REX v. DAVIE. 1837. Jan. 30. [388] WILLIAMS, J. (1): I am of the same opinion. I think that "unà cum assensu does not necessarily mean that the assent should be given pari passu with the nomination. It is merely Latin of a certain kind for "together with the assent;" and the nomination is made together with the assent, if the assent be afterwards given by vote. On the construction of the word "inhabitants " I agree with my Lord. Rule discharged. REX v. THOMAS RAYMOND BARKER, ESQUIRE, (6 Adol. & Ellis, 388-391; S. C. 1 N. & P. 503; W. W. & D. 162.) By an Act for rebuilding a parish church, certain trustees were empowered to borrow money, and for payment thereof to make rates "on the full annual rent or value of the houses, warehouses, shops, buildings, lands, tenements, and hereditaments rated or rateable for the relief of the poor of the said parish of" &c., on all and every the tenants or occupiers of the said parish." In case of non-payment, the Act gave a power of distress, under warrant, which any justice of the county was authorised and required to grant, on certain proof: 66 Held that, under the first-mentioned clause, a lessee and occupier of tithes was rateable in respect of them, tithes being rated to the poor within the parish. And that justices of the county, who had refused a warrant on the ground that tithes were not rateable under the Act, ought to be compelled by mandamus to grant it. GUNNING in the last Term obtained a rule nisi for a mandamus, commanding T. R. Barker, Esq., and two others, justices of Buckinghamshire, to grant a warrant for levying by distress upon the goods of Henry Webb 317., assessed upon him by a rate made in pursuance of stat. 1 Will. IV. c. lvii. (local and personal, public), for taking down and rebuilding the parish church of Great Marlow. The Act (by sect. 32) empowered certain trustees to raise money for the purposes therein mentioned, by loan or annuity, and (sect. 40) to make a rate or rates, not exceeding &c., "on the full annual rent or value of the houses, warehouses, shops, (1) Littledale, J. was absent on account of indisposition; Coleridge, J. was in the Pail Court; Patteson, J. sitting at Nisi Prius. buildings, lands, tenements, and hereditaments rated or rateable for the relief of the poor of the said parish of Great Marlow aforesaid, on all and every the tenants or occupiers of the said parish," to be appropriated in payment of such annuities and of principal and interest of the sums so borrowed. On nonpayment of the rate, and after demand and summons, &c., the Act (sect. 42) gave a power of distress under warrant, which it was declared lawful for any justice of the county, and such justice was by that clause "authorised and required," to grant, on certain proof. Sect. 54 gave an appeal against the acts of *trustees or of justices. The trustees, on December 3rd, 1835, made a rate pursuant to the Act, and thereby assessed Henry Webb at the said sum of 317., for tithes of the parish, of which tithes he was lessee and occupier. Tithes arising within the parish were rateable and rated there to the poor. The churchwardens (whose duty it was under the Act) demanded payment of Webb, which he refused; and they then, after taking the other steps pointed out by the Act, requested the above-mentioned three justices, assembled in Petty Sessions, to issue their warrant for levying the 317. by distress. The justices refused, on the ground (previously alleged by Webb) that tithes were not rateable under the Act. Webb had not appealed against the rate within the time limited by sect. 54. Sir W. W. Follett and Phillimore now showed cause: An owner or lessee of tithes is not liable to church rate unless by statute, because the tithes are already charged with the burden of repairing the chancel. And there is no reason for supposing it intended, by the statute in question, to lay the double burden upon these tithes. The subjects of rate enumerated in sect. 40 are "the houses, warehouses, shops, buildings, lands, tenements, and hereditaments," rated or rateable to the poor in Great Marlow. Where general words, in such a clause, follow words of a more limited import, the larger ones are qualified, in construction, by those which precede. In Rex v. The Manchester and Salford Waterworks Company (1) the meaning of the word "tenement" was limited conformably to (1) 1 B. & C. 630. REX V. BARKER. [ *389 ] REX ት. BARKER. [ *390 ] [ *391 ] this rule (which is recognised *in Rex v. The Trustees for paring Shrewsbury (1)), and with a reference to the objects of the Act, as shown by several of its clauses (2). The word "tenement" is used in sects. 44 and 46 (3) of the Act now before the Court, in a manner which makes it, there, clearly inapplicable to tithes. And in Phillips v. Jones (4) it was held that tithes would not pass by a release of "hereditaments" belonging to messuages and lands. In stat. 32 Hen. VIII. c. 7, s. 7, "tithes " and "lands, tenements, or other hereditaments," are used in wholly distinct senses. The qualifying words "rated or rateable for the relief of the poor" seem applicable to "hereditaments" only. At all events, the "tenements and hereditaments" spoken of must be considered as including only things ejusdem generis with those specified before. If there be even a reasonable doubt in this case, whether or not the magistrates would be justified in acting, -the Court will not grant a mandamus. Kelly, contrà: It is not necessary to dispute the principles of construction laid down in the cases which have been cited. But here the general words "tenements and hereditaments" are followed by others which