put on the rate, which was done, and the rate was paid by defendant and his father jointly. In an action for a penalty for acting as vestryman without being qualified;

Held (affirming the judgment of Manisty, J.) that defendant was not qualified when he acted, and was not to be deemed to have been rated under

19 & 20 Vict. c. 112, s. 4; that the decision of the inspectors that he was duly elected was not final, and therefore that defendant was liable to the penalty.

APPEAL by the defendant from the judgment of Manisty, J. in an action in the Common Pleas Division.

The action was brought under 18 & 19 Vict. c. 120, s. 54, to recover a penalty from the defendant for having acted as a member of the vestry of the parish of Rotherhithe without being qualified by rating and occupation as required by that Act.

The defendant and his father and brother became, in the year 1874, joint occupiers of certain premises in the parish, where they carried on business in partnership in the name of Williams and Son. The value of the premises was sufficient to qualify both the defendant and his father as joint occupiers under 18 & 19 Vict. c. 120, s. 6.

On the 11th of April a rate was made on the defendant's father, the defendant's name not being then on the rate. Afterwards the defendant wrote to the churchwardens and overseers of the parish, requesting that his name should be placed upon the rate book as partr er in the firm of Williams and Son.

On the 16th of May he was elected a member of the vestry. He was objected to, and the inspectors decided that he was duly qualified, and, on 17th May, made a return declaring him elected. In the same month (May) a demand of the rate was made on the defendant's father only. On the 6th June the defendant sat and voted as a member of the vestry. The defendant wrote to the churchwardens on the 5th July, and again on the 26th July, requiring the demand note to be altered. It was altered by the insertion of the words "and Son ;" and in October the rate was paid by the defendant and his father jointly. The learned judge decided that the defendant was not qualified, under 18 & 19 Vict. c. 120, s. 6, to act as a vestryman, and was therefore liable to the penalty under sect. 54, and gave judgment for the plaintiff. The defendant appealed.

The following are the statutory provisions on which the decision of the case turned:-18 & 19 Vict. c. 120 (an Act for the better local management of the Metropolis), s. 6 :

The vestry elected under this Act in any parish shall consist of persons rated or assessed to the relief of the poor upon a rental of not less than 401. per annum; and no person shall be capable of acting or being elected as one of such vestry for any parish unless he be the occupier of a house, lands, tenements, or hereditaments in such parish, and be rated or assessed as aforesaid upon such rental as aforesaid within such parish. Provided always, that in any parish in which the number of poorrate assessments at 401. or upwards does not exceed one-sixth of the whole number of such assessments, it shall not be necessary, in order to qualify a person to be a vestryman, that the amount of rental upon which he is rated or assessed as aforesaid exceed 251. Provided also that the joint occupation of any such premises as aforesaid, and a joint rating in respect thereof, shall be suffi cient to qualify each joint occupier in case the amount of rental on which all such occupiers are jointly rated will, when divided by the number of occupiers, give for each

[CT. OF APP.

On the day of election of vestrymen and auditors in any parish under this Act the parishioners then rated to the relief of the poor in the parish, or, where the parish is divided into wards under this Act, in the ward thereof for which the election is holden, and who are desirous of voting, shall meet at the place appointed for such election, and shall then and there nominate two ratepayers of the parish, or (if the parish be divided into wards) of the ward for which the election is holden, as fit and proper persons to be inspectors of votes; and the churchwardens, or, in the case of a ward election, such one of the churchwardens as is present thereat, or, where one of the churchwardens is not present, the person appointed by them to preside thereat, shall immediately after such nomination as aforesaid by the parishioners nominate two other such ratepayers to be such inspectors; and, after such nominations, the said parishioners shall elect such persons duly qualified as may be there proposed for the offices of vestrymen and auditors or auditor; and the chairman at such meeting shall declare the names of the parishioners who have been elected by a majority of votes at such meeting. Sect. 17:

Provided always that any five ratepayers may then and there, in writing or otherwise, demand a poll, which shall be taken by ballot.

Sect. 18:

The inspectors for the parish or ward (as the case may be) shall forthwith meet together, and proceed to examine the said votes; and, if necessary, shall continue the examination by adjournments from day to day, not exceeding two days (Sunday excepted) until they have decided upon the persons duly qualified according to the provisions of this Act who may have been chosen to fill the aforesaid offices.

Sect. 19:

In case an equality of votes appear to the aforesaid inspectors to be given for any two or more persons to fill either of the said offices, the inspectors shall decide by lot upon the person to be chosen.

Sect. 22:

The inspectors shall, immediately after they have decided upon whom the aforesaid elections have fallen, deliver to the churchwardens, or to one of them, or other the person presiding at the election, a list of the persons chosen by the parishioners to act as vestrymen and the said list, or a copy thereof, shall be published in the parish as herein provided.

Sect. 54:

Any person who acts as a member of any such vestry as aforesaid, without being qualified by rating and occupation as required by this Act, shall for every such offence be liable to a penalty of 501., which may be recovered by any person who may sue for the same in any of the superior courts of law, with full costs of suit...

