[not less than ten shillings] and which sum he the said A. O. has refused to pay: These are therefore to require you the said constable to convey the said A. O. to the said house of correction at aforesaid, and deliver him to the said keeper thereof, together with this precept; and you the said keeper are hereby commanded to receive the said A. O. into your custody in the said house of correction, there to be kept without bail or mainprize for [for any time not exceeding three months] unless the said sum so due to his majesty shall be sooner paid. And for so doing this shall be your sufficient warrant. Given under my hand and seal the day of J. P. the year of our Lord one thousand eight hundred and in Notice to remove an order of justices by certiorari must state the name of the party writ. Certiorari (In what Cases.) [Vide 1 Burn, 455.] THE court will not grant a certiorari on behalf of the defendant to remove an indictment from the sessions on an affidavit that it was an unusual proceeding, that he was advised that several matters of law of the greatest importance would arise upon the trial of the indictment, and that it was fit and proper it should be tried before persons learned in the law. Rex v. Harrison, T. 59 G. 3. 1 Chitt. Rep. 571. It is not a sufficient ground for the issuing of a certiorari that prejudices existed against the defendant, unless there was some prejudice in the court below. Rex v. Matthews, E. 1815. 1 Chitt. Rep. Notis. 571. But where the defendant was a public officer (a deputy register) and his personal attendance was daily necessary, the court granted a certiorari to remove an indictment from the Old Bailey to Gloucester, where the defendant resided. Anon. cited in 1 Chitt. Rep. 571. Notis. See also 1 Chitt. Crim. L. 375. Rex v. The Justices of Lancashire, H. 1 & 2 G. 4. 4 B. & A. 289. A R. N. for a writ of certiorari had been obtained, to remove certain orders of magistrates of the county of Lancaster made for the repayment by the treasurer of that county, to different high constables, of several large sums of money from the applying for the county rate, for their reasonable and extraordinary expences incurred in the execution of their duty in different cases of riot and tumult. The individual at whose instance the writs of certiorari were applied for, made an affidavit in support of the rule; but the notices to the magistrates of the intention to apply for the writ, contained no mention of his name, and were all signed "Lace, Miller, and Lace, attornies." It was objected, that the notices were insufficient. Vide stats. 13 G. 2. c. 18. § 5. (1 Burn, 458.) and 5 G. 2. c. 19. (1 Burn, 459.) Et per Curiam (after argument.) The notice should be given by the party suing out the writ, and that circumstance should appear upon the face of the notice itself, for the object of it, stated by the statute, is to enable the justices 1 Burn, 582. to shew cause against the granting the certiorari, and they may shew for cause, that the party suing out the writ was a stranger to the county, and not interested in the order. The justices therefore ought to have their attention called to the name of the party by the notice itself. The rule therefore must be discharged. R. D. See Rex v. Ridgway, 5 B. & A. 527. post, title "Servants" (Combinations.) Charitable Donations. BY stat. 1 & 2 G. 4. c. 92. Lands subjected to charitable trusts may be exchanged for other lands by commissioners appointed for that purpose by the bishop of the diocese. Churchwardens. (Who are exempt from the Office.) [Vide 1 Burn, 484.] PERSONS who are not personally resident in a parish, but are partners of a house of trade situate within it, are not exempted from serving the office of churchwarden. Stephenson v. Langston, 1 Hagg. Cons. Rep. 379. Aliens, papists, Jews, children, and persons convicted of felony, are disqualified from being elected churchwardens. Anthony v. Seger, 1 Hagg. Cons. Rep. 10. Rex v. The Chapelwardens of Milnrow, T. 56 Geo. 3. 5 M. & S. 248. Upon appeal against an order of two justices for the county of Lancaster, directing the payment of a chapel rate, the sessions quashed the order, subject to the opinion of the court of K. B. on the following case. There had been an old chapel at Milnrow. In 1796, a new one was built in its stead, in a new situation, three or four hundred yards from the site of the old one. Rates had been made for the repairs of the chapel within the last twenty years, and the sums in the present rate were the same as those charged in a former rate. In the year 1815, this chapel was nearly pulled down, and a new one built on the old foundation, and an entirely new gallery erected in it by the chapelwardens. When the chapel was nearly finished, a faculty was obtained, which was for "the repairing and rebuilding of Milnrow-chapel, and for a new gallery;" and a rate was made by the chapel wardens in the vestry of the chapel, in the presence and with the consent of the majority of the inhabitants of the chapelry who attended on the occasion, and signed their names to the rate. Ralph Bealey was Under 53 G.S. c.127. § 7. a party summoned before two justices for nonpayment of a church-rate, may give them notice