grounds of motion were relied upon: first, that judgment was entered more than a year and a day after the date of the warrant of attorney, without leave of the Court; secondly, that the defendant was dead before it was signed. The answer offered is, that the defeasance expressly renounced both objections.

As to the first objection, Morris v. Jones was cited. According to the report of that case, in 3 Dowling and Ryland, 605, Lord Tenterden said, "if the defendant thought proper to enter into a bargain that execution should issue upon the judgment, without a scire facias to revive it, he cannot afterwards be permitted to avoid the consequences, by setting up the illegality of the proceeding." In the report of the same case, in 2 Barnewall and Cresswell, 243, the language of the Court does not appear to have been so strong. The case of Jones v. Jones, *1 D. & R. 558, was also said to be applicable; but, in fact, that merely shewed that a third party could not object to the judgment being entered up too late.

*369]

We need not, however, discuss the first objection, as our decision will proceed upon the second, that arising from the party being dead. Although the defendant had waived this objection in his warrant of attorney, we think that the waiver is not binding upon his representatives, and still less on the Court. In 1 Tidd's Practice, page 551, 9th ed. 1828, ch. 21, it is said, "The death of either party is, generally speaking, a countermand of the warrant of attorney: And therefore, upon a motion to enter up judgment on an old warrant of attorney, if it appear to the courts, that either party is dead, they will not grant the motion." In the case of the death of the defendant, the exceptions to this rule was, formerly, that if the party died within a year after giving the warrant, the judgment might be entered up at any time before the commencement of the next term, so as to have reference to the first day of the term, in or (if the death took place in vacation) after which the death took place. (See Oades v. Woodward, 1 Salk. 87, S. C. 2 Ld. Raym. 766, 849.) There was one other instance of an exception, in Chancy v. Needham, 2 Str. 1081: there a motion to enter up judgment on an old warrant of attorney was made, after the death of the party, on the day of the death, upon an affidavit of the preceding day that the defendant was then alive; and the judgment was entered up accordingly. Af terwards, it was moved to set it aside; and the Court declared that, if it had then appeared that the man was dead, they would not have made the rule; but they applied the maxim fieri non debet, factum valet." "And

*370] thus," says Strange, who was the counsel making the second motion, they "suffered the deceit, which had been put upon them, to prevail ;" and he seems to have been not very unjustly displeased with the decision. The general rule is, that the warrant expires with the death of the party giving it. We think that this judgment was improperly entered up, and it must be set aside.

Rule absolute.

The KING against The Justices of CAMBRIDGE, and the Churchwardens and Overseers of the Poor of the Parish of ST. GILES, CAMBRIDGE. Tuesday, Nov. 25.

Parish officers cunnot abandon a poor's rate duly made, allowed, and published. Therefore, where an appeal had been entered against a poor rate, aud the parish officers served the appellant and the clerk of the peace with notice that the rate was abandoned, and before the sessions tendered to the appellant the amount of his assessment, which he had paid, and the sessions thereupon refused to hear the appeal, this Court granted a mandamus to enter continuances and hear the appeal.

But this Court refused to give costs, against the parish officers, of the application for a mandamus, and of the writ.

In this term, Gunning obtained a rule, calling on the justices of the peace for the town of Cambridge, and the churchwardens and overseers of the parish

of St. Giles in that town, to shew cause why a mandamus should not issue to the justices to enter continuances and hear the appeal of John Faulkner, against a rate made for the relief of the poor of the said parish on the 3d of July last, and allowed by two of the said justices on the 4th of that month. The rule also called upon the churchwardens and overseers to shew cause why they should not pay the said J. F. his costs of this application, and of the mandamus, if issued, and of all proceedings which might be had thereon.

It appeared that Faulkner, having, in September last, paid his assessment under the rate, which had been duly *made, allowed, and published, obtained a copy of the rate, and directed his attorney to appeal against [*371 it. Notice of appeal for the next general quarter sessions to be holden for the town of Cambridge was served on the parish officers, and other rated parties, on the 4th of October, counsel having been previously retained; and on the 7th, a copy of the notice was lodged with the clerk of the peace. Other prepa rations were also made by Faulkner for trying the appeal. On the 9th of October, the attorney for the parish officers served Faulkner's attorney with a notice, that they, finding that the rate could not be supported, had abandoned, and did thereby abandon the same; that Faulkner might receive back the money he had paid; that they did not intend to appear at the ses sions to defend the rate; and that a new rate would be forthwith made. This notice was dated on the 8th October, and signed by two churchwar dens and three overseers. The appellant's attorney, on being served with the notice, said that he should proceed with the appeal, unless the parish officers consented to quash the rate and pay Faulkner's costs. On the 9th of October the sum paid by Faulkner was tendered back to him on the part of the parish officers, and refused by him. At the sessions, holden on the 13th of October, before the deputy-recorder and other justices of the town, the appeal was called on; when the counsel for the parish officers objected that the Court had no jurisdiction, and the clerk of the peace produced a notice which he had received on the 8th of October from the parish officers, requiring him to forbear to receive or enter the appeal without the order of the court of quarter sessions, as they, the parish officers, intended to abandon the rate. The clerk of the peace also produced a letter received by him on the 11th of *October from the [*372 attorney of the parish officers, informing him that the rate had been actually abandoned by a majority of the parish officers on the 8th of October, and requiring as before. The appellant's counsel insisted that the rate ought to have been quashed, and applied to the Court for costs. The Court held that the parish officers had a right to abandon the rate, and had abandoned it, and that the Court had therefore no jurisdiction, and could not hear enough of the case to give them any power as to costs; and they added that, from the facts brought before them, if the Court could take into their consideration the subject of costs, they should not feel justified in awarding them to the appellant. The entry of the Court set out the several notices, and found that they were served as above, and concluded as follows: "It was ordered and adjudged that the churchwardens and overseers of the poor of the said parish of Saint Giles did, on the 8th day of October instant abandon the aforesaid rate or assessment for the relief of the poor, and that this Court has no jurisdiction to hear and determine such appeal."

