Page images
PDF
EPUB

question. We think there was reasonable evidence of those documents being in the repository for parish documents generally used ; and that the learned judge is quite right in the opinion which he entertains, that a proper custody was proved. The rule, therefore, will not be granted.

Rule refused.

B.

BAIL COURT.

M

Michaelmas Term.-November 25, 1846.

(Before Mr. Justice WIGHTMAN.)
THE QUEEN v. THE RECORDER OF York. (a)

Mandamus to hear an appeal-Effect of a repealing clause in a statute.
An order of removal of a lunatic pauper was made under the provisions of the 9 Geo. 4, c. 40, s. 42, on

the 9th of July, 1815. On the 8th of August following, this statute was repealed by the 8 & 9 Vict. c. 126, “ except as to any matters committed or done, or contructed to be committed or done, before the passing of this Act, which shall be as if this Act had not passed." At the next October sessions ar appeal was entered and respited against the said order of removal, and on the 17th of December following, notice of appeal (but with no grounds of appeal) was given for the then nert January sessions. On the appeal coning on for trial, it was objected, first, that the power of appealing under the 9 Geo. 4, c. 40, was lost, in consequence of the operation of the 8 & 9 Vict. c. 126; secondly, that even if not so lost, the appellants were not entitled 10 be heard, in consequence of their not having given any grounds of appeal ; and the Sessions, being of this opinion, dismissed the appeal

. Held, on a motion for a mandamus to enter continuances and hear the appeal, that the Sessions were wrong on both points, ANDAMUS to the Recorder of York, commanding him to enter conti

nuances and hear an appeal between the churchwardens and overseers of Skipton, appellants, and the clerk of the peace of the city of York, respondent, against an order of removal of a lunatic pauper, under the 9 Geo. 4, c. 40, s. 42,(6) adjudicating the settlement of the said pauper to be in the appellant parish, and directing the payment of the expenses of removal.

The order of removal was made on the 9th of July, 1845; but on the following 8th of August, the 9 Geo. 4, c. 40 (under which it was made), was repealed by the 8 & 9 Vict. c. 126, entitled, “ An Act to amend the laws for the provision and regulation of lunatic asylums for counties and boroughs, and for the maintenance and care of pauper lunatics in England," the first section of which, however, excepts from the repealing enactment “any matters committed or done, or contracted to be committed or done, before the passing of this Act, which shall be as if this Act had not passed.” At the October Sessions an appeal was entered and respited against the said order; and on the 17th of

(a) Reported by T. W. SAUNDERS, Esq., Bar- person shall be adjudged to be, for the repayment of rister-at-law.

the reasonable charges of the removing, mainte(6) Which enacts, “ That where the legal settle- nance, medicine, clothing, and care of such insane ment of any insane person confined under any order person, incurred within twelve calendar months preof any two justices at any county lunatic asylum, vious to the date of such order, such cbarges having public bospital, or any licensed house, bas not been been first proved to the satisfaction of such justices, ascertained, it shall and may be lawful for any two and the amount thereof being set forth in such justices, acting in and for the county in which such order; and it shall and may be lawful for the said, lunatic asylum, public hospital, or licensed house is or any other two justices of the peace of the said situate, at any time, to inquire into the last legal county, to provide for the maintenance, medicine, settlement of such insane person ; and if satisfac- clothing, and care of such insane person, in manner tory evidence can be obtained as to such settlement, as has been hereinbefore directed for the two jus. it shall and may be lawful for such justices to make tices before whom such person was originally exaan order upon the overseers of the parish or town. mined." ship where such last legal settlement of such insane

[ocr errors]

December following, notice of appeal, but without any grounds, was given for the sessions to be held on the following 5th of January, 1846. At these ses. sions, accordingly, the appeal was called on in its turn, where it was objected, first, that by the 8 & 9 Vict. c. 126, s. 1, repealing the 9 Geo. 4, c. 40, the power to appeal under the latter Act was at an end ; secondly, that the appellants were not entitled to be heard, inasmuch as they had served no grounds of appeal. Upon these grounds, the appeal was dismissed, whereupon the present rule for a mandamus was obtained, against which