that he disputes the validity of the rates or his liability to pay the same, although no proceeding is commenced in the Ecclesiastiwhere a party so summoned told the justice cal Court; and that he would bring an action son who ven tured to levy the rate, as he thought he had no right to pay, because he had no claim to or seat in the chapel: Held that this was sufficient notice. (a) Sic in orig. an inhabitant of the chapelry, and the occupier of a house in it, and was charged by the rate in the sum of 3l. 6s. 11d. in respect of such against any per occupation. On complaint made by one of the chapelwardens of the non-payment of this sum, a warrant was issued to summon Bealey before the two justices named in this order, and he appeared accordingly. At the hearing before these justices, and in their presence, Bealey declared he would bring an action against any person who ventured to levy the rate, as he thought that he had no right (a) to pay, because he had no claim to or seat in the chapel. The justices having made an order upon Bealey, directing payment of this rate, Bealey appealed to the sessions; and at the trial of this appeal it appeared to the sessions, that at the time when the parties were before the two justices, opinions of civilians had been taken for the purpose of trying the question in the Ecclesiastical Court, but that this circumstance was not stated to the two justices. The sessions being of opinion, that what Bealey stated upon the hearing before the two justices was sufficient notice to them that he disputed his liability to be rated; and, therefore, that their order improperly issued, quashed the same, without deciding on the question of the validity of the rate. After argument, Ld. ELLENBOROUGH C. J. said, Before the passing of stat. 53 G. 3. c. 127. there was not any remedy by summary application to the justices in the case of non-payment of a church rate; nor was there any provision before the 7 & 8 W. 3. for the recovery of small tithes. It was intended by the statute in question, to give a remedy by summary application in the case of a church rate withheld, but not to invest justices of the peace with a power which belongs exclusively to the Ecclesiastical Court, that of deciding upon the validity of the rate or the liability of the person to pay it. Those things were expressly excepted out of the operation of the statute. A jurisdiction is created, with certain exceptions; as first, that the amount shall not be beyond 10%.; in the next place, it must be in respect of a matter where the validity of the rate has not been questioned in the Ecclesiastical Court. These are matters of exception prior to the issuing of a warrant. Unless it be made to appear affirmatively before the justices that the amount is less than 10%., and that no question is made upon the rate in the Ecclesiastical Court, the justice would not have jurisdiction to issue his warrant. Now in this case the jurisdiction of the justice is well initiated. Then comes the proviso which limits the exercise of their jurisdiction. It provides that, although the subject matter be under 10., yet if there should be a purpose notified by the party who is brought before the justices, that he means to dispute the validity of the rate or his liability to pay it, the justices shall forbear. This is the point at which they are to hold their hand. I cannot discover any thing conflicting between this proviso and the enacting part, when I refer the language of each to its proper object. The enacting clause refers to the commencement of the justice's jurisdiction; the proviso to the proceeding upon it after it has well attached: it says, they shall forbear giving judgment thereupon; it does not exclude them from jurisdiction, but only from proceeding further; and it adds, "the person may then proceed to recover his demand according to the due course of law as before accustomed." Therefore it is a cesser of the proceeding before the magistrates. Thus, by referring the Milnrow. introductory part and the proviso to their proper object, the whole Rex v. Chapelis consistent; and the only question that remains is, whether what wardens of passed before the magistrates was a sufficient notice of the party's intention to dispute the rate. To be sure this part of the case makes the statute liable to great uncertainty in its application. And, perhaps, if a person was merely to say before the justices. that he disputed the rate, it would not be sufficient, inasmuch as he ought to shew something to manifest that he disputed it bond fide. But here the party says in effect, "I dispute the validity of the rate," and not only so, but he gives his reason for it, which may, perhaps, be a bad one, "because he had no claim to or seat in the chapel." Nevertheless the reason, however disputable its efficacy may be, was grounded upon a matter which might be litigated in the proper forum. Therefore it does not appear that there was any mala fides; on the contrary, it appears that the party had premeditated the subject matter of dispute; and it is further stated, that he had consulted thereon with ecclesiastical lawyers. Then, was it not sufficiently intimated to the justices by