1791. The KING against The Inhabitants of it was delivered to the parish officers to be executed; and it was not re-sealed and re-delivered by the justices after the alteration. The appellants objected that the order was void in point of law on this ground, but the Sessions over-ruled the obLLANWINIO. jection. The case, after stating that the pauper was originally settled in Llanwinio, stated the evidence relating to a subse quent settlement in Hilrhedin, by taking two several tenements of the supposed yearly value of 34. 10s. and 67. 12s. 6d., concluding with an adjudication by the Sessions "that it was a "fraudulent taking, and that it did not amount in the whole "to 10l. per annum." The Sessions however reserved the two points for the opinion of this Court: 1st, Whether the original order were void on account of the alteration? and, 2dly, Whether the pauper gained a settlement by taking the two tenements, notwithstanding the fraud, the parish of Llanwinio not being privy to the fraud, and there being contradictory evidence (a) as to the value. Bearcroft and Plumer, in support of the order of Sessions, said, that the adjudication by the justices, on matters of fact, that the taking was fraudulent, and was not of the value of 101. per annum, was conclusive. Neither did the alteration vitiate the order, because it was made in the presence, and with the consent, of the other magistrate, and before it was delivered to the parish officers. Leycester, and Douglas, contrà.-The conclusion drawn by the justices was merely a matter of form, in order to raise the questions here; for they have expressly referred the consideration of them to this Court, and stated the whole evidence to enable this Court to form their judgment upon them. Another objection also arises on the case, that there was an interval of a year between the signing of the order by the justices and the execution of it by the officers. Lord KENYON, Ch. J.-There might be some weight in the last argument, if the circumstances of the pauper had been altered. But nothing of that kind is stated here; nor indeed is any question referred to us on this point. The objection arising from the alteration of the order is equally destitute of foundation; it is stated that the alteration was made in the presence of the other magistrate. Such an alteration, so made, would not vitiate a much more serious instrument than this, a warrant by which the life of a person is to be decided. And with regard to the principal question; though the case is very inaccu (a) Which was set forth in the case. rately rately drawn, the conclusion drawn by the justices is decisive; for they expressly state that "it was a fraudulent taking, and "that it did not amount in the whole to 10l. per annum.” ASHHURST and GROSE (a), Justices, assenting, (a) Abs. Buller, J. Both orders confirmed. 1791. The KING against The Inhabit ants of LLANWINIO. The KING against The Inhabitants of NEWBURY. Wednesday, If a party appeal against a poor ground that he parish, the re first establish THE Court of Quarter Sessions quashed a poor-rate, subject to the opinion of this Court on a case; which stated, that rate, on the previous to the appeal a regular notice was given by the ap- has not rateable pellant, Mr. Page, that he intended to appeal on these grounds; property in the that he was not an inhabitant of the parish of Newbury, nor spondents must occupier of any property there; that the tolls of the navigation their case. of the river Kennet, for which he was rated, were neither col- [12 East. 50.] lected, or due there; that he was not rateable at all for those tolls in Newbury, or if he were, not to the amount for which he was rated; and that the rate was for those reasons unjust and unequal. That, after proving service of this notice, the respondents put in the rate in question, and proved the due signing, allowance, and publication, of the same; in which the appellant was rated 401. as occupier of the tolls of the navigation, of the yearly amount of 4001. That the respondents were then called upon by the appellant's counsel to support the assessment upon the appellant, which they declined, relying on the validity of the rate until impeached by evidence on the part of the appellant. The appellant produced no evidence whatever; and the justices, being of opinion that the respondents ought to have produced further evidence in support of the assessment, quashed the rate, subject, &c. Erskine, Milles, and Lane, in support of the order of Sessions, compared this to an appeal against an order of removal, where the established practice is for the respondents to begin. They said, if there were any distinction between the two cases, there is a stronger reason in that case than the present why the appellants should begin; because the order of removal, being a judicial act, might be supposed to be entitled to credit in a court of justice before it was impeached, notwithstanding which it has been the constant practice of the respondents to begin by establishing their own order. Now as a poor-rate, 1791. The KING against ants of which is made by the parish officers, and is only a ministerial act, cannot in its nature be of such authenticity as a judicial act of two magistrates, there seems more reason why it should The Inhabit be supported in the first instance by those who made it. There NEWBURY. is a further reason in this case why the respondents should have begun; because, the first question being Whether or not the appellant occupied any property in the parish? the affirmative lay on those who asserted that he had; and it was impossible for him to prove a negative. At all events, this is a question of mere practice at the Sessions, over which this Court has no controul; the Sessions have a right to direct the mode of their own proceedings, and they have decided in this case that the onus probandi lay on the respondents. Bearcroft, King, and Blackstone, stated, that the practice at the Berkshire Sessions had always been with them; where, after the respondents had proved the poor-rate to be regular in point of form, they have called on the party who supposed himself to be grieved by it, to support the objection by evidence. Lord KENYON, Ch. J. at first hinted that this Court ought not to interfere in such a case, to controul the practice of the Court of Quarter Sessions. But afterwards he said, that law, justice, and convenience, required that the respondents should begin in cases of this kind as well as on appeals against orders of removal; in which last cases the rule universally obtains. Here the first objection to the rate was, that the appellant had no rateable property in Newbury; the respondents therefore should have shewn that he had some property, in respect of which he was liable to be rated: it was impossible for the appellant in the first instance to prove the negative. In writs of error, and appeals to the House of Lords, where each party is in possession of all the evidence on both sides, the party who impeaches the decision below always begins: but in a case of this kind, where it is an ex parte proceeding, and where the appeal comes on to be heard naked and destitute of all evidence before the Court, those who have done the act ought to establish the propriety of it by evidence. ASHHURST, J.