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CHURCH RATE.

Rate by whom made.] Rates for the reparation of the church are to be made by the churchwardens, together with the parishioners assembled, upon public notice given in the church.* The specific purpose of the meeting should be stated in the notice. (58 Geo. 3, c. 69.)

"The major part of them that appear at the meeting shall bind the parish, or, if none appear, the churchwardens alone may make the rate, because they, and not the parishioners, are to be cited and punished for defect of repairs.

"And if a rate be illegally imposed by a commission from the bishop, which he has no authority to direct, (Gibs. 196, 1 Bac. Abr. 373,) or otherwise, without the parishioners' consent, yet if it be afterwards assented to, and confirmed by the major part of the parishioners, that will make it good. (Wats. c. 39.)

"Mandamus to make a Rate.] The court of queen's bench will not grant a mandamus to churchwardens to compel them to make a church rate, it being a subject purely of ecclesiastical jurisdiction. (Rex v. Thetford, 5 T. R. 361.) Yet it lies to the churchwardens of two united parishes, under stat. 10, Ann, c. 11, to assemble a meeting pursuant to s. 24, for the purpose of ascertaining and agreeing whether it be fit that a rate should be made. (Rex. v. St. John and St. Margaret, 4 Mau. and Sel. 250.)

“Rate when to be made.] The rate should be made before the expense is incurred, because the propriety and extent of the repairs should be determined before they are undertaken. And no church rate can be legally made for the reimbursement of a churchwarden, because that would be to shift the burthen from the parishioners at the time, to future parishioners. (R. v. Chapelwardens of Bradford, 12 East, 556; Dawson v. Wilkinson, Rep. temp. Hardw. 381, Andrews, R. 11.) And the circumstance of the repairs being authorized by a vestry meeting, does not absolve churchwardens from the consequences of neglecting to make a prospective rate to discharge the expense; and although where the parishioners who attended such vestry signed the resolutions for the repairs, it was held, that would not make them individually liable, as they merely acted in their character of vestrymen, without any intention to render themselves personally liable, or separately from the rest of the parishioners. (Lanchester v. Tricker, 1 Bing. 201, 8 Moore, 20.) And although one who attended, and signed afterwards, directed the mode in which certain parts of the repairs should be effected, this was held not sufficient to imply a contract by him. (Lanchester v. Frewer, 9 Moore, 688, 2 Bing. 361.) And a bill filed by the churchwarden, praying that an account might be taken of all sums paid by him, and to which he had become liable for the repairs, and that a vestry might be called to make a rate for the payment thereof, was dismissed with costs ; because it was not a prospective rate, and a court of equity will not decree a rate to be made to reimburse a former churchwarden monies laid out, whilst in office, in pursuance of a vestry order. (Lanchester v.

* On the church door.

Tricker and Ors. 5 Madd. R. 4.) And although the spiritual court may
compel a church rate for the purpose of repair, it must follow the law,
and cannot compel a rate for reimbursemet. (Id. 12.)

"Rates a personal Charge.] These levies are not chargeable upon
the realty, but upon the person in respect of the realty; in some places
therefore the rate will be assessed upon the amount of the land, and in
others, as in cities and large towns, upon the houses, where of course
there is no land which can be specifically so charged. (Degge, P. 1,
c. 12, Lutw. 1019, Hetl. 130.) And the assessment must be estimated
according to the value of the rent. (Lindw. 255.)

"Whether separate Rate for Ornaments.] In some of the earlier
authorities it is contended, that a separate rate must be made for the
ornaments of the church, and that it is purely a personal charge, not
referable to the land occupied, (2 Rolls. Abr. 291,) and that therefore
persons having land in the parish, but residing out of it, are not liable
to contribute towards the ornaments of the church. (Lindw. 255, Gibs.
196.) But Sir Simon Degge says, that the foreigner who holds lands
in the parish, is as much obliged to pay towards the bells, seats, and
ornaments, as to the repair of the church.

