rish. It is true, in the case of a canal, where the tolls varied in different parts of the line, it was decided a rate could not be made on the company in each parish, according to the length of the canal in it-The King v. King Swinford. But in a case recently before this Court, where the tolls were the same throughout the whole line, it was held that the proportion to be paid by the company in any given parish along the line, must be ascertained by a mileage calculation-The King v. Woking; and as it is impossible to suppose any superiority in one part of the apparatus over another, the same principle, we think, should be applied in the present instance; and that the assessment upon the amount of profit received in the parish was wrong. It remains only to consider, whether the deduction of 350l., being the annual value of that part of the apparatus which lies within the colleges and halls, ought to be made and we purposely reserved the consideration of this point until the last, because it is connected with a principle which regulated our answer to the last question; for, inasmuch as the rate is imposed on the land used for the apparatus, and as none can be imposed on that part which lies in those extra-parochial places, the amount which would otherwise have arisen therefrom, that is, the aforesaid sum of 350l., must, we think, be deducted. Upon the whole, therefore, in those particulars, as to the sums that are agreed to, the amendment of the rate will be of course; but as we have no materials for ascertaining the proportions between the parishes, it must go down to the Sessions to be in that respect adjusted.

On the 8th of September 1836, two Justices made an order of removal of Anne Bate and her two children from the parish of Newport to the parish of Tibberton, notice of which order was duly served. Notice of appeal was given on the 29th of September for the ensuing Sessions, but the appellant's attorney being unable to attend to business, the notice was countermanded, and the appeal was entered and respited. On the 19th of December the statement of the grounds of the appeal was served on the respondents, and the Sessions were held on the 2nd of January 1837. When the appeal came on to be heard, it was objected that the statement had not been served in time within the 4 & 5 Will. 4. c. 72. s. 81, as an interval of fourteen clear days was required. It was answered that the statute would be satisfied if the days were taken as one day inclusive and one exclusive. The Sessions were of a different opinion, and dismissed the appeal.

In Hilary term, 1837

Sir F. Pollock obtained a rule nisi for a mandamus to the Justices of Salop, commanding them to enter continuances, and hear the appeal, against which

Whateley now shewed cause.-The 4 & 5 Will. 4. c. 76. s. 81. enacts, that "where notice of appeal against an order of removal shall be given, the overseers of the parish appealing against such order shall, with such notice, or fourteen days at least before the first day of the sessions at which such appeal is intended to be tried, send a statement in writing of the grounds of appeal." The question is, what is the meaning of the words, fourteen days at least? If it had been simply fourteen days' notice, the rule is well established, that one day ought to have been reckoned inclusive, and the other exclusive-Hardy v. Ryle(1), The King v. the Justices of West Riding (2). Where, indeed, the legislature uses the words "clear days," they are all to be complete, and not taken one inclusiveThe King v. the Justices of Herefordshire (3). The only case where the words "at

(1) 9 B. & C. 603; s. c. 7 Law J. Rep. M.C. 118. (2) 4 B. & Ad. 685; s. c. 2 Law J. Rep. (N.s.) M.C. 93.

(3) 3 B. & Ald. 581.

least," is Zouch v. Empsey (4), which was an application under the Lords' Act, 32 Geo. 2. c. 28, where fourteen days' notice at least is required to be given to the creditor, and the Court held that they must be clear days. That is an authority for construing the present statute, and supports the judgment of the Court of Quarter Sessions.

Sir F. Pollock, in support of the rule.There is no reason for not applying the general rule of construction to this section; and if it be applied, the statement was delivered in time. Some statutes require a notice of a precise length of time, in which case a party is not justified in giving a longer notice. This act enables a party to give his statement at any time, provided he give at least fourteen days' notice. That explains the use of those words. They cannot have been intended to render one day more requisite than would have been so without them. As to the case of Zouch v. Empsey, the report is a very short and loose note, and was prior to Hardy v. Ryle, in which the general rule was laid down after consideration.

[COLERIDGE, J.-We have decided on our own rules for the examination of attornies, Rule Hilary, 6 Will. 4. s. 5, that three days' notice at the least requires three clear days at least (5).]

Per Curiam.-[LORD DENMAN, C.J., LITTLEDALE, J., PATTESON, J., and Coleridge, J.]-As there is a decision upon these words, it is best to abide by the construction which has been put upon them; though the general rule is more reasonable.

