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rate is sufficiently designated. Pollock, C. B.-How can the rate be considered as made until it be allowed by the justices ?]
Martin (Addison with him), in reply.-[The Court intimated that he need not trouble himself as to the first point in regard to the door.] Then, secondly, there is a perfect substitution here for all purposes of the new church for the old by the deed of consecration of the bishop of Chester; true, perhaps, it may be that the commissioners have not moved or been acting in the matter, but that is unnecessary.
Where is the law, either common or statute, to prevent parishioners, if they please, and the bishop of the diocese wills it, adopting a new church in lieu or substitution for an old one? There was none,-for neither of his learned friends produced it. At this new church divine service and every other usual and proper duty were performed, and there is a perfect substitution of the one for the other. As to the holding of vestry meetings at the old church, whenever they originated there, the same was always adjourned afterwards to some public-house. He contended the substitution was perfect also under the Church Building Acts, 59 Geo. 3, c. 134, s. 40, and 3 Geo. 4, c. 72, s. 30; and in confirmation of this also, he must add that there has been no service performed in the old church since 1832. As to the warrant, they submitted, the present was a perfectly valid one. The 43 Elizabeth, c. 2, s. 4, gave power to levy; but suppose the party appeared, and admitted all that was requisite and necessary, where was the authority to compel the justices to state what the other side here require? Basten v. Carew (3 B. & C. 649) shews there is no necessity for its appearing on the face of the warrant that there was a demand and refusal upon oath; there is no law or authority to shew it must be so; the Act itself does not require it, and upon no other authority is it necessary. But secondly, this warrant does state all that is requisite; upon the face of this document, it says that it was “duly proved before us,” &c., which is quite sufficient. (See King v. Luffe, 8 East, 193.) The information says, “ Being proved to us upon oath, and the warrant or order being duly proved before us,” and also that it was as well upon the oath of the wife as otherwise. (King and Willes, Boscorn, and Paley on Convictions, p. 32, Tracey v. Talbot (2 Salkeld, 532), were also referred to.) If, however, there be any informality, it would be mere form, and consequently cured by the 17 Geo. 2, c. 38, s. 8.
Cur. adv. vult.
The judgment of the Court was now (12th January, 1847) delivered as follows by
POLLOCK, C.B.—This case was argued before my brothers Parke, Alderson, Rolfe, and myself, during the last Term, on a rule to enter the verdict for the defendant on the point reserved by my brother Coltman. The facts necessary to be stated are these. This was an action of trespass brought against the churchwardens and overseers of the township of Todmorden for seizing the plaintiff's goods under four warrants of distress for poor-rate, all in the same form, and there is no notice of more than one of them. The plaintiff's case was, first, that the rate was invalid ; second, that the warrant was void. The objection to the rate was, that it was not duly published the first Sunday after its allowance, and therefore void. On that Sunday, the written notice for the allowance of the rate was placed on the principal or most usual door of the church of Todmorden. There was another door on which no notice was placed. There had been, also, prior to the year 1832, a public chapel in the hamlet of the same township, which, on the construction of the before-mentioned church, and in that year, ceased to have divine service performed in it; its galleries were removed, its pews removed behind, and burials took place in the churchyard, and christenings in the church, when convenient to the clergyman, and sometimes parochial meetings were held there, its situation being convenient to the inhabitants of the whole township. By an order of the Commissioners for building Churches, the emoluments of the chapel were transferred to the incumbent o. the new church about the time of its consecration. It appeared also, in the hamlet of Walsden, part of the township, there was a school-house, in which service was celebrated on Sundays by regular ministers of the Church of England; and there were some chapels for dissenters from the Church of England, wuly licensed, in the town. A notice of the allowance of the rate was not placed von either of the doors of either the old chapel, or school-house, or any dissenting chapel. Under these circumstances, it was contended the notice was not given in conformity with the 1 Vict. c. 45, which substitutes a written notice for publication of the rate required by the 17 Geo. 2, c. 3, in the church; and this for two reasons : first, because it was not affixed to all the doors of the new church; and secondly, because it was not fixed on any door of the old chapel or school-house, it not being urged that notice ought to have been posted on the doors of the dissenting chapels or meeting-houses. We are all of opinion that this objection to the notice ought not to prevail. The statute 1 Vict. c. 45, was passed for the purpose of preventing the interruption of divine worship by notices of a secular character being read, but that they should be affixed in the shape of a written advertisement on a part of the fabric of the church, where it would be likely to be observed. The first question arises on the construction of the 2nd section of the statute Wm. 4 & 1 Vict. c. 45, whether the word “ doors” is to be read as meaning “ all the doors of all the churches and chapels," or only “the door of every church, and the door of every chapel,” reddendo singulo singulis, the word “ door” being used in the sense of the most usual door ? Each construction is equally consistent with the words of the sentence; but we think that the latter ought to prevail. If the legislature