KING'S BENCH DIVISION. Monday, Dec. 21, 1903. (Before Lord ALVERSTONE, C.J., LAWRANCE and KENNEDY, JJ.) Ex parte WILES. (a) Rating-Poor rate-Application for distress warrant-Tender of part of rate-Jurisdiction of justices to issue distress warrant for whole rate-Jurisdiction to issue warrant of commitment for whole rate-Distress for Rates Act, 1849 (12 & 13 Vict. c. 14), ss. 1, 2. Where upon a summons for a distress warrant for a poor rate the person liable to pay the same tenders a part of the rate in Court before the justices, the justices have, notwithstanding such tender in Court, jurisdiction to issue a distress warrant for the whole amount of the rate, and, in default of sufficient distress to satisfy the whole amount, to issue a warrant of commitment in respect of the whole amount, notwithstanding a subsequent tender of part. Rex v. Gillespie and others (ante, p. 15; (1904) 1 K. B. 174) explained. MOTION for a rule misi for a writ of certiorari to bring up and quash an order of committal whereby the applicant, one Samuel Wiles, was committed to prison for the space of twenty-one days in default of payment of a certain poor rate, and in default of a sufficient distress to satisfy the same; and also for a writ of habeas corpus to bring up the applicant from Wandsworth Prison, where he was imprisoned. The affidavit of the applicant for the rules-Samuel Wiles, a tailor and outfitter residing at New Malden, Surrey-set out the following facts upon which the application was made: A poor rate of 35s. was duly made upon the appellant, and demanded of him. On the ground of religious conviction he refused to pay that part of the poor rate-namely, 5s.—which would be appropriated to sectarian religious instruction under the Education Act, 1903. On three distinct occasions he had tendered the whole of the rate, except the 5s., which, as he believed, represented the education rate, and when the demand note was delivered he tendered 30s. (being the whole amount, less the 58.) to the rate collector in cash, and this tender was (a) Reported by W. W. ORR, Esq., Barrister-at-Law. refused, and he said that there were more than sufficient goods of his at his house to answer the rate and costs. Ex parte 1903. peace-Jurisdiction On the 22nd day of September, 1903, he appeared before the justices at Kingston-on-Thames to answer a summons for nonpayment of the rate, together with 3s. 6d. for costs. He then Justice of the told the justices that he was willing to pay the rate, except the 58., which he declined to pay, as it represented that part of the rate which would be applied to sectarian religious teaching. He had the 30s. in his hand and tendered the same in Court, but this tender was refused, and the justices issued a distress warrant for the whole amount and costs. The warrant officer called several times subsequent to this and asked him to pay the rate. He told the officer that he was willing to pay what he had already offered, and that if the officer was not satisfied with that he must levy for the amount. The officer looked round the premises, and the applicant informed him that he could take certain articles which he pointed out, and which he valued at about 107. When the bailiffs went to distrain, the applicant again tendered the 30s., which they refused; and in their return to the distress warrant they reported to the justices that there was no sufficient distress to satisfy the whole amount of the rate and costs. An application was then made to the justices under the Distress for Rates Act, 1849 (12 & 13 Vict. c. 14), s. 2, alleging that the applicant had not paid the rate or any part thereof, and had refused so to do, and the justices thereupon made an order of commitment whereby the applicant was to be committed to prison for the space of twenty-one days, unless the above sum and all costs and charges should be sooner paid. Under this warrant of commitment the applicant was arrested on the 17th day of December, and was conveyed to Wandsworth Prison, and he was still in prison at the date of this application. There was no question that there was ample distress for the 5s., though there was a question as to whether there was sufficient distress for the whole 35s. J. A. Compston for the applicant.-The present motion is for a writ of certiorari to test the legality of the action of the justices in issuing a committal warrant by which the applicant was sent to prison for twenty-one days for nonpayment of the poor rate of 35s., he having tendered 30s., part thereof, on several occasions prior to the issue of the committal warrant, including a tender to the justices in Court when the distress warrant was issued. The justices had no jurisdiction to issue the distress warrant for the whole amount of the rate. justices are only empowered to issue a warrant of distress for the whole amount if the whole rate is in arrear and is unpaid, and there has been a refusal to pay any part thereof. Here the applicant tendered the greater part of the rate in cash before the justices in Court, and it is in evidence that the applicant The Distress for poor rate Tender of part of rateDistress for whole rate- -Distress for ss. 1, 2. Ex parte 1903. peace-Jurisdiction Distress for poor rateTender of part of rate Distress for whole rate Warrant of commitment -Distress for Vict. c. 14, ss. 1, 2. had sufficient goods on his premises to meet the distress, and unquestionably to meet the distress after taking into account the 30s. tendered. According to the recent decision of this Court in Rex v. Gillespie and others (ante, p. 15; (1904) 1 K. B. Justice of the 174), the justices ought not to have issued a distress warrant for the whole amount of the rate, but ought to have issued it for the balance only. But even if the justices were right in issuing the distress warrant for the full amount, they were not justified in issuing the warrant of commitment for the full amount. The warrant of commitment is therefore bad. The applicant is also entitled to a writ of habeas corpus. If the rules are granted, they ought to be made returnable before the Vacation judge. Lord ALVERSTONE, C.J.