Rule discharged.

1838. THE QUEEN V. THE BIRMINGJan. 17. S HAM CANAL COMPANY.

use. The act then proceeded to make various enactments respecting the Warwick Canal, and in section 52, the tolls were set out which were to be taken on that canal; and, in section 53, it was enacted, that the said tolls and duties should be exempted from the payment of all assessments:-Held, (Coleridge, J. dissentiente,) that the tolls receivable by the Birmingham Canal were exempt.

This was an appeal against a rate made by the churchwardens and overseers of the poor of the parish of Aston, near Birmingham, whereby the Company of Proprietors of the Birmingham Canal Navigation, were rated at the sum of 45l. 11s. 8d., for their mileage and dues, arising from land occupied by the canal in the parish of Aston, after making the proper deductions, which was confirmed by the Court of Quarter Sessions for the county of Warwick, subject to the opinion of this Court, on a

CASE,

which stated, that by the 33 Geo. 3. c. xxxviii, a canal was authorized to be made from Warwick to Birmingham, and by section 3, the proprietors of the intended canal were empowered to cut and open it into the Digbeth branch of an existing canal, called the Birmingham, and Birminghain and Fazeley Canal Navigation, since constituted the Birmingham Canal Company. And by section 5, the proprietors of the latter were authorized to take for their own use, certain tolls, as a compensation upon all goods carried from and out of the said Digbeth branch into the Warwick Canal, and also out of the latter into that branch, which rates, by section 6, were to be paid to such persons, and at such places, as the proprietors of the Birmingham Canal should think fit to appoint. By section 52, the proprietors of the War

Canal Act.

Under the 33 Geo. 3. c. xxxviii. the Warwick Canal was made, and by section 3, it was allowed to be cut into a branch of the Birmingham Canal, the proprietors whereof were authorized to take certain tolls on all goods passing into that branch, for their own

(4) 4 B. & Ald. 522.

(5) See In re Prangley, 4 Ad. & El. 781; s. c. 6 Law J. Rep. (N.s.) K.B. 259.

NEW SERIES, VII.-MAG. CAS.

specified rates and duties for the carriage of goods along the residue of their canal; and by section 53, it is enacted and declared, "The said rates, tolls, and duties, shall at all times hereafter be exempted from the payment of all and every parliamentary and other taxes, rates, assessments, or impositions whatsoever." No part of the canal belonging to the defendants, upon which any question arose in this appeal, lies

Н

within the parish of Aston, except 1,632 yards; and the tolls authorized to be taken under the 33 Geo. 3, are the only tolls which have been paid to the said company, for passing this 1,632 yards, in any case in which such tolls have become payable. No rate has ever been laid or assessed in respect of the tolls collected under sect. 5. The toll-house at which a part of such tolls is actually received by the appellants, is in the parish of Aston; another part at a toll-house at Farmer's Bridge, in the parish of Birmingham; and another part at the company's office, also in that parish. The appellants, who were formerly only liable to be rated for their canal, according to the value of the adjoining land for agricultural purposes, have since become rateable, according to the ordinary provisions of the law. If the rates or dues authorized to be taken by the appellants under the provisions of the 33 Geo. 3, or the canal, in respect thereof, are not assessable at all, or not in the parish of Aston, then the rate is to be reduced to 281. 19s. 2d., the difference being the rate on the company, in respect of the tolls received by them under section 5.

The questions for the opinion of the Court were-first, whether the company were rateable at all for the tolls imposed by virtue of section 5 of the act aforesaid; secondly, whether they were rateable for the same in the parish of Aston.

M. D. Hill and T. W. S. Daniel, were heard in support of the order of Sessions, and

The Attorney General and Waddington,

contra.

LORD DENMAN, C.J., (after reading the 52nd, the 53rd, and the 5th and 6th sections,) observed, that the rates and duties in the 6th section, were as correctly described in the 53rd, as those in the 52nd. Indeed, the word "tolls" was introduced in the former, but not in the latter. The exemption must, however, apply to all the rates, tolls, and duties authorized to be taken by the act, unless it could be seen in a clear and satisfactory manner, that the legislature did not so intend. That did not appear. It must be supposed that they had some public object in view; and from the state of the concern, and the necessity of en

couragement, it might be thought expedient, and for the public benefit, that all rates mentioned in the act, should be exempt from paying parish rates.