bad meant that any thing should be done at or near more doors than one, no previous statute having required any thing to be done at more than one door, they would have so expressly provided by using the word “or;" and the context appears to us to favour our construction. The publication of the notice, as required by the 58 Geo. 3, during divine service, is repealed. The written notice on the principal door of the church is retained, and no notice is required on any other door by way of sabstitute for the loss of reading the notice during divine service. La this case it is cleart he legislature dought cne written notice on one door quite sufficient. Again, the statute of the 31 Eliz. c. 3, requires proclamation of outlawry immediately after divine service “ at the most usual door." The recital of that statute mentions the word “ door " only, evidently treating it as synonymous with the most public door. The first section enacts that no proclamation shall be made at the door,'” using the word in the same sense ; then, secondly, it provides, " that on days on which proclamation or notices have been heretofore given at the church, or at the door of any church or chapel, such proclamation or notices shall be reduced into writing and affixed to or near the doors of all the churches or chapels within such chapelry or place;" and the word “ door,” in both members of the section, must have the same meaning. In the former it clearly means the most usual or principal door, so we think it must mean here. We therefore think that all that was intended was, that the notice should be placed on the most usual door, only, of such church or chapel. The effect, therefore, of the statute is to substitute for the public verbal notice in the church, a public written, and therefore more prominent, notice, on the chief entrance-not only the entrance to the church, but also on the chief entrance of all the parochial chapels and chapels of ease within the same district. Whether
it extends to proprietary chapels or any private chapels it is not necessary to determine; most probably it was not so intended. The next question is, whether any notice is necessary to be placed on the principal door of the old chapel ? Whether this chapel had legally ceased to be such or not, so as to be incapable of being used for divine service without fresh consecration, need not be decided. It had ceased to be so de facto; for twelve years divine service had not been celebrated there ; during that time, consequently, it was no longer a church within the meaning of the Act. No notice was placed on the principal door, before the commencement of the service, as required by the second section. It is clear that notice is not required to be placed on the door of the school-house; that, certainly, is not a church or chapel. We conclude, therefore, that the rate, so far, is valid. It remains to be considered whether the warrant itself is right in form. “Whereas in and by a certain rate and assessment, dated the 25th day of November, 1839, made, issued, and published, according to the,"&c. (the learned Chief Baron read the warrant down to the words) “ distress on the chattels” in the usual form of a warrant of that sort. One objection to the warrant was disposed of during the argument. It was said that it mis-recited the date of the rate, which was stated to be made by the church wardens and overseers on the 24th November, and allowed on the 25th November. Supposing this to be a mis-recital, the rate is quite sufficiently ascertained without the date, and the maxim falsa demonstratio non nocet applies. The other and more weighty objection to the warrant is, that it does not state that the evidence against the plaintiff was given on oath. This warrant is in form similar to that given in Burns, edition 1831, by Chitty, which latter form is, probably, that generally adopted and acted upon; and although we must hold it to be bad, if we are satisfied on authority that it is, we ought not lightly to overturn the long-established form. Whenever a particular statute requires the evidence to be on oath, such express enactment, no doubt, must be obeyed; and then the statute gives authority to the magistrates to hear and determine, and to convict on examination : it is implied that the examination is to be taken as the law requires, on oath. See Dalton, chap. 6, sec. 6, and Paley on Convictions, 42, where it is stated to be upon cath; also Ex parte Hawkins (2 Bar. & Cres. 31). There, in truth, the conviction did not pursue the statutory form given by the 3 Geo. 4, c. 110, and was therefore clearly bad. It is also said, that in orders of comınitment, not founded on a previous conviction, which were stated to be themselves convictions, the same statement was requisite. See In the matter of Jones (New Sess. Cas. p. 3), before Williams, J., and there called convictions under 4 Geo. 4, c. 34, s. 3. In Re Grey, on the same statute (1 Sess. Cas. 354, before Patteson, J., and 2 Dowl. Prac. Cas.); Queen v. Lewis (13 Law Jour. 46; 1 Dowl. 822), on the same Act. The case in the 13th Law Journal was a decision on a similar commitment or conviction, in the same statute, but on a different point. On the other hand, in orders not being convictions, the same construction has not been held necessary. In a very early case, Rex v. Fisherton (2 Sess. Cas. 45), an order, upon due consideration, was held to be well, for it implied that a due examination had been taken, which was clearly admitted to be good. So in Rex v. Luffe (8 East,'193), where it was held that an order of affiliation, stating that it was made on the oath of the wife, and otherwise, was held good. So in the case of Reg. v. King's Lynn (15 Law Jour. 93), my brother Coleridge, in the Bail Court, held an order of removal was good, notwithstanding a similar objection. There is, it is true, a contrary decision, by my brother Wightman, in the case of Reg. v. The :Justices of Buckinghamshire (1 New Sess. Cas. 494), as to an order of affiliation. Rex v. Luffe was not cited ; and Coleridge, J. held (15 Law Jour.
