And lastly, Because the rate and assessment is, in other respects, illegal, unequal, partial, oppressive, and unjust.

And I hereby give you the said churchwardens and overseers notice, to produce at the hearing of the said appeal the said pretended rate or assessment, and all other rates and assessments made for the relief of the poor of the said parish for the twenty years last preceding the date hereof; likewise certain valuations made by J. L., J. C., and T. B. some or one of them, and every other valuation made by the direction of any vestry or any churchwardens and overseers of the said parish; and that you, A. B. C. and D. respectively produce all deeds, leases, agreements, admissions, and other documents respecting or concerning the premises, for which you, and each of you, are jointly or severally rated or assessed, or appear so to be, in and by the said rate or assessment, or omitted to be, therein rated or assessed. Witness my hand, this 10th day of April, 1829.

R. B. B.

SECTION III.

OF THE GROUNDS OF APPEAL AGAINST POOR-RATES. This subject embraces the whole Law of Rating.]-The consideration of the grounds of appeal against poor-rates necessarily involves the cousideration of the whole law under which poor-rates are made;-of the parties by whom they must be made; of the purposes for which they may be made; of the subject matters in respect of which and the parties on whom the assessment of them must be imposed; of the proportions which should be observed in making them; and of the forms according to which they must be made, published, and allowed. To enter into all the details, and to present all the distinctions applicable to this branch of the law, would be far beyond the compass of this work; but it is proposed to state the principles by which each division of the subject is governed, and to elucidate them by the most recent examples.

43 Eliz. c. 2, s. 1, the Test of the Law on this subject.]-Although the enforcement of contributions for the relief of the poor may be traced to very early times, the present system of rating is entirely governed by the 43 Eliz. c. 2, s. 1, which may, therefore, be regarded as the test to which all questions of rating must be referred. By that statute it is enacted, "that the churchwardens and overseers of the poor of every parish, or the greater part of them, shall, by and with the consent of two or more justices of the same county, whereof one to be of the quorum, dwelling in or near the same parish, or division where the same parish doth lie, raise weekly or otherwise, by taxation of every inhabitant, parson, vicar, and other, and of every occupier

of lands, houses, tithes impropriate, propriations of tithes, coal mines, or saleable underwoods in the said parish, in such competent sum and sums of money as they shall think fit, a convenient stock of flax, hemp, wool, thread, iron, and other necessary ware and stuff, to set the poor on work and also competent sums of money for and towards the necessary relief of the lame, impotent, old, blind, and such other among them being poor and not able to work; and also for the putting out of such children to be apprentices—to be gathered out of the same parish, according to the ability of the same parish, and to do and execute all other things, as well for disposing of the said stock as otherwise concerning the premises as to them shall seem convenient."

1. Persons by whom the Rate is to be made.]—The first question which arises on this statute is, By whom the rate is to be made?

The rate can only be made by the churchwardens and overseers, or the major part of them. Upon them the duty is imperatively cast, and, if neglected, may be enforced by mandamus (g), or they may be indicted (h). By 43 Eliz. c. 2, this duty is confined to overseers of parishes; but inasmuch as there were many parishes of too great extent to be governed by one set of overseers, the 13 & 14 C. II. c. 12, s. 21, provided that in such cases the poor of every township or village of such parishes shall be maintained within it, and that for such place two or more overseers shall be annually appointed. This appointment can, however, be made only in respect of a township or vill; and an appointment for a district having no claim to either of these titles, although recently peopled with a numerous population, will be quashed as invalid (i). So where it is not made to appear that the entire parish could not, under one appointment of overseers, derive the benefit intended by 43 Eliz. c. 2 (j).

Parishes which contained boroughs corporate, not co-extensive with them, early felt the inconvenience of one rate for the whole, and accordingly a practice arose of rating the different parts separately, by distinct sets of parish officers; and such separations, unless shown to have commenced since 1759, are now made legal (k).