the party that he disputed his liability, so as to satisfy the general language of the proviso? It is disputed on a colour at least and ground of right, and the justices are informed that he means to stand on it, for that if they proceed to levy the rate he would bring his action. I think, therefore, that this was such a notice to the justices of the party's disputing the rate as called upon them to forbear proceeding to judgment. As to the argument derived from the appeal, it is not difficult to conceive many causes of appeal besides that which might affect the validity of the rate, to account for such a provision. BAYLEY J. Looking at the object of the enacting clause, and of the proviso in question, I think they are consistent with each other, and that no difficulty arises in this respect. Before the passing of this statute, a considerable delay 53 G.3. c.127. and expence was incurred in the recovery of church-rates. This was a considerable hardship on the churchwarden, and also on the party paying the rate. The object of the legislature, as it seems to me, was not to draw questionable cases ad aliud examen, but to provide a summary remedy in cases where the party did not dispute the obligation to pay. The legislature never intended to deprive the party of his right to have the validity of the rate questioned in the proper forum. The enacting clause provides "that a justice of the peace may issue his warrant, if the validity of the rate has not been questioned in any Ecclesiastical Court; therefore, if it has been questioned by libel, appeal, or otherwise, in which the parties rated are actors, there the justice cannot interfere: his jurisdiction is stopped in limine. But, supposing the justice entitled to issue his summons, still it was not intended to deprive the party of his right to have the validity of the rate or his liability questioned in the proper forum; and, therefore, at the hearing before the magistrates he may insist on this right, and give notice that he means to dispute the validity in the Ecclesiastical Court. The legislature never intended the magistrate should enter into the discussion of that question, and it would have been hard if they had enacted otherwise. I think, therefore, that the jurisdiction of the magistrates was well determined by the party's insisting on disputing his liability to pay the rate. Then the only question is, whether he gave sufficient notice. His language be SUPP. H wardens of Milnrow. (a) Abbott J. was absent. Rex v. Church- fore the justices is thus, "I will bring an action against any person who ventures to levy the rate: I think I have no right to pay, because I have no claim or seat in the church." Whether this be or be not a valid ground for disputing his liability to pay the rate, it is not for us to decide; nor was it for the justices, against the will of the party. It seems to me that the party had a right to insist that this question should go before the Ecclesiastical Court. HOLROYD J. (a) I am entirely of the same opinion. The enacting part of the clause which gives jurisdiction to the justices enacts, that if the validity of the rate has not been questioned in any Ecclesiastical Court, one justice may summon the party refusing to pay to appear before two justices, so that the condition respecting the proceeding in any Ecclesiastical Court applies to the issuing of the summons, and is not inconsistent with the party's disputing the validity of the rate when he comes before the justices, although a proceeding may not then have been instituted in the Ecclesiastical Court. Neither does the appeal afford to my mind any argument against this construction, because there are numerous grounds of appeal to which that provision may be referred. It seems to me, also, that the notice was sufficient that the party disputed his being liable, for he said that which was tantamount to saying that he was not liable. This is somewhat analagous to what happens in the Ecclesiastical Court when a modus is pleaded, for in that case, although the court had jurisdiction before, yet it cannot proceed afterwards against the consent of either party. It seems to me that the legislature intended that the magistrate should not have any jurisdiction to determine the validity of the rate or the liability of the party to pay, but that this question should be left, as before, to the Ecclesiastical Court, the proper jurisdiction. Order of sessions confirmed. Profanation of the Church. Pew. Vide 1 Burn, 491. The duty of maintaining order and decorum in the church, lies immediately upon the churchwardens, and if they are not present, or being present do not repress any indecency, they desert their proper duty. Per Sir William Scott. Cox v. Goodday, 2 Hagg. Cons. Rep. 141. An Mainwaring, Bart. v. Giles, H. 2 G. 4. 5 B. & A. 356. action at common law will not lie for disturbing another in the possession of a pew, unless the pew be annexed to a house in the parish. Clergy (Effect of Clergy allowed.) See stat. 3 G. 4. c. 38. § 1. post, title "Homicide." Coals and Coal Mines. VIDE stat. 3 G. 4. c. 38. title "Riots," &c. for the recovery of damages (under 30%.) to Coal Mines pursuant to stat. 56 G. 3. c. 125. |