey, &c., either by a separate rate or by a charge on the poor-rates, as they may see fit;" and the doubt is, whether the word “they” in the last clause of the sentence applies to the commissioners or the guardians; but it is submitted that, according to correct grammatical construction, it clearly applies to the guardians, the guardians being the last antecedent. [COLERIDGE, J.-But the commissioners in their order have given the guardians no election.] If the statute is to receive the construction for which the guardians contend, then the commissioners have exceeded their authority in directing provision to be made for payment by a charge on the rates; and the order of the guardians to make a separate rate ought to be obeyed. This, too, is the more reasonable construction, because the local knowledge of the guardians would enable them to decide better than the commissioners which mode of payment should be adopted. [COLERIDGE, J.It should seem, however, that the guardians could not act at all in the matter without an order from the commissioners. PATTESON, J.-The clause is a blunder throughout. First, it speaks of an act to be done by the board of guardians of any union or parish, or by the majority of the parish officers; and then it says that the Poor-law Commissioners are to direct®“ such guardians” to appoint. I do not see what the guardians of the union have to do with it.] The guardians are clearly liable on their contract in an action by the surveyor; and if he recovers judgment, his execution would go upon the general funds of the union, though the survey was only for the benefit of a particular parish. The money cannot now be raised by a charge upon the rates (Rex v. Dursley, 5 Ad. & E. 10); and the only mode, therefore, of paying the money is by a separate rate. Watson (Archbold with him), contrà.— Three modes of construction may
be adopted. First, that the Poor-law Commissioners are themselves to make provision by a charge on the rates, or a separate rate; or, secondly, that they are, by their order to the guardians, to direct how it is to be made; or, thirdly, to order provision to be made in either way, as the guardians may think fit. In any case, therefore, the guardians must have an order from the commissioners. [COLERIDGE, J.—But according to the argument of the Attorney-General, it would be sufficient for the commissioners simply to say, “maké provision," leaving the moae o sprovision entirely in the discretion of the guardians; and if so, then that part of the order which relates to the mode of provision is mere surplusage, and may be disregarded. The commissioners here, by their order, have confined the guardians to one mode of provision; and if the Act of Parliament gives them the choice of two, the commissioners have clearly exceeded their jurisdiction.] Their order was perfectly correct. The clear intention of the legislature, as collected from this Act and the Poor-law Amendment Act, is to leave the discretion as to all these matters in the commissioners; and the words will ear that construction as well as the other. [He referred to 4 & 5 Wm. 4, c. 76, s. 89. (a)] But at all events they ought to have removed the orders by certiorari, and moved to quash them, under the 105th section of 4 & 5 Wm. 4, c. 76. So long as they remain subsisting orders, the guardians are bound to obey them (s. 98). [COLERIDGE, J.-But if this order of the commissioners is an illegal order under the Parochial Assessment Act, these sections will not apply.) If any order of the commissioners is bad, they ought to move to quash it. [Wightman, J.-What difficulty is there in obeying the order of the commissioners ? Sir J. Jervis.-It cannot now be obeyed, because the five years within which the charge is directed to be paid off have expired. Lord Denman, C. J.—That must mean five years from the time of laying the rate.) Certainly. There is no ground for saying that the order cannot be obeyed.
Sir J. Jervis (Attorney-General), in reply.—The 89th and 98th sections of the
(a) By that section it is provided, that “all pay- Act, or at variance with any rule, order, or regulaments, charges, and allowances, made by any over- tion of the said commissioners, made under the seer or guardian and charged upon the rates for the authority of this Act, shall be, and the same are relief of the poor, contrary to the provisions of this hereby declared to be, illegal," &c.