and it has been held, that parish officers may abandon such orders; Rex v. The Justices of Norfolk (a); Rex v. Llanrhydd (b); Rex v. Diddlebury (c). As to any argument which may be drawn from the claim of the appellant to the costs at sessions, it is not to be assumed that the sessions would have given him costs if they had heard the appeal. From what passed on the last occasion, it is probable that they would not. And, as to the costs of this application, there is no pretence for claiming them against the parish officers, even on the supposition that there has been an omission of duty on the part of the magistrates. This case would, on such a supposition, be like that of a reversal on error. 1834. The KING against The Justices of CAMBRIDGE. Sir John Campbell, Attorney-General, and Gunning, in support of the rule. All that the appellant asks is, that he may be heard against the rate, which stands valid until it be quashed. There is no analogy in this respect between a rate and an order of removal: the latter may be superseded, with consent of parties, by the justices who have made it, as was done in Rex v. The Justices of Norfolk (a); but a rate, under the provisions of st. 43 Eliz. c. 2. s. 1., and st. 17 G. 2. c. 3. s. 1., derives its validity from being first made by the parish officers, then allowed by the justices, and then published in the church; after which the appeal cannot be made without notice to the parish officers and parties interested; st. 41 G. 3. c. 23. ss. 4 and 6. And the latter parties cannot be concluded by the act of the parish officers, but are entitled to appear in support (a) 5 B. & Ald. 484. S. C. 2 Bott, 711. pl. 893. 6th ed. (c) 12 East, 359. Bb 3 of 1834. The KING The Justices of of the rate. In many instances the fellow parishioners of the appellant are interested in supporting the rate, as where the objection to it is that they are underrated. Under st. 2 W. 4. c. 45. s. 27., the elective franchise of an occupier may depend upon his being rated, and having paid the rate. With respect to the costs, the decision of the justices has prevented the appellant from making his application for the costs to them; and it is not to be presumed that their judgment on this question would have been against him, if he had been heard upon it. Rex v. Cawston (a) shews that the sessions had jurisdiction, were it only for the purpose of awarding the costs of the appeal to the appellant. The costs, however, which are now asked for, are merely the costs of the present application, and of the writ of mandamus. The Court has a discretion as to such costs by st. 1 W. 4. c. 21. s. 6., and this seems to be a fit occasion for the exercise of the power in favour of the party applying for the mandamus; since the parish officers have rendered the application necessary, by first making a rate which they cannot support, and afterwards preventing the Court from hearing the appeal. Lord DENMAN C. J. We feel no doubt as to the costs. We cannot give them in a case like the present. The justices were not right in their judgment, for they certainly had a jurisdiction; and the rate exists at this moment. The rule must be made absolute without costs. TAUNTON, PATTESON, and WILLIAMS Js. concurred. (a) 4 D. & Ryl. 445. 1834. The KING against PEREIRA. Tuesday, An information defendant, not charged that being a subject was, on the 28th of October 1834, found on board a vessel within a port of the United Kingdom, and league of the within one coast of the to United King of dom, such vessel being feiture under an act relating to the customs: Held, that a conviction for a BUTT had obtained a rule in this term, calling on the solicitor of his Majesty's Customs to shew cause why a writ of habeas corpus should not issue to the of his Majesty, keeper of the common gaol at Exeter, to bring up the defendant. By the affidavits, it appeared that the defendant had been carried, on the 3d November 1834, before two justices of the borough of Plymouth, upon the information of an officer of the customs, charging that he, within six months then last past, that is say, on the 28th October 1834, not being a subject his Majesty, was found at the parish of Charles, in the liable to forborough of Plymouth, in the county &c., on board a certain vessel within a port of the United Kingdom, and within one league of the coast of the United Kingdom, then and there liable to forfeiture under the provisions of a certain act of parliament relating to the customs; for that the said vessel was on &c., found at the parish &c., and within the port of Plymouth, being a port of the United Kingdom, and within one league of the coast of the United Kingdom, and not being driven thereinto by stress of weather or unavoidable accident, then and there having on board divers, to wit, 107 pounds weight of tobacco, not being in a cask package containing 450 pounds weight at least, contrary to the form &c. The justices adjudged the defendant to have forfeited 1007.; and he was committed or pecuniary penalty on this information was bad; st. 3 & 4 w. 4. c. 53. having made s. 48. not it an offence, in a foreigner, to be on board such vessel within any port besides those of the Isle of Man; created by the and the offence, same section, of being on board such vessel within one league of the coast of the United Kingdom, having been done away with, so far as relates to the pecuniary penalty, by st. 4 & 5 W. 4. c. 13. (22d of May 1834). 