(g) Thorney's case, Ld. Raym. 1009; 2 Salk. 531; R. v. Barnstaple, 1 Barnard. 137; Lidleston v. Exeter, 1 Bott, 77; Stra. 1259. Enforced by attachment, R. v. Edwards and Symonds, 1 Bla. R. 637.

(h) Semb. 4 Burn's J. 28th ed. 104.

(i) R. v. Standard Hill, 4 M. & S.

879.

(j) Reg. v. Worcestershire (Js.), 3 N. & P. 434, Trin. 1838.

(k) 59 G. III. c. 95, passed 12 July, 1819, viz. the year after the decision in R. v. Gordon, 1 B. & Ald. 528.

The mode of obtaining the benefit of 13 & 14 C. II. c. 12, in cases where it has not been brought into operation, is by procuring the appointment of overseers by magistrates of the division in which the township lies; which, if granted, may be questioned, either by appeal to the sessions (1), or by the removal of the appointment into the court of queen's bench by certiorari, on which the court will enter into the merits as disclosed by affidavit (m); and, if refused, may be enforced by mandamus, on the rule for, or on the return to, which the propriety of the charge may be fully discussed and solemnly decided. A rate made by other than the churchwardens and overseers, or the major part of them, for whatever district, is wholly void, and cannot be enforced by mandamus or other legal process (n).

2. Purposes for which a Rate may be made, and its Proceeds applied.]-A rate can only be made in terms for the relief of the poor; but various statutes have prescribed the manner in which its funds may be disposed, e. g. in building and governing workhouses (o), the payment of an assistant overseer (p), of police constables; and some latitude in the construction of this purpose must be admitted. Thus, in practice, the expense of litigating questions of settlement, when sanctioned by the vestry, or by the responsible advice of the parishioners, has long been allowed, and would scarcely now be disputed (q). So probably the cost of a valuation of the property of a parish, if directed by a vestry, with a view to equality of rating, even without express enactment to authorize it (as in the instance of 6 & 7 W. IV. c. 96, s. 3), would be holden fairly chargeable to the rate (r). But the expense of a prosecution for assaulting a constable of the parish in the execution of his duty, although directed by a magistrate, and the constable

(n) R. v. Loxdale and others, 1 Burr. Rep. 445.

(0) 9 G. I. c. 7; 22 G. III. c. 83; 59 G. III. c. 12; 4 & 5 W. IV. c. 76, s. 21-25.

(p) 59 G. III. c. 12, s. 7. The courts take no judicial cognizance of the nature of the appointment, or extent of the powers of an assistant overseer under it, till made appear, Bennett v. Edwards, 7 B. & C. 586; 8 id. 702; 6 Bing. 230, S. C.; Batcheldor v. Hodges, 4 Ad. & E. 592; 6 Nev. & Man. 75; R. v. Yorkshire (Js., N. R.), 6 Ad. & E. 863, 871;

2 Nev. & P. 105. See the other acts authorizing sums to be taken from the poor-rates, as collected in the "Instructions for the Poor Law Commissioners for Allowance of Overseers' Accounts," dated March 1, 1836.

(q) Per Ashurst, J., in R. v. Essex, 4 Term Rep. 495; R. v. Micklefield, Caldecot, 509; 1 Bott's P. L. 91, 113. and post, tit. Appeal against Overseers' Accounts, and 4 & 5 W. IV. c. 76, s. 82. See 1 Ad. & Ell. 836, R. v. Fowler; 3 Nev. & M. 826 (a waywarden's accounts); and post, p. 704, 705.