Bliss shewed cause (5th June).— The Sessions were right upon both grounds, 1st. The appeal in this case must be taken, since the decision of Reg. v. Pixley (4Q. B. 711), to have been under sec. 60 of the 9 Geo. 4, c. 40, which requires fourteen days' clear notice in writing of such appeal, and the nature and matter thereof, to be given ; and although it may be open to contention that that is not the appeal clause, yet the case of Reg. v. Pixley could have been determined only upon the assumption that it was the proper appeal clause, there being, in fact, several appeal clauses in the Act. [Wightman, J.—The 60th section is not once referred to in that case.) But the judgment turns upon the sufficiency of the grounds of appeal, and as that is the only section in the Act which requires the grounds of appeal to be given, it must have been conceded that such was the proper appeal clause for appeals such as this. That case distinctly overrules Reg. v. The Justices of Kent (2 Q. B. 686), in which it was supposed that the 54th clause was the one governing these appeals. 2ndly. The power of appealing was taken away by the coming into operation, before any thing was done by the appellants, of the 8 & 9 Vict. c. 126, which repeals the 9 Geo. 4, c. 40, "except as to any matters committed or done before the passing of this Act, which shall be as if this Act had not been passed ;” and it cannot reasonably be argued, that this appeal comes within the exception, as it was not entered until the October Sessions, no previous notice having been given of an intention to appeal, and the 8 & 9 Vict. c. 126, having come into operation on the preceding 8th of October, so that the appeal was not a matter committed or done, or contracted to be committed or done, before the passing of the Act. It is a well-established rule, that a right of appeal cannot be given by implication, nor can it even be continued by words of inference only. In Reg. v. Mawgan (8 Ad. & Ell. 496) a magistrate, under the 13 Geo. 3, c. 78, s. 24, had presented the inhabitants of a parish for the non-repair of a highway, and the proceedings having been removed into the Queen's Bench by certiorari, the defendants pleaded, and issues in fact having been joined, they were tried, and found against the defendants. The 5 & 6 Wm. 4, c. 50, which repealed the 13 Geo. 3, c. 78, came into operation, however, on the day on which the issues were tried. Upon this state of things the Court arrested the judgment, on the ground that they could not then give judgment upon a conviction founded upon a magistrate's presentment, Lord Denman remarking, “ If the question related merely to the presentment, that, no doubt, is complete. But, dum loquimur, we have lost the power of giving effect to any thing which takes place under that proceeding." The same principle was acted upon in Kay v. Goodwin (6 Bing. 576), relative to the enrolment of proceedings under a commission of bankruptcy.

Hall, in support of the rule.Reg. v. The Justices of the West Riding (2 New Sess. Ca. 304 ; 1 B. C. R. 55) is almost decisive of the first question; there the subject was very much discussed, and Mr. Justice Williams gave a very strong opinion that it was not necessary, in such an appeal as this, to deliver any grounds of appeal. The real question upon this point is, under which of the appeal clauses in the 9 Geo. 4, c. 40, ought this appeal to have been made ? If, as the appellants contend, under the 46th, then no grounds are required to be served ; and the position in the Act of this clause, coming as it does almost immediately after the clause under which the order was made, shews that this is the right construction. As to the second objection, it is clear, from a proper reading of the exception in the 1st section of the 8 & 9 Vict. c. 126, that the power of the appellants in this case is reserved. The rule as to qualified and conditional repeals is well laid down by Lord Ellenborough, in Rex v. Rogers (10 East, 569), in which he says, “ It is a question of construction, on every Act professing to repeal or interfere with the provisions of a former law, whether it operates as a total or a partial and temporary repeal.” Reg. v. Mawgan (8 Ad. & Ell: 496) and Kay v. Goodwin (6 Bing. 576) are not in point, as they turned upon their own peculiar facts. Hodge v. Bird (6 M. & Gr. 1020) is in point in favour of the appellants; there the Court thought that they had still jurisdiction, under the 2 Geo. 2, c. 23, notwithstanding it was repealed by the 6 & 7 Vict. c. 73, there being a proviso, “except as to matters and things done before the passing of the latter Act." The case of Hitchcock v. IVay (6 Ad. & Ell. 943) is also in the appel favour.