66

LITTLEDALE, J.-The Birmingham Canal was not liable to be assessed at a higher rate than the adjoining land, and then the tolls given by section 5, were a bonus to the Birmingham Canal, to agree to the junction being made. By section 52, there is a sort of schedule of the rates and duties to be paid on the Warwick Canal, and then come the words of section 53, on which this question arises. What are the said rates, tolls, and duties"? They are mentioned by sections 5 and 52, and it is said that the exemption applies to both, and the words are sufficient to apply to both. If the word such had been used instead of said, there would have been good ground to contend that the exemption was only to be understood to apply to the tolls to be taken on the Warwick Canal. But it is introduced in a separate section, and although that is arbitrary, and in acts of parliament no notice can be taken of sections, because, in the parliament roll, they are continued without any stop or division ; yet, I think, if this had been intended to apply to the antecedent section, it would have been differently introduced. It appears to be clearly the beginning of a new enactment. It seems to have been intended to give the Birmingham Canal Company the same exemption as they enjoyed previously.

WILLIAMS, J.-Upon the whole, I am of the same opinion, though, I confess, without any great confidence in it. The question is, whether the words in the exempting section have reference to the tolls and duties last mentioned, or to the tolls and duties mentioned at a considerably earlier part of the act, viz. in section 5. The words are certainly large enough to include them, and, therefore, although it may be doubtful whether they were meant so to be applied, I think they ought to have that construction.

COLERIDGE, J.-This is certainly a very doubtful question, and as at present advised, I should be inclined to hold a different opinion from that of the other members of the court. Where, in an act of parliament like the present, the company or individuals are to be exempted from all

burdens, at the expense of third persons, that exemption ought to be clearly expressed. It cannot be said that that is the case here, for the words might refer to the antecedent section only. I admit they are large enough to extend farther, but still it is left in doubt; and looking at this act of parliament, as I think we ought to do, as a private instrument, and seeing how it is divided, we might have expected to have found a section of exemption at the end of that branch of the statute, in which the particular subject-matter is provided for. There are sections applicable to the compensation to be given to the Birmingham Canal, and we should have expected to find the exemption there. However, it is not so; the subject is finished, and the legislature has gone on to a different subject, viz. the Warwick Canal, and the tolls to be taken thereon. And then this exemption is inserted, in words which might refer to the immediately antecedent section. It seems to me, that it would be a more natural construction to confine the exemption to the tolls mentioned therein.

Rule for reducing the rate, absolute.

Local Act, Construction of-Parochial Payments of Stipends and Church Repairs.

The parish of St. Saviour, Southwark, was formed by a statute in the 32 Hen. 8, and has certain wardens who have been rendered a body corporate, and now hold certain lands and other possessions vested in them, for the purposes of the parish. James I. granted to them the rectory of St. Saviour's to maintain two chaplains, a schoolmaster, and an usher, and to repair the parish church, paying the chaplains 60l. per annum, and the schoolmaster and usher 30l. per annum. By an act of parliament in the 22 & 23 Car. 2, which recited, that the rectory was insufficient, it was enacted, that the wardens and overseers of the poor, and six or seven of those inhabitants who had borne the like office, should raise a rate annually from the

inhabitants, not exceeding 350l. per annum, to pay the chaplains 100l. per annum, the schoolmaster and usher as before, which sums should be in lieu of all monies previously payable to them, and the residue of the monies to be applied towards the repairs of the church, and other matters concerning the administration of the church. The parish was discharged from all payment of tithes. By 56 Geo. 3. c. lv. the amount of this rate was altered, and the wardens, overseers of the poor, and other inhabitants were empowered to raise a rate; and all the sums collected under it were to be applied in paying to the two chaplains 3001. a year each, and to the schoolmaster and usher 30l., in lieu of all monies payable to them, by virtue of the grant, and the residue to the repairs of the church :Held, that this rate was the primary fund for the payment of these stipends, and not the funds in the hands of the wardens; and, therefore, that it was not a good return to a mandamus requiring the wardens, overseers, and inhabitants to make a rate for payment of these stipends, to state that they had always been paid by the wardens out of their revenues, and that when the writ came, the inhabitants resolved that a committee should be appointed to investigate the accounts of the wardens, and refused to make any rate.