"And he hath seen (he says) a report under the hand of Mr. Latch,
that it was resolved in Millymot's case, H. 6. Ja., and in Chester's case
in the 10 Ja. that a foreigner that held lands in another parish wherein
he did not reside, was as much chargeable to the ancient ornaments of
the church, as bells, seats, and the like, as those that lived in the parish,
but that such landholders could not be charged to new bells, organs, or
such like. (Degge p. 1, c. 12; and see 1 Bulstr. 20, to the like effect.)

"Lands and Houses equally rated.] No custom by which the rate
is sought to be fixed upon lands only, and not upon houses, or upon
particular kinds of lands, to the exemption of other kinds, can be good,
for by the law all lands and houses are to be equally rated. (Hetl. 130;
Latch, 203.)

"To this rule there is one exception, viz. possessions, farms, or rents,
which are of the glebe or endowment of the churches to be repaired;
(Lindw. 255;) but if there be lands, &c., within the parish, belonging
to another church, it seems they are not exempt. (Ib.)

"Not chargeable for Land in other Parish.] But a person cannot
be charged in the parish where he inhabiteth, for land which he hath in
another parish, to the reparation of that church where he inhabiteth,
for then he might be twice charged, for he may be charged for this in
the parish where the land lieth. (2 Roll's Abr. 289.)

"And therefore the rate shall be laid upon all lands within the parish,
although the occupiers inhabit in another parish, which point was first
fully settled in Jeffrey's case, (5 Co. 66,) when it was also resolved
(pursuant to the opinion of divers civilians, under their hands,) that
such occupation of land maketh the person occupying a parishioner,
and entitles him to come to the assemblies of the same parish, when
they meet together for such purposes: and it was said that if such lands
were not liable to be rated, a person who inhabiteth in one parish might
occupy the greatest part of the lands in another parish, and so churches
might come to ruin. And, although seven years after this, in the case
of Paget and Crumpton, (Cro. Eliz. 659,) a prohibition was obtained

upon a surmise that the person rated lived not in the parish; yet, upon sight of this precedent, Popham, chief justice, changed his opinion, and it was resolved by him, and the whole court, that a consultation should be granted; and now, Lord Coke says, this is generally allowed and received for law. (Gibs. 196.)

"Residence or Occupancy.] In Woodward v. Makepeace, (1 Salk. 164,) it was resolved that the plaintiff was an inhabitant where he occupied the land, as well as where he personally resided. Secondly, that although he doth not personally live in the parish, yet, by having lands in his hands, he is taxable: and whereas it was pretended that the bells, for the recasting of which the rate was imposed which he had refused to pay, were but ornaments, Holt, chief justice, said, 'if he be an inhabitant as to the church, which is confessed, how can he not be an inhabitant as to the ornaments of the church?"

"Tenant, not Owner, chargeable.] Where such lands are in farm, the tenant shall pay. For (as it was determined in Jeffrey's case, before cited,) there is an inhabitant and parishioner, who may be charged, and the receipt of the rent doth not make the lessor a parishioner. And so it was resolved in Anonymous. (4 Mod. 148.)

"Patron. &c. exempt.] It is said that the patron of a church, as in right of the founder, may prescribe that in respect of the foundation he and his tenants have been freed from the charge of repairing the church. (Degge, P. 1, c. 12.)

"Rector, &c. exempt.] The rectory, or vicarage, which is derived out of it, are not chargeable to the repair of the body of the church, steeple, public chapels, or ornaments; being at the whole charge of repairing the chancel. (Degge, P. 1, c. 12.)

"But an impropriator of a rectory or parsonage, though bound to repair the chancel, must contribute to the reparations of the church, in case he hath lands in the parish which are not parcel of the rectory. (Gibs. 197.)

"How far Chapelry exempt.] The inhabitants of a precinct having a parochial chapel which they repair, are nevertheless of common right contributory to the repairs of the mother church.