Cur. adv. vult. November 25. WIGHTMAN, J.- This was a rule calling upon the Recorder of York to enter continuances and hear an appeal, as to the last place of settlement of a lunatic pauper. On the 9th of July, 1845, two justices made an order adjudging the place of settlement of the pauper, and ordering the overseers of such place to pay the expenses of the pauper under the provisions of 9 Geo. 4, c. 40. On the 8th of August, in the same year, by the 8 & 9 Vict. c. 126, that statute was repealed, except as to any matters committed or done before the passing of the 8 & 9 Vict. c. 126, which should be as if that Act had not been passed. On the 13th of October, in the same year, an appeal was entered and respited. On the 17th of December, notice of appeal, but without stating any grounds, was given ; on the 5th of January, 1846, the appeal was dismissed at the sessions ; first, because the 9 Geo. 4, c. 40, was repealed by the 8 & 9 Vict. c. 126; second, because no grounds of appeal were given. On the first point, I am of opinion that this case is within the exception in the repealing clause of the 8 & 9 Vict. c. 126, and that it is so for all purposes, including that of appealing; and that the 9 Geo. 4, c. 40, is still unrepealed, as far as regards the order of justices made on the 9th of July, 1845, and all the incidents, including the right of appeal. Many cases were cited upon the argument; but as each decision depends upon the words of the repealing statute, it is unnecessary to advert to them, and I am of opinion that the words of the exception in the repealing clause of the 8 & 9 Vict. c. 126, leave the 9 Geo. 4, c. 40, untouched, as far as respects the order in question, and that which is incident to it, including the appeal. The second objection, however, was said

to be available under 9 Geo. 4, c. 40, supposing it not to have been repealed. This depends upon the question whether the appeal is under the 46th or 54th sections of the Act, or the 60th section; if under either of the former, no ground of appeal need be stated; if under the latter, it must. The statute contains three appeal clauses : one, the 46th section, immediately following the enactments which enable the justices to ascertain the settlement of pauper lunatics, and order payment of expenses, &c.; another, which is incorporated in section 54, with the clauses respecting lunatics charged with crimes ; and the last, which is the 60th section, immediately following the clause

for recovery and application of penalties and forfeitures, and containing expressions which are applicable only to cases of penalty and forfeiture, and not to cases falling within the previous clauses of appeal. "I therefore think that the Sessions were wrong in treating this as an appeal under the 60th section of the Act, it being an appeal under one or both of the former sections of the Act, which do not require any grounds of appeal to be given. I may observe, that in the case of Reg. v. Pixley, which was cited on the argument in support of the order of Sessions, no question was made upon the effect of the appeal clauses in the 46th and 54th sections of the Act, and it seems to have been assumed that the case was within the 60th section ; but as that was decided upon grounds wholly distinct from the present question, it cannot be taken as an authority

Upon the whole, therefore, I think that the rule for a mandamus must be absolute.

Rule absolute.

COURT OF EXCHEQUER.

November 13, 1846, and January 12, 1847.
ORMEROD v. CHADWICK and Axother.(a)

It is a sufficient publication of a rate, under the 7 Wm. 4 & 1 Vict. c. 45, in an action against justices, who authorized a distress to be taken for enforcing its payment, if notice of the rate be uffired on the principal door of the church where divine service is duly and regularly performed; and where a new church in a parish had been substituted for an old one, under a deed of consecration by the bishop of the diocese, and so adopted and used by the parishioners, no service being performed at the old church, but other occasional duties only, without the interference of the commissioners, under the 8 & 9 Vict. c. 70, to cause such substitution; a notice on the door of the new church is sufficient, without publish

ing such notice on the door of the old church. Semble

, a poor-rate is considered as made when allowed (and not until it is allowed) by the justices. What should be the form of the warrant of distress by justices, upon a purly who refuses to pay his poor

rates.