fix their meaning, "rated or rateable for the relief of the poor;" and the rate upon the rent or value of such tenements and hereditaments is to be laid "on all and every the tenants and occupiers of the said parish." Any argument from the general law, as to liability in respect of tithes, is out of place here, since the question arises *upon a statutory provision made on purpose to facilitate rating by regulating the assessment according to the poor-rate. The supposed doubt in this case ought not to excuse the justices, there being an appeal clause in the statute: Rex v. Trecothick (5). LORD DENMAN, Ch. J.: It would be repealing the statute to say that the words "tenements, and hereditaments rated or rateable for the relief of the (1) 37 R. R. 409 (3 B. & Ad. 216). (2) Sir W. W. Follett also referred to a case of the same class, not then reported, probably Colebrooke v. Tickell, 43 R. R. 520 (4 Ad. & El. 916), (3) It is not thought necessary extract these. (4) 3 Bos, & P. 362. to (5) 41 R. R, 460 (2 Ad. & El. 405). poor of the said parish," do not include this property. Acting, therefore, upon the principle that the Court will not grant a mandamus which would expose justices to danger, but that it must put them in motion where they clearly ought to proceed, I think we must order that this mandamus should go. We should have wished to consult our brothers who are absent; but, having no doubt upon the point, and there being so many other subjects before us for discussion, we think we ought not to delay pronouncing our judgment. The rule must be absolute. WILLIAMS, J. (1) concurred. Rule absolute. REX v. PAYN. (6 Adol. & Ellis, 392–407; S. C. 1 N. & P. 524; W. W. & D. 142; 1 Jur. 54; 6 L. J. (N. S.) M. C. 62.) The treasurer of a county in possession of books containing the entries of his accounts, with the discharges signed by the magistrates as directed by statute, which also directs the accounts and vouchers to be deposited with the clerk of the peace to be kept with the county records, may be compelled by mandamus to deposit the books with the clerk of the peace accordingly although the discharges are claimed by the treasurer as necessary for his own personal exoneration, and that of his father, the late treasurer. The mandamus issued, reciting the book to be in the defendant's custody, power, and control; and was tested the day on which the rule for the mandamus was made absolute. Return, that the book was not at the time of the teste, nor since, nor at the time of the return, in the custody, &c. The COURT refused to take the return off the file, or quash it, on motion, upon affidavit of the facts as above stated, and of the belief of deponents that the defendant's object was to evade the process of the Court. But the COURT refused the defendant the costs of the last motion, though moved with costs. SIR JOHN CAMPBELL, Attorney-General, obtained a rule in last Term, calling upon William Payn, the treasurer of Berkshire, to show cause why a mandamus should not issue commanding him to deposit with the clerk of the said county the two books containing his accounts of the sums of money received and paid by him as such treasurer from the date of (1) Littledale, J. was absent on account of indisposition; Coleridge, J. was in the Bail Court; Patteson, J. 1837. Jan. 30. [392] REX x. PAYN. [ *393 ] his appointment, and which accounts had been passed by the justices in Quarter Sessions (1). The rule was obtained at the instance, and on the joint affidavits, of two justices of the county. They deposed that the defendant was appointed in 1822; and that, from the early part of 1825 up to Epiphany Sessions, 1835, he passed his accounts by producing to a *committee of the justices, called the Finance Committee, certain books, one from the date of his appointment to 1833, the other from thence to the time of making the affidavit, represented by him to contain a true account of sums received and paid, and distinguishing the uses to which the sums were applied, with such vouchers as he thought proper; and that such accounts had been passed by the justices, and the books and vouchers returned to the defendant that he had passed no other accounts till Epiphany Sessions, 1836: that none of the accounts so passed and entered in the said books had been deposited with the clerk of the peace, or formed part of the county records: that, from his appointment to July, 1825, the defendant published an annual abstract of his accounts, and since then a quarterly abstract, which abstracts had been deposited by him with the clerk of the peace, together with such vouchers as the defendant thought fit. The affidavits then stated certain inaccuracies and omissions in the defendant's accounts, appearing, as was alleged, from the above abstracts; and one of the deponents stated that, if the abstracts were correct (which he had no means of knowing, from the accounts not being deposited), certain receipts had been omitted, and certain payments twice charged: and items were specified in support of this. It was added that the treasurer had disclaimed being bound by the abstracts, and had said that he would be bound only by his books, which were correct. The deponents also stated that they believed the accounts could not be understood, and did not know what steps the justices should adopt, till the accounts in the books were deposited; and that they had demanded that the books should be deposited, but defendant had refused. (1) See stat. 12 Geo. II. c. 29, ss. 7, 8, 9; stat. 55 Geo. III. c. 51, s. 18. (Compare the County Rates Act, 1852 (15 & 16 Vict. c. 81), ss. 1, 51.-R. C.) |