—The respondents ought to have established their own rate. At all events, we ought to give credit to the justices at the Sessions that they know their own practice; and no ground is laid before us to warrant us in saying that they have acted wrong. BULLER, BULLER, J.-My first doubt was about the propriety of any case being sent here to determine upon the practice of the Court of Sessions: but, as the case is here, I think we ought to give our opinion on that practice, and to lay down a general rule, which may be a guide in future to all the Quarter-Sessions; and I see no objection to that which has been suggested by my Lord. But The Court said, in this case it would be proper to send it down again to the Sessions to be heard (a). (a) J. Heywood, amicus curiæ, said, after this case was heard, that at the Yorkshire sessions, where more appeals of this kind were lodged than in any other county, when the appellant objected to his being rated at all, it is the practice for the respondents to begin; but if he object to the quantum of the rate, then the onus lay on him. 1791. The KING against The inhabitants of NEWBURY. The KING against The Inhabitants of St MARY THE LESS, DURHAM. Wednesday, there be a dis some other THE HE Reverend H. Egerton appealed against a poor-rate if the owner of made for the parish of St. Mary the Less, Durham, be- a house occupy part of it, he is cause he was over-rated; when the appeal was allowed, and the liable to be rated to the poor for poor-rate amended, so that the appellant might be rated for the whole, unless two rooms only, part of his dwelling-house, and for the gar- tinct occupation den behind it, as occupied by him together, of the yearly va- of the rest by lue of 51. instead of being rated for the yearly value of 247. at person. which the house with the stable and garden were charged in that [10 East. 357.] assessment, "The Court of Sessions being of opinion, upon the " evidence given, that the remaining part of the house and " stable are not, nor have been, occupied by the appellant, "and therefore that he ought not to be rated in respect of the "same." And they also stated the following facts: The former occupier of the whole of the premises in question had been rated at 241. yearly. In 1783 the premises were not rated, because they were not occupied. In August 1783, the appellant purchased the premises for 5851. and afterwards repaired the same; but neither he nor any other person has since such purchase inhabited or resided in the dwelling-house, except as hereafter mentioned; but the keys of the house always remained in his custody. The appellant resides part of his time in his prebendal house in the college at Durham; during which residence he frequently for his own amusement uses a throw or lathe, and other turning instruments, in one of the rooms of the dwelling-house in question for an hour or two in a day, and has three chairs and a table in that room; on many of those occassions he has 1791. The KING against The Inhabit ants of St. MARY THE LESS. been attended by a whitesmith and cutler to sharpen his tools, and assist him in his work: occasionally in the winter season there has been a fire in that room; and in another of the rooms he has frequently kept corn for his horse; and these two rooms have been so used occasionally in the course of the present year. The appellant occupies the garden, and keeps a gardener to take care of that and another garden; and it was proved on the part of the appellant that the garden in question was worth 4s. a-year; at which rate he was willing to be rated for the same. The gardener sometimes puts his flower-pots, shrubs, &c. and some of his working-tools, into another part of the dwelling-house, where other lumber belonging to the appellant is also sometimes put by his servants: but no person has ever slept or lodged in the dwelling-house, nor has any household furniture (except as above) been kept therein since the appellant purchased the premises; except that the appellant has out of charity permitted a poor man and his wife to occupy and live rent-free in the kitchen, between which and the rest of the house the door communicating was stopped up. The stable has not been occupied for any purpose whatever for upwards of two years, and has been for that time unfit to be used as such; but the appellant in the hunting season of the years 1787, 1788, and 1789, made use of it and a small yard annexed to it as a kennel for his hounds. It further appeared that, about five years ago, a person offered to take the premises in question for 251. a-year, which was refused. Law and Chambre, in support of the order of Sessions, said, It would be sufficient for them to reply on the conclusion of fact drawn by the justices at the Sessions, that the appellant was not the occupier of any other part of this house than the two rooms and the garden. In R. v. Hurdis (a), where the question was, Whether the appellant were or were not rateable under the circumstances of the case? this Court were of opinion that they were bound by the adjudication of the Sessions that "he was the oc"cupier," notwithstanding the justices also stated all the circumstances which were the foundation of their opinion. But even if it were now competent to this Court to examine the propriety of the judgment of the Sessions, there is nothing in reason to induce them to draw a different conclusion; since a party is not liable to be rated to the poor as being the owner of a house, but merely in respect of his occupying it. Here it ap(a) Ante, 3 vol. 497.. pears |