(r) This view has since been supported by Taunton, J., R. v. Gwyer, 2 Ad. & Ell. 227; 4 Nev. & M. 158.

bound over to prosecute, cannot be thus defrayed (s). It was long ago holden that a rate could not be made to reimburse overseers after the determination of their office for monies advanced, though for the relief of the poor, while in office; and, therefore, that an overseer removed from office during his year, had no remedy for previous advances, but should have taken care before he expended money that he had made a rate to cover it (t). So also it was holden that an overseer remaining in office for several years, could not, in the last year, make a rate to reimburse himself for monies expended in former years, but was bound to confine his accounts to the current year (u). But stat. 41 G. III. c. 23, which provides for the collection of rates during the pending of appeals against them, enacts (v) “that the churchwardens and overseers, or any of them, out of any money they shall collect in pursuance of any rate for the relief of the poor, may reimburse the preceding churchwardens and overseers, or guardians, such sums as they, or any of them, have heretofore advanced or expended for the relief or maintenance of the poor of such place, during the time that no rate or assessment for the relief thereof has been made, or during the time that any appeal has been depending which affected the whole of such rate or assessment, or upon hearing of which the whole might be quashed;" and a remedy is given to the applicants, in case of refusal, by application to the court of quarter sessions, who are empowered to make order for the payment on the existing churchwardens and overseers, which may be enforced by distress. It is not, however, clear whether this section is prospective, or only applies to cases of grievance existing at the time, which the other provisions of the act were designed to prevent for the future;-a question raised in a recent case, but not decided, as the certiorari was refused on a formal ground (w): but which probably would have been answered in favour of the continuance of the provision. The safe construction of the act would seem only to authorize such reimbursement to the last preceding, and not to any other antecedent officers; and in the single case of inability to collect former rates by reason of appeal: while it still leaves the general obligation to raise the funds of the year within the year unimpaired, and parish officers who omit to do so, without remedy. The rate should be prospective, and for such

(s) R. v. Bird, 2 Barn. & Ald. 522; R. v. Seville, 5 B. & Ald. 180. See R. v. Warwickshire (Justices), 2 D. & R. 299.

(t) Tawney's case, 2 Salk. 531.

(u) R. v. Goodcheap, 6 T. R. 159. (v) Sect. 9.

(w) R. v. Cambridgeshire (Justices), 3 Barn. & Adol. 887.

period as practice has shown most convenient for meeting the expenses of the parish (x).

3. What are the Subjects in respect of which the Assessment may be made.]-The poor-rate is a tax on the person in respect of property locally situate or enjoyed within the parish. The statute, it will be observed, points out two classes of persons as liable to contribute : Inhabitants and occupiers of certain property therein specified, according to the ability of the parish. In construing this act, the word "inhabitant" has been construed to mean resident, as all occupiers may, for certain purposes, be said to inhabit. A person who resides, therefore, may be liable to assessment in respect of other visible resources within the parish, than those specified as the subjects of occupancy; but a person non-resident can only be charged as occupier of one of the descriptions of property set forth. An inhabitant possessing visible property, real or personal, is liable to be placed on the rate, though on appeal his rateable property may turn out to amount to nothing (y).

It will be perhaps more convenient to consider the subject matter of rating specified in the act, for which all occupiers are liable, and the occupancy in respect of which the liability accrues, with the principle of valuation, before we inquire what are the subject matters of rating for which parties are liable as inhabitants, and who are such inhabitants.

"Lands and Houses."-The mention of these, the chief subjects of rating, gives rise to three questions.

First. What is rateable under the denomination “land?”

Second. How must lands and houses be occupied to render them rateable?

Third. On what principle, and in what manner, are lands and houses to be rated in respect of adjuncts or circumstances which increase their value to their possessor?

First. What is Rateable under the Denomination "Land."]-Every thing is rateable under the denomination of land, which implies a

(x) Durrant v. Boys, 6 T. R. 580; but not retrospective, at least semb. beyond the year, Woods v. Reed, 2 M. & W. 777. See last page.

(y) Per Tindal, C. J., in Marshall v.

Pitman, 9 Bing. 602. A party having no stock in trade was rated as an inhabitant of a parish. His remedy was held to be by appeal only. See ante, S. C.