most conveniently and fairly, between themselves, performed and carried into effect." Those are the words of Lord Chief Justice Tindal in that case.

This, therefore, brings us to the second point for which the defendants contend, and which, it will be observed, is left undecided in the passage I have just quoted. That the mode of providing for the repairs of the church by a rate is a very ancient one, and in itself just and reasonable, and perfectly valid in law, is shewn in the same judgment. It was unnecessary to say more, nor in the present case is it necessary to decide whether, under all the circumstances for the accomplishing every object for which a church-rate is commonly made, the parishioners are bound to have recourse to such a mode, and that alone. The legal condition of the vestry, in this respect, is said to be that of a body competent to make a bye-law, a deliberative body for that purpose-the burden of repairs and providing all things that are necessary for the decent celebration of divine service being cast on the parishioners; the vestry are, at least, bound to set in order and provide some means by which these ends may be accomplished. Every church-rate, it has been said, made in the exercise of a power of the majority of the vestry, is in fact a bye-law made for the occasion; and it may be conceded, without prejudice to the defendants, that there may be cases supposed in which bye-laws might be made in some other way than for the imposition of a church-rate. It is indeed, at first sight, somewhat difficult to understand the theory of a bye-law, as applicable to the decision of the vestry, as to the mode of repairing the church in each individual instance of repair needed. A bye-law, though made by, and applicable to, a particular body, is still a law, and differs in its nature from a provision made upon or limited to particular occasions. It is a rule made prospectively-to be applied whenever the circumstances arise for which it is intended to provide. In this sense it is certainly inapplicable to the resolutions of a vestry in any particular instancemaking a church-rate, or ordering any other mode of meeting a particular demand in respect of the church, or the service therein. In several books, however, the term "bye-law" or "ordinance" will be found to be used in a more general way with reference to church-rates, and it was adopted in the judgment pronounced by the Exchequer Chamber, in the case of Veley v. Burder (Johnson's Rep.33; 12 A. & E.304). Thus, Lord Coke, in commenting upon Littleton (Co. Litt. s. 165; 1 Inst. 110, b), says:-"In an upland town, that is neither city nor borough, such a custom to devise lands cannot be alleged, neither in an upland town can there be a custom of borough English, or gavelkind; but these are customs which may be in cities or boroughs. Also, if lands be within a manor fee or seigniory, the same, by the custom of the manor fee or seigniory, may be devisable, or of the nature of gavelkind or borough English. But an upland town may allege a custom to have a way to their church, or to make bye-laws for the reparations of the church, the well-ordering of the commons, and such like things." The marginal references are to the Year Books, but the often cited case of 44 Edw. 3, f. 19, is the only one which we have been able to find bearing upon the point, and in that the custom in question, or bye-law, was not for the making the rate, but for the appointment of collectors and the distraining upon the goods of those who, after a rate made at any time, should not pay the sum assessed; and upon the validity of such custom or bye-law no decision was come to. So in the Chamberlain of London's case (5 Rep. 63), it is stated that the inhabitants of a town, without any custom, may make ordinances or bye-laws for the reparation of the church, highway, or any such thing which is for the general good of the borough, and in such case the greater part shall bind the whole without any custom. This is only in the

argument of counsel, for which the 44 Edw. 3, f. 19, is cited. In the margin, Jeffery's case (5 Rep. 65) is referred to, which only determined that the occupier of land, although not resident within the parish, was rateable to the repairs of the church; and in Norris v. Staps (Hob. 210), and Rogers v. Davenant (1 Mod. 194), the same expressions are used. But in all these cases it will be seen that the matter immediately under consideration, or for which the case of parishioners and church-rates was referred to by way of analogy, was the power of the vestry by its resolution for making a rate for repairs to bind the parish, the parishioners being for this purpose, as it were, to use Lord Hobart's expression, incorporate. It does not appear that any such deliberative discretion as to the mode of repair, as that now insisted upon, was at all present to the minds of the judges or counsel who used the expression; it is evident, on the contrary, that the mode of repair present to their minds was always that by a money rate, and that when they speak of custom, bye-law, or ordinance, they are either speaking somewhat inaccurately of the authority by which it is imposed, or of some special circumstance as to the manner of collecting or enforcing the payment.

These observations might lead to an inquiry of some length and interest, in which distinctions might be found to arise upon the several objects for which church-rates are required, and the several foundations of the common, statute, or ecclesiastical law upon which the liability of the parishioners rests; but we purposely abstain from entering upon it, because we agree with the defendants in the answer which they give, founded upon the special proceedings of this vestry.