96), if that case had been brought before my brother Wightman, he would not have decided against the case. The result, therefore, of the case appears to be, that in orders, properly so called, no statement need be made that the evidence was on oath; but in convictions, and commitments which incorporate convictions, and are treated as such, it must be so stated. Whether it might not have been as well to hold that less strictness than this should be necessary in convictions, and that it should be sufficient to state that the evidence was given in due manner, which would include evidence on oath or affirmation, or by records, or by any other instrument in evidence, we need not now inquire. The point for us to decide is, whether it is necessary, in a warrant of distress for a poor-rate, to state that the evidence was given on oath. The granting such a warrant is a judicial matter. The magistrate has to decide as a judge, whether it ought to be issued or not, though his jurisdiction to decide that question depends on two conditions : first, if there be a valid rate; secondly, if the party rated be an occupier in the district. Statute 43 Elizabeth, chap. 2, does not require
, expressly or impliedly, any formal record should be drawn up, nor is any such ever prepared in practice ; nor does the warrant on the face of it appear to be meant to be a conviction, as in some of the cases : therefore, we do not think the decision applied to it. It ought, however, to appear upon it in express terms, or by reasonable intendment, that the authority which is out of the course of the common law had been pursued. So, indeed, it must appear in any order made in pursuance of the statute ; as a warrant of commitment, not being in the nature of a conviction, it must appear either on the face of it, or by the order to which it refers (7 Law Jour. 83); and it is admitted by the learned counsel for the plaintiff, that there is no case in which a warrant for distress has been held bad upon such an objection. Not being, therefore, bound by authority, and thinking that the same strictness ought not to prevail as in convictions, and that the authority of the magistrates in the due mode of proceeding does sufficiently appear on this warrant, we think it is good, and that the defendant is entitled to the verdict. The rule, therefore, must be absolute.
COURT OF QUEEN'S BENCH.
Hilary Term.-January 20, 1847. THE QUEEN v. THE INHABITANTS OF ST. ANNE's, WESTMINSTER.
Practice-Objection to order. When an order of removal
, and an order of Sessions confirming it, have been returned into this court, toge ther with a case subject to which the order of Sessions has been made, the Court ought not to grant a rulo
nisi for quashing the order of Sessions and order of removal on any grounds not stated in the case. The Court will not entertain a motion affecting an order of removal confirmed by an order of Sessions sube ject to a case, on other grounds than those reserved by the case, unless the case be abandoned. ASHLEY, in moving for a rule nisi to quash an order of Sessions confirm,
ing an order for the removal of certain paupers, subject to a case, also the order of removal, all of which had been returned into this court, had also moved on an additional ground, apparent on the face of the order of removal. (Reg. v. Heyop, 2 New Sess. Cas. 270; 1 New Mag. Cas. 497.) The Court granted the rule, which was drawn up in the usual form, with a statement
appended, that the learned counsel had obtained the rule nisi to quash on an additional ground stated in open court. A notice in writing of that ground was served with the rule. The Court having confirmed the order of Sessions,
Pashley then moved to make the rule absolute, on the objection to the order which he had specially stated.-In Reg. v. Heyop. (? New Sess. Cas. 270; 1 New Mag. Cas. 497) Patteson, J. said: “I think the practice is established by the cases cited by Mr. Greaves, namely, that an objection arising on the face of an order cannot be taken, when a case has been reserved by the Sessions which does not raise it, unless the rule for a certiorari has been moved in open court, and the additional reason why the order should be quashed stated. Indeed it is very convenient that it should be so, as, when a case is granted by Sessions, the certiorari goes as a matter of course, without observation; and were it otherwise, parties might come prepared to meet one point, and then have a new one raised, which would be very inconvenient. Nor does this rule prejudice the other side, because they can make their application for a certiorari upon the points reserved; and, for aught we know, even if the case were disposed of, they might still come to us for a certiorari to bring up the original order on this fresh objection. But whenever the Sessions grant a case, and a certiorari issues, we will not entertain any objection not raised by the case, unless it has been mentioned to the Court, on moving for the certiorari.”
LORD DENMAN, C. J.--I do not think that this rule is to be supported by what was said in Reg. v. Heyop. If the Court says that a certain discussion cannot be permitted, because some step has not been taken, it by no means follows that a similar discussion ought to be permitted because the particular step has been taken. This course seems to me to be an entire innovation. The Court below has reserved its decision until we shall have answered certain questions submitted to us by it, and I do not see how we can allow a general appeal from that decision, to which this rule amounts. If we permit this course now, we must permit it in every case. At all events, this rule must not be discussed on a Crown paper day. We will state on Wednesday our determination.
LORD Denman, C. J. (on Wednesday), said.- We think that the right rule was laid down by Lord Ellenborough, in Rex v. Guilford (2 Chitt. 381), and that the course which has been taken by the party who has brought up the case reserved by the Sessions cannot be permitted. The Court of Quarter Sessions has decided the appeal, giving the party to whom its decision is adverse the opportunity of having that decision altered, if we should give certain answers to certain questions. That party must elect whether or not he will take the advantage offered to him; he must proceed with the case reserved, waiving any other objections to the order of removal which by possibility he might make available ; or abandon the case, and rely on the other objections, if he thinks he can make them available. To prevent any doubt upon this point, we shall direct a rule to be drawn up, that will settle the practice in conformity with our opinion.
Rule to stand discharged. E. W.