Sir James Scarlett, and W. H. Watson, now shewed cause. Here is no grievance requiring the remedy of a mandamus, the parish officers having abandoned the rate, and the appellant having preserved after notice of abandonment. The officers could not be bound to support the rate: after the abandonment they would have been liable to an action if they had distrained. It is true, that no instance of an abandonment of a rate appears to have come before this Court; but such cases must be of frequent occurrence. They are analogous to cases of abandonment of an order of removal: *and it has been held, that parish officers may abandon such orders; Rex v. The Justices

[*373

of Norfolk, 5 B. & Ald. 484; Rex v. Llanrhydd, 3 Burr. S. C. 658, S. C. 2 Bott, 711, pl. 893, 6th ed; Rex v. Diddlebury, 12 East, 359. 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.

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 whe have made it, as was done in Rex v. The Justices of Norfolk, 5 B. &. Ald. 484; 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 *374] appear in support 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, 4 D. & Ryl, 445, shews that the sessions had jurisdiction, were it only for the purpose of awarding the costs of 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. rule must be made absolute without costs.

TAUNTON, PATTESON, and WILLIAMS Js.,, concurred.

The

Rule absolute, without costs.

*375]

*THE KING against PEREIRA. Tuesday, Nov. 25.

An information charged that defendant, not being a subject of his Majesty, was, on the 28th of October, 1834, found on board a vessel within a port of the United Kingdom, and within one league of the coast of the United Kingdom, such vessel being liable to forfeiture under an act relating to the customs: Held, that a conviction for a pecuniary penalty on this information was bad; st. 3 & 4 W. 4, c. 53, s. 48, not having made it an offence, in a foreigner, to be on board such vessel within any port besides those of the Isle of Man; and the offence, created by the 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).

BUTT, had obtained a rule in this term, calling on the solicitor of his Ma

jesty's Customs to show cause why a writ of habeas corpus should not issue to the 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 to say, on the 28th October, 1834, not being a subject of his Majesty, was found at the parish of Charles, in the borough 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 or 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 *under their warrant, for non-payment of that penalty, to Exeter gaol. (a)

[*376 Sir John Campbell, Attorney-General, and Dundas, now showed cause. The third'section of st. 3 & 4 W. 4, c. 53,(6) 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 being [*377 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.(c) But the second section of

(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-eigth section enacts, "That every person, being a subject of his Majesty, who shall be found or discovered to have been on board any vessel 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 1007.; 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 creek 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.

(c) 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

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 *preceding act *378] relating to the customs, for being found to have been within any of the distances mentioned in 3 & 4 W. 4, c. 53, having on board, &c. So that this second section does not touch the offence of being found on board the vessel within a port, and such an offence is clearly distinguished from that of being found within the specified distance from the coast. It follows, therefore, that the latter act repeals the former one, so far only as relates to the pecuniary penalty inflicted for being on board the vessel within the specified distance, which is only one of the offences laid in the present information. Then it will be contended that the forty-eighth section of st. 3 & 4 W. 4, c. 53, though repealed as to one offence only, does not touch the other; for that the words in that section, "bay, harbour, river, or creek of the said island," refer to the Isle of Man. But, by reference to the third section of the same act, it appears that the offence which subjects the vessel to forfeiture is the being within any port, harbour, river, or creek of the United Kingdom. The clause of sect. 48 creating the offence of being on board the vessel which is liable to forfeiture for any of the causes aforesaid, must necessarily be interpreted by the preceding clause creating the liability to forfeiture, and specifying the causes. And, in the earlier part of the 48th section, the offence, as to subjects of his Majesty, is generally described so as to comprehend the being on board within the ports of the United Kingdom; and it cannot be supposed that, in this particular, the legislature meant to distinguish between those who were subjects and those who were not. If this construction be not supported, there will be no punishment laid upon a foreigner for being within a port of the United Kingdom on board a vessel

liable to forfeiture. The clause *relating to the ports was first intro*379] duced in st. 3 & 4 W. 4, c. 53; the statute 6 G. 4, c. 108, s. 49, contains enactments only as to being within particular distances from the coast. (a) It was, therefore, intended to make the being on board within the port a substantive offence. The 48th section may be interpreted as if the word "or" were introduced after the words "causes aforesaid," which latter words relate only to the liability of the vessel to forfeiture: and this liability is not disputed. Then the being on board such vessel will be a substantive offence; and the words following will relate only to different species of the same offence.

Butt, contrà. The offences created by the 48th section of the st. 3 & 4 W. 4, c. 53, as to a person not a subject of his majesty, are, first, the being on board within one league of the coast of the United Kingdom or of the Isle of

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.)

(a) In the case of subjects. But in the case of persons not subjects, that section makes it penal to be found to have on board, &c., within any bay, harbour, river, or creek of the Isle of Man. The enactment is copied verbatim in the latter part of sect. 48, of 3 & 4 W. 4, c. 53.

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