Held also, that the making of the rate was not discretionary with the inhabitants; and that the mandamus was properly directed to the wardens, overseers, and inhabitants of the parish generally, and ought not to have been directed to the wardens, overseers, and six or seven past officers.

The Court ordered the defendants to pay the costs of the prosecutors.

Mandamus. The writ recited, that by an act of parliament passed in the 22 & 23 Car. 2, after providing that the manor of Paris Garden should be formed into a parish, to be called Christchurch, it was recited, that King James, by letters patent, granted in the ninth year of his reign the rectory and parsonage impropriate of the parish church of St. Saviour's, to certain persons in fee, in trust for the wardens of the said parish church, and their successors, enjoining them out of the revenue thereof to find and maintain two chaplains, a schoolmaster, and usher, for their free grammar school, and to repair their parish

church; to pay their chaplains 601. per annum, and their schoolmaster and usher 30. per annum. But the rectory only producing 100l. per annum, would not extend to repair the church, and allow a reasonable maintenance to the chaplains; it was therefore enacted, that the parishioners should thenceforth be discharged from the payment of all tithes for ever, and, in consideration thereof, that it should and might be lawful for the wardens and the overseers of the poor of the said parish, or the greater number of them, giving notice unto, or calling together six or more of the inhabitants as had, within the space of seven years last past, borne the like office therein, to assemble themselves yearly in the vestry-house,_upon every Tuesday or Wednesday in Easter week, and yearly for ever, then, or within fifteen days after, make a rate not exceeding 350l. a year, to be imposed on all the parishioners, by an equal pound rate, and the wardens were to pay to the two chaplains, the yearly sum of 100l., and the schoolmaster and usher 301., which sums should be in lieu of all monies to them respectively payable by virtue of the said letters patent; and all the residue of the monies so to be raised should be applied from time to time, for and towards the repairs of the church, and other matters concerning the administration of the church, as the wardens should conceive meet. The writ then recited, that by an act passed in the 56 Geo. 3. c. lv, so much of this act as respects the amount of the sum to be raised by rate, was repealed; and it was enacted, that it should and might be lawful for the wardens, overseers of the poor, and other inhabitants in vestry assembled, and they were empowered every year, upon notice thereof publicly given in the parish church, on the Sunday next before, to make an assessment upon all the occupiers of premises, or the landlords or owners thereof, at an equal pound rate, not exceeding 1s. in the pound, in every year, which rate should be confirmed and allowed by two Justices of the Peace for the county of Surrey; and all sums should be collected and paid by the collectors, to be applied by the wardens in paying by quarterly payments, yearly unto each of the two chaplains, the sum of 3001,

and to the schoolmaster and usher 30, in lieu of all monies to them respectively payable, by virtue of the said grant; and all the residue of the monies so to be raised should be applied towards the repairs of the parish church, and other matters concerning the administration of the said church, as the wardens should think proper. It was then further recited, that the salaries of the chaplains, schoolmaster, and usher, were in arrear, and also that the church was in a very dilapidated state, and required immediate repairs; that application had been made to the wardens, for payment of the salaries, which had been refused, and to the wardens, overseers, and inhabitants, to make a rate, which they had also refused. The writ commanded the wardens, overseers, and inhabitants to call a vestry, and make a rate according to the provisions of the two statutes before mentioned.

Two returns were filed. The first, by the wardens, overseers, and some of the inhabitants, stated, that by an act passed in the 32 Hen. 8, the parishioners of the parish were empowered every year to elect six or four persons to be their churchwardens, which should be a body corporate, and that the wardens were not able to pay the salaries, because they had no monies which had been collected under the acts referred to; that an application having been made to the wardens, overseers, and inhabitants to make a rate, they assembled in vestry, and proceeded to take the said application into consideration, and refused to make any rate, as they lawfully might; that after the serving of the writ, a vestry was held, when it was moved and seconded, that a rate of 6d. in the pound be then made, which was negatived; that a poll was demanded and taken, when 199 voted for the motion, and 300 against it, and no other rate was proposed; that the wardens, overseers, and inhabitants are only bound under the acts of parliament to make a rate when they think fit, and they did think fit to determine not to make any rate.

The second return was filed by certain other inhabitants, and stated that Henry VI. by letters patent, incorporated certain parishioners of St. Margaret, Southwark, to be wardens of a guild, who purchased