19 & 20 Vict. c 112 (an Act to amend the lastmentioned Act), sect. 4:

It shall be lawful for any person occupying any tenement within any parish to claim to be rated to the relief of the poor in respect thereof in the rate for the time being, and in all rates to be thereafter made in respect of such tenement, whether the landlord be or be not liable to be rated to the relief of the poor in respect thereof; and upon such occupier so claiming by notice in writing left at the office or place of residence of the overseers of the poor of the parish, or one of them, and actually paying or tendering at such office or place of residence the full amount of the last-made rate then payable in respect of such premises, such overseers are hereby required to put the name of such occupier on the rate for the time being, and also, without further claim, to

CT. OF APP.]

put his name upon every subsequent rate made during the time such occupier continues in the occupation of the same premises; and, in case the said overseers neglect or refuse so to do, such occupier shall nevertheless for the purposes of the said Act be deemed to have been rated to the said rate in respect of such premises from the period at which the rate for the time being in respect of which he so claimed to be rated as aforesaid was made, and thenceforth so long as he continues in the occupation of the same premises, provided always that every person so claiming as aforesaid shall in respect of every rate for the relief of the poor made after such claim as aforesaid, while he continues to occupy the same premises, be liable to the same extent and in the same manner as if his name had been put on such rate.

Philbrick. Q.C. and J. R. Wright for the defendant. The defendant is not liable to the penalty, for he was qualified by assessment. Even if he was not in fact rated or assessed within the meaning of 18 & 19 Vict. c. 120, s. 6, he was entitled to be deemed to have been rated by 19 & 20 Vict. c. 112, s. 4, and therefore this latter section has the effect of exempting him from liability to the penalty. Further the inspectors of votes are to decide on the qualification of candidates by 18 & 19 Vict. c. 120, s. 18. They have given their decision in favour of the defendant, and that decision is final, and cannot be questioned in this action. They cited

Reg. v. Inhabitants of Hulme, 4 Q. B. 538;

Moss v.Overseers of St. Michael, Lichfield, 7 M. & G. 72;
Ex parte Ross; re The Vestry of St. Pancras, 26
L. J. 312, Q. B.

Joseph Brown, Q.C. for the plaintiff.-The defendant is liable under 18 & 19 Vict. c. 120, s. 54. There is no mention of assessment in that section, and assessed in sect. 6 only means the same as rated. There is nothing in the Act to give power to the inspectors to pronounce a final judgment on the question of qualification. It can never have been the intention of the Legislature that a person who had once incurred a penalty by voting when he was not qualified should be able to get rid of that liability by anything that he might do afterwards.

Philbrick, Q.C. in reply.

BRAMWELL, L. J.-I am of opinion that this judgment ought to be affirmed. I think it is clear that the defendant was neither rated nor assessed to the relief of the poor when he acted as vestryman, and therefore was not capable of acting or of being elected. It seems to me that it is immaterial whether there is any difference between rating and assessing or not, but I think there is none. The words of the penalty clause (18 & 19 Vict. c. 120, s. 54) are remarkable. They are these: "Any person who acts as a member of any such vestry as aforesaid without being qualified by rating and occupation as required by this Act shall for every such offence be liable," &c. One might infer from these words that a person acting without election, if he were duly qualified by rating and occupation, would be exempt from the penalty; but it seems that the defendant was not properly elected, because he was not qualified by rating and occupation when he acted as a vestryman. Then

it is said that by sect. 4 of 19 & 20 Vict. c. 112 the defendant may be deemed to have been rated for the purposes of the earlier Act (18 & 19 Vict. c. 120), and that if the events there mentioned took place after the defendant had been elected, after he had acted, and after the action had been brought-if he then did what is provided by sect. 4, he procured a pardon. I am not sure that the

[CT. OF APP. section means that the rate must actually be paid or tendered at the office of the overseer at the exact time of making the claim; but it is not necessary to decide this. Suppose the name of the occupier were put on the rate, no consequence is stated as following from his name being put on; and unless we are to suppose that he was to have some extra benefit from the overseers not doing their duty, he would only be in the same position, if he had done what is required by the section, and his name had not been put on the rate, as he would have been in if they had put his name on. If we look at the words of the different sections the defendant is liable to a penalty after he acts, and the clause in sect. 4 is not retrospective, but only enabling. Then, as to the other point, it is contended that the decision of the inspectors was final; but I cannot think it was. Whether they have power to inquire into the matter of qualification at all or not, I do not decide: but I am satisfied that their decision is not final. Their decision would only come in where there is a demand for a poll. By the words of sect. 16 it is manifest that there is no judgment without appeal to be given by them. There is no provision as to how the inspectors are to get information and adjudicate. The words of sect. 15 almost negative the contention put forward on behalf of the defendart. I think the judgment is right, and it ought to be affirmed.

BRETT, L.J.—It seems to me that the question as to the construction of 18 & 19 Vict. c. 120, s. 54, is the principal question in this case, and I think the proper construction is, that if the person who acts as vestryman is not qualified at the time when he acts the penalty arises. But it is said that the defendant was qualified because he was assessed, and that raises the question whether the word "rated" and the word "assessed" in sect. 6 are different from one another in their meaning. The word "assessed" is left out in sect. 54, which is a strong circumstance to show that the two words mean the same in sect. 6. But this defendant was never assessed, because his name was never brought before the overseers. The only persons who can assess are the overseers, and therefore he was not, in fact, qualified. But it is said that he may be deemed to have been qualified, and this depends upon the meaning of sect. 4 of the second Act (19 & 20 Vict. c. 112). I should be sorry to doubt that it is sufficient if a person claims to be rated, and afterwards tenders or pays the rate, or to suggest that this would not be within the section. But, assuming that payment or tender at a different time from the time when the claim is made is within sect. 4, a person is not in a position equivalent to being rated before he has either paid or tendered the amount of the rate. Under the Registration Acts the time fixed is the 31st July, and the question is whether the person claiming to be entitled to vote is qualified at that date. The inquiry usually takes place in September or October, but it has never been suggested that a claim and payment after the 31st July would show that the person claiming was properly qualified. A claim made before acting, followed by a payment made after acting, does not qualify, and therefore the defendant in the present case was not duly qualified, nor is he to be deemed to have been qualified at the time when he acted as vestryman. The question then remains

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