1834. The KING against PEREIRA. under their warrant, for nonpayment of that penalty, to Exeter gaol (a). Sir John Campbell, Attorney-General, and Dundas now shewed cause. The third section of st. 3 & 4 W. 4. c. 53. (b) directs that any vessel shall be forfeited which shall be discovered within any port of the United Kingdom having on board tobacco not being in a cask or package containing 450 pounds weight at least. Then sect. 48. enacts, that every person not (a) The affidavits also set forth, as is directed by the ninetieth section of st. 3 & 4 W. 4. c. 53., the grounds of objection to the proceedings, which, being the same insisted upon in the argument, are not here given. (b) The third section of st. 3 & 4 W. 4. c. 53. enacts, "That if any vessel or boat whatsoever shall arrive, or shall be found or discovered to have been within any port, harbour, river, or creek of the United Kingdom, not being driven thereinto by stress of weather or other unavoidable accident, having on board or in any manner attached thereto, &c. any spirits not being in a cask or package containing &c., or any tobacco or snuff not being in a cask or package containing 450 pounds weight at least, &c., every such vessel or boat, together with such spirits or tobacco or snuff, shall be forfeited." The forty-eighth section enacts, "That every person, being a subject of his Majesty, who shall be found or discovered to have been on board any vessel or boat liable to forfeiture under this or any other act relating to the customs for being found or discovered to have been within any of the distances, ports, or places in this act mentioned, from or in the United Kingdom, or from or in the Isle of Man, having on board or in any manner attached thereto, or having had on board or in any manner attached thereto, or conveying or having conveyed in any manner, such goods or things as subject such vessel or boat to forfeiture, or who shall be found or discovered to have been, within any such distance as aforesaid, on board any vessel or boat from which any part of the cargo or lading of such vessel or boat shall have been thrown overboard, or staved or destroyed, to prevent seizure, shall forfeit the sum of 100%.; and that every person, not being a subject of his Majesty, who shall be found or discovered to have been on board any vessel or boat liable to forfeiture for any of the causes aforesaid, within one league of the coast of the United Kingdom or of the Isle of Man, or within any bay, harbour, river, or ereck of the said island, shall forfeit for such offence the sum of 100%." The eighty-fifth section gives jurisdiction to two justices to convict and levy the penalty, or commit the offender, &c., in default of payment. being a subject of his Majesty, who shall be found to have been on board any vessel liable to forfeiture for any of the causes aforesaid, within one league of the coast of the United Kingdom, or of the Isle of Man, or within any harbour of the said island, shall forfeit 1007. Sect. 85. gives to two justices the power of convicting, and of committing in default of payment of the forfeiture. But it will be contended, on the other side, that this clause is repealed by st. 4 & 5 W. 4. c. 13. s. 1., so far as regards the infliction of pecuniary penalties for the offences in that act afterwards next mentioned (a). But the second section of that statute enacts only that every person not being a subject of his Majesty, found to have been on board any vessel liable to forfeiture for any of the causes aforesaid, within one league of the United Kingdom or the Isle of Man, shall be liable to imprisonment; and the "causes aforesaid," by the earlier part of the section, include all causes of forfeiture under any (a) The first section of stat. 4 & 5 W. 4. c. 13. enacts, "That from and after the passing of this act [22d May 1834] so much of the said act [3 & 4 W. 4. c. 53.] as.... .. imposes certain pecuniary penalties for any of the offences hereinafter next mentioned, shall be and the same is hereby repealed." ... The second section of the same statute enacts, "That every person, being a subject of his Majesty, who shall be found or discovered to have been on board any vessel or boat liable to forfeiture under the said or any other act relating to the customs for being found or discovered to have been within any of the distances in the said act mentioned from the United Kingdom or from the Isle of Man, having on board or in any manner attached thereto, or conveying or having conveyed in any manner, such goods or things as subject such vessel or boat to forfeiture. . . . and every person, not being a subject of his Majesty, who shall be found or discovered to have been on board any vessel or boat liable to forfeiture for any of the causes aforesaid, within one league of the United Kingdom or of the Isle of Man; and that all persons who are assembled, &c. shall, upon being duly convicted of any of the said offences before any two justices of the peace, be adjudged by such justices," &c. (stating the respective punishments, by imprisonment and hard labour, for a first, second, and third offence). 1834. The KING against PEREIRA. preceding |