"If they have seats in the mother church, to go thither when they please, or receive sacraments, or sacramentals, or marry, christen, or bury at it, there can be no pretence for a discharge. Nor can any thing support that plea, but that they have time out of mind been discharged, (which also is doubted, whether it be of itself a full discharge,) or that, in consideration thereof, they have paid so much to the repairs of the church, or the wall of the churchyard, or the keeping of a bell, or the like compositions, which are clearly a discharge. (Gibs. 197, 1 Burn. Ec. L. 383.)

"Hall of a Company.] The hall of a company being rated to the repairs of a church, the spiritual court may proceed against the master and wardens of such company for non-payment. For the spiritual court hath no other process than by citation, which cannot be executed upon an aggregate corporation, and therefore the officers of the corporation are to be cited, to whom it belongs to pay the tax; and the rate paid by them is to be allowed in their accounts. (Thursfield v. Jones; SirT. Jones, R. 187.)

"Stall in a Market.] If a petty chapman take a standing for rent to be paid by him, in the waste of the manor within the market, for two or three hours every market day, to sell his commodities, the market being holden there one day every week, but he inhabiteth in another parish, he may not be rated to the reparation of the church for this standing. (2 Roll's Abr. 289.)

"Rule of Assessment.] A taxation by the pound rate is the most equitable way, and not according to the quantity of the land. (Wood's Inst. b. 1, c. 7.)

"The assessors are not to tax themselves, but to leave the taxation of them to the residue of the parish. (Godb. Appendix, 10, 11.)

"Customs to be observed.] If a parish consist of several villas, and there is a custom to levy the rate in certain proportions, they must pursue it; for such a custom may be, or may have been, in its commencement, reasonable. (Burton v. Wileday, Andrews, 32.)

"Appeal to Ecclesiastical Judge.] If any person find himself aggrieved at the inequality of any such assessment, his appeal is to the ecclesiastical judge, who is to see right done. (Degge, P. 1, c. 12.)

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Enforcing Payment.] Parishioners refusing to pay their rates, being demanded by the churchwardens, they are to be sued for in the ecclesiastical courts, and not elsewhere. (Degge, P. 1, c. 12.) For the cognizance of rates made for the reparation of churches and churchyards, in consequence of the 13 Ed. 1, belongs to the spiritual court. (Paget v. Crumpton, Cro. Eliz. 659.)

"Where Custom pleaded.] If a suit is instituted in the ecclesiastical court for a church rate, and a custom pleaded of a certain sum, or of something done in the room of it, and that plea is admitted, they may proceed to try that custom in the same manner as a modus; but if the custom is denied, it will be a proper ground for a prohibition; for the trying of the custom is the province of the common law. (1 Atkyns. 289.) So if the party assessed aver that the land for which he is assessed lies in another parish, and not in the parish where it is assessed, he may have a prohibition, and try it at common law. (Degge, P. 1, c. 12.)

"Subtraction of Church Rate.] In a suit instituted by churchwardens for subtraction of church rate, (that is, a refusal to pay the sum to which the party has been assessed,) the ecclesiastical court will not, at the prayer of the defendant, issue a monition to the party imposing the rate, for the production of parish books, which are not shown to apply immediately to the question in issue: and if, on the merits, the rate be pronounced for, the court will condemn the defendant in costs, for they are almost universally so decreed in suits for church rates, where the rate is confirmed. (Goodall and Gray v. Whitmore and Fenn, 2 Hagg. Rep. N. S. 369.)

"Justices Authority herein.] By statutes 53 Geo. 3, c. 127, s. 7, for England, and 54 Geo. 3, c. 68, s. 7, for Ireland, when any person rated to church or chapel-rate, (the validity of which has not been questioned in any ecclesiastical court,) refuses payment, any justice of the county, city, &c., on complaint of the churchwardens, may convene, by warrant, such person before two or more justices, and examine