-We are clearly of opinion that there Rates Act, ought to be no rule in this case. The present application has no 1849-12&13 doubt arisen from a misunderstanding of the decision of this Court in the recent case of Rex v. Gillespie and others (ubi sup.). In that case a part of the rate had been tendered in Court before the magistrate, and this Court held that the magistrate had a discretion to issue the distress warrant for the balance only, and that where a part of the rate had been tendered before him in Court this Court could not by mandamus compel him to issue a distress warrant for the whole amount. In this case the magistrates had issued, first, a distress warrant for the full amount and then a commitment order for the full amount, and in so doing they had acted within their jurisdiction and within their rights. We are now asked to say that, because the applicant had tendered part of the rate in Court before the magistrates, the magistrates had no jurisdiction to issue a warrant for the full amount. We think that is not so, and that the magistrates had jurisdiction to issue the distress warrant for the whole amount. We are of opinion that the magistrates had jurisdiction to do what they did, and that there should be no rule. LAWRANCE and KENNEDY, JJ. concurred. Rule refused. Solicitors for the applicant, C. and E. Woodroffe. KING'S BENCH DIVISION. Friday, February 5, 1904. (Before Lord ALVERSTONE C.J., WILLS and KENNEDY, JJ.) BAGG (app.) v. COLQUHOUN (resp.). (a) Justice of the peace-Practice-Justices divided in opinionAdjournment Case reheard by further justices—Jurisdiction. An information having been heard before two justices they retired to consider their decision. Upon their return to Court they announced that they were divided in opinion, and they decided to adjourn the hearing to a future day to be heard before themselves and other justices. Held, that the intimation that they were divided in opinion did not preclude the justices from adjourning the hearing of the information. CASE ASE stated by five justices on an information preferred by the respondent against the appellant under the Licensing Acts, 1872-74, for selling and exposing for sale intoxicating liquor during the time that the premises were directed to be closed. The information first came on for hearing on Tuesday, the 18th day of August, 1903, before two of the before-mentioned five justices, and, after hearing the whole of the evidence in examination and cross-examination then adduced on behalf of the respondent and appellant respectively, the two justices retired to consider their decision, and upon their return they announced in open court that they were divided in opinion. Whereupon the solicitor appearing for the appellant asked that the information should be dismissed, but the two justices decided that a more satisfactory decision could only be arrived at upon rehearing with other of their fellow-justices, and they agreed to adjourn the information to a future day, when they and other justices on the rota for that day would be convened to rehear the information. In reply to the solicitor for the appellant, who asked whether they were unanimous in agreeing to the adjournment, they stated that they were. The information again came on for hearing on Tuesday, the 15th day of September, 1903, when the two justices who had (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law. BAGG υ. COLQUHOUN. 1904. Justice of the peace Practice Division of previously heard the information and failed to arrive at a satisfactory decision and three other justices who were on the rota for that day were present, and the information was heard and determined, and the appellant was convicted of the offence. When the information was called on for hearing on the 15th day of September, counsel who appeared for the appellants objected to the jurisdiction of the justices then present to rehear the information, as it had been heard and determined by the opinionAdjournment two justices on the 18th day of August last, and that, as the -Rehearing. two justices could not agree, and as the information was a criminal information upon which the defendant and present appellant could have been fined on conviction and in default of distress could have been imprisoned, they could not or should not have adjourned the information, but should then have dismissed it, and he cited in support of this contention the following cases: Reg. v. Ashplant (52 J. P. 474) and Kinnis v. Graves (78 L. T. Rep. 502). The solicitor who appeared for the appellant replied on the point of law, and contended that, although it was a criminal information, it was competent for the two justices who were divided in opinion to adjourn the hearing to a future date, when the information could be reheard by them and any other justices then present, and that no decision or determination was come to by the two justices when they agreed to adjourn the information, and in support of his contention he cited the following cases: Reg. v. Ashplant (52 J. P. 474) and Ex parte Evans (58 J. P. 260). The five justices determined that they had power to rehear the information, and counsel who appeared for the appellant thereupon asked them to state a case and adjourn further proceedings sine die until such case was disposed of, but they refused to do so and determined to hear the evidence, whereupon counsel who appeared for the appellant, not consenting to the exercise of their jurisdiction, retired from the case, and the respondent called and examined one witness, who was not crossexamined by the appellant's counsel, and the justices convicted the appellant as before-mentioned. After the appellant had been convicted, counsel for the appellant again applied to the justices to state a case, which they agreed to do. The justices were of opinion that although the information was a criminal one, punishable after conviction by fine or imprisonment, they had a right to rehear the information; that the two justices who had previously heard it had not determined the matter of the information, but had agreed to adjourn the same for rehearing before themselves and others of their brother justices so that a more satisfactory determination could be arrived at; and that, as the evidence given on behalf of the respondent was not disputed, they decided that the appellant was guilty of the offence with which he was charged, and so they convicted him accordingly. |