This was a case in which the parishioners were required to provide a fund both for the repairs and for the decent celebration of divine service in the church. A money rate was the only mode of providing for the latter; it was a lawful and reasonable mode of providing for the former; it was proposed, and its amount unquestioned. If, then, any other mode could have been suggested, it lay upon those to propose it who objected to that which was in due form proposed; that which was at least reasonable and lawful in itself; which was at least one way in which the duty of the vestry might be performed, and which could be displaced, not merely by protesting against it, but only by the substitution of some other equally legal and effectual mode; but this was not attempted.

The result of the whole is this; the vestry was lawfully assembled to consider of the repair of the church, and the providing of such things as were necessary for the due and decent celebration of divine service therein: the members present agreed that repairs were required, and that there was a want of such necessaries, and they agreed that the estimate submitted by the churchwardens was reasonable, and the amount proposed proper. Whereupon it became the duty of the vestry to make provision of some sort; a rate was duly proposed; no amendment was moved, and no modification suggested; no other rate was put forward, but the majority in the strongest terms protested against it, and against all compulsory rates; the minority disregarded this protest, and made the rate first proposed.

This seems to us a case in which the rule as to corporate and other elections is properly applicable; the principle upon which the rule is founded directly governs it. Under the circumstances, there remained only a certain thing to be done by the meeting; the parishioners were assembled under competent authority for doing it; they came clothed with a limited character, charged by the law with certain duties; whatever any of them, however numerous in proportion to the remainder, said or did foreign from the purpose, or going beyond

the character, or in contravention of the duty, reckons for nothing; it is not to be counted against the act of those who seek to discharge their duty; it is the speech or act of the individuals, and not of the vestrymen. As is said in one of the cases, it is the same as if they had been silent; and being present, but silent, is exactly as if they had been absent; they must be taken to assent to what the other vestrymen agreed to as such in carrying out the purposes of the meeting. Nor needed there any notice to be given which was not given; no fact was unknown to the majority, the knowledge of which might have altered their votes. The law under which they were assembled, which determined their duty and the purpose of the meeting, they must be presumed to have known, and it is satisfactory to feel sure that they did know it; the recency and the great notoriety of the judgment in Veley v. Burder, and the very language of their protest, put this beyond a doubt.

Neither can it be said that this is to apply a rule of law, limited to one subjectmatter, to another and distinct class of cases, for it is not so properly to be considered as a rule of corporations, as it is one for the ordering of all meetings assembled to deliberate and vote in the performance of a defined duty. Whenever the proceedings of such meetings have come in question before the courts of common law-and there have been many such cases-vestry meetings, meetings of turnpike trustees, parish meetings for the election of parochial officers, &c., the same general rules have been applied as the grounds for deciding on their validity. The chairman or president has always been considered as charged to exclude irrelevant motions, and admit voting only on such as are within the purpose and competency of the meeting. The principle, indeed, may be best illustrated by an analogy drawn from electoral meetings, but it is in truth of a very general nature, and inseparable from the proceedings of any assembly convened for doing some act necessary to be done at that meeting. The majority must do it, otherwise, however necessary, it will be left undone. But what majority? The majority of those who choose to take a part in the proceedings of the assembly. At almost every meeting of commissioners, for example, for executing public works, and imposing rates for that purpose, it is probable that the resolution is framed by a small minority of those who attend, upon whom the larger number are content to rely. If it were found, as a fact, that five had passed a resolution, in a room containing twenty, of whose proceedings the other fifteen were ignorant, this would be the undoubted act of the whole meeting, if the proceedings had been conducted regularly, and no fraud were practised to occasion the ignorance of the fifteen. But suppose the twenty were convened to do an act which the law required them to do, and the only open question was as to the mode of doing it; a mode lawful in itself was regularly submitted, whereupon fifteen declare that, though the law has imposed that duty upon them, they entertain so strong an objection, on the ground of conscience, to the law, that they refuse entirely to concur in obeying it,-what must be the consequence? Must the law be set at nought, and its requirements disregarded, or must not those who stand aloof be considered as refusing to assist in the execution of their duty, and leave it to be done by the minority, who are desirous of doing what is right?

The learned judge (Dr. Lushington) puts the case of a mandamus to do an act required to be done by certain persons, as to put the corporate seal to a document. (Johnson's Rep. p. 61.) The case supposed, of course, excludes the notion that the seal is in the custody of a particular officer, and that by charter he only can affix it, and refuses to do so; that would be a case of disobedience to be punished; but the act would, de facto, remain unperformed. But if the act were properly to be done by the majority, and the greater number of those

present refused to concur, and the lesser number did in fact affix the seal, we should feel no difficulty in saying the seal was well affixed, and that the corporation had obeyed the writ, though the contumacious individuals might lay themselves open to proceedings for contempt.