THIS was an action of trespass brought against the defendants for having

as magistrates authorized a distress to be taken upon the plaintiff's goods for the purpose of enforcing payment of certain poor-rates, for the township of Todmorden, which the plaintiff had refused to pay, on the ground that the same had not been properly made, and were therefore illegal. The action was tried at Liverpool, when a verdict was found for the plaintiff, subject to a motion to enter it for the defendants; and Martin having obtained a rule to shew cause why the same should not be entered for the defendants accordingly,

Baines (Hall with him) now shewed cause, and contended-first, that the proper notices for the purpose of making the rate in question had not been posted on the necessary doors of the churches, in compliance with the Act of Parliament requiring the same. The words were, “on or near the principal doors of all the churches;" that door did not mean the principal door in point of size, or as generally understood so, as being the largest, but the door most frequented by the public; the most usual door was intended under the words of the statute of Elizabeth. [Rolfe, B.—Does it mean principal door in point of architecture, or in point of user ? Hall said it must be meant in reference to the user.] (The 58 Geo. 3, c. 69, s. 1 (the General Vestry Act), and 1 Vict. c. 45, were referred to.) Secondly, there was an old church in the parish,

(a) Reported by F. BAILEY, Esq., Barrister-at-law.

where burials, christenings, baptisms, &c. were performed, although it appeared divine service was not then, nor had been since 1832, performed there; vestry meetings also were occasionally held at the old church, and as there was no publication of notice there, or any affixed to the door there, the publication was insufficient, and the rate bad. [Pollock, C. B.—That church had been abandoned, and another in the parish substituted for it.). There was nothing here to substitute the new for the old in any way, except the consecration deed made by the bishop of Chester, and the parish generally did all their parochial business there, and if it were not a church for such a purpose, would not all those meetings be illegal, and of no avail ? The old church is still a church, for all its necessary requisites, unless it be entirely abandoned, and done away with. Service may be performed, and a curate may be sent there for that purpose, to do so at any time he may deem proper. The 8 & 9 Vict. c. 70, shews how one church may be substituted for another, or a new for an old one, by the commissioners in a manner there pointed out; but here the commissioners have not substituted the new for the old, or interfered in any way; there is nothing but the consecration deed by the bishop. [ALDERSON, B.- There is no divine service at the old church, therefore it can't be put up there previous to divine service. Parke, B.—The 17 Geo. 2 is imperative; it must be put up the first Sunday after the rate allowed, though no divine service is performed. ALDERSON, B.--I doubt if the clerk's going to the church and putting it up would be good if no service be performed, or there was nobody there. How could it, in that case, be called public?] Then as to the chapelry of Walsden, no notice was given there, and service has been regularly performed at that place; indeed, there is no other place of worship for the inhabitants of that district. [Martin.-It was proved, my lords, that this was only a school-house where the clergyman thought it right to go and read prayers. Alderson, B.Walsden would not be a place where it would be requisite to put up these notices, unless it were licensed by the bishop.] If they are public chapels where service is performed according to the rites of the Church of England, then it is submitted notices must be placed on the doors for the due allowance of poor-rates. [The Court referred to Reg. v. Marriott (12 A. & E. 779), which they thought had already decided the matter, and by which they should abide. Hall urged that the point there was not pressed in that case, and the Court may not have granted the mandamus upon it, as that part of the case was not noticed; he cited Coster v. Wilson (3 M. & W. 41]).' Parke, B.The point was made there, but the Court gave no judgment upon it.). Thirdly, the warrant or conviction here is bad, both in forin and substance; he referred to the 43 Elizabeth, c. 2, s. 4. There must, in the first place, be a refusal to pay before the justices can interfere. (Tracey v. St. Alban's, 1 Nolan, 258; 4 Burn. 354.) The warrant should state, also, that it had been proved upon oath, but this did not. (See Rex v. Aldridge, 2 B. & C. 600 ; Ex parte Jones, 1 New Sess. Cas. 3 ; King v. Croke, Cowper, p. 26; 1 Burn. last edition, title Conviction, 973; Ex parte Tordoff, 1 New Sess. Cas. 171; 1 New Mag. Cas. 17; King v. Gray, ibid. 354; Fuller's case, 18 L. J. M. C. 141; R. v. Lewis, ibid. 46; Rer v. Chandler, 1 Lord Raymond, 45; Day v. King, 5 A. & E. 359; Christie v. Unwin, 11 A. & E. 373.) Fourthly, the rate upon which the warrant issued is described as being dated and made on the 25th of November, 1839; it is contended there is no such rate. The 6 & 7 Wm. 4, c. 96, gives a prescribed form, and the present rate was made and dated, in fact, on the 24th of September preceding; it may have been allowed on the 25th of November, but its proper date is the time when the rate was made. (See Asked v. Stocks, 4 Bing. 509.) [PARKE, B.-The question is whether the

« PreviousContinue »