In the case now before us, it was the duty of the chairman to have refused to take the sense of the vestry upon that which was called an amendment; but his allowing the question to be put cannot enlarge the powers of the vestry, nor prevent the opposing party from voting upon such matter duly proposed as was within the purpose for which they were assembled. If the punishment of interdict for refusing to make a rate were now available, might not the minority prevent the infliction of so heavy a sentence by acting as they have done here, or could they be stopped because the chairman had suffered a vote to be taken upon an insensible and irrelevant amendment?

It has been observed by Dr. Lushington, that "this rate was not proposed to the vestry, nor put by the chairman-that there was no voting nor any contention upon it." (Johnson's Rep. p. 59.) We are dealing now only with the record, and that states that after the show of hands was taken upon the supposed amendment the question was put, which must mean regularly put by the proper authority, whether any other amendment was proposed. No amendment was upon that moved, nor was the original motion formally again moved. Perhaps, in strictness of form, this ought to have been done; but if the first amendment was in effect the withdrawal of the majority from the meeting, as we clearly think it was, the repetition of the terms of the original motion would have been merely useless; to ask those who had deliberately declared the moment before that they would make no rate whatever, the question whether they would make a rate of two shillings in the pound, could only have exposed the chairman to ridicule; it was already decided in the negative for the reasons assigned.

Upon the whole, we are of opinion that this rate was well made; and consequently our judgment must be for the defendants.

Judgment for the defendants.

E. W.

COURT OF QUEEN'S BENCH,

February 25, 1847.

THE QUEEN V. WESTBROOK; THE QUEEN v. EVEREST.

Rating of brick-fields.

Brick-fields are usually let on lease for a term of seven or fourteen years, or until the brick-earth should be exhausted; and the tenant pays to the landlord, in addition to a certain fixed sum per year, a royalty for every thousand bricks made upon the land in any year.

In the manufacture of bricks various foreign substances are used; considerable capital and skill are required; and the risk is also considerable:—

Held, that land so occupied is not to be rated as land occupied for ordinary agricultural purposes ; but that the royalty is to be considered as part of the rent, and is, together with the fixed sum paid by the tenant, to be taken as the basis of the rate, after all proper deductions have been made.

In estimating the rateable value of brick-fields, as of houses or other land, the parish officers are to ascertain, as a fact, the rent which a tenant from year to year might be expected to give, free of all usual tenant's rates and taxes, and to make therefrom all the deductions required by statute 6 & 7 Wm. 4, c. 96, s. 1.

Where parish officers had calculated the rate upon the amount of fixed rent, and upon the number of bricks which had been made in previous years, and which, with reference to the number of stools erected, and the other preparations actually made for the manufacture of bricks, were capable of being, and likely to be, made upon the ground in the current year of rating (allowing deductions for waste, and for the clay and foreign materials used in the manufacture)—

Held, that that mode of calculation was primâ facie correct; but that the amount so ascertained ought to be reduced by the Sessions, if the appellants could shew by actual proof that such conclusion was incorrect.

Where, however, the Sessions had ascertained as a fact that the rent which a tenant from year to year would give for the land, with liberty to consume the brick-earth, but without liability to pay any royalty, was a certain sum per acre—

Held, that that sum (after making all the statutable deductions) was the true criterion of rateable value, rather than the amount ascertained in the mode before mentioned.

N

THE QUEEN V. EDWARD WESTBROOK.

On appeal against a rate for the relief of the poor of the parish of Heston,

in the county of Middlesex, whereby Edward Westbrook and others were rated in respect of their occupation of brick-fields in that parish, the Court of Quarter Sessions for the county of Middlesex confirmed the rate, subject to the opinion of this Court upon the following case:

The appellants are brickmakers by trade, and for the purpose of carrying on that trade they occupy various plots of land in the parish of Heston, in the county of Middlesex, amounting altogether to 123a. 2r. 36p., or thereabouts. They were rated by the rate or assessment appealed against, in respect of their occupation of such land, at several sums, amounting in the whole to the sum of 1177. 7s. 7d., that rate being laid at the sum of Is. 6d. in the pound on the amount of what the respondents contended was the right estimate of the annual value to let of the land in question. The only dispute between the parties at the quarter sessions was as to the amount of the annual value in respect of which the rate ought to be laid on each of the appellants. The following are the facts of the case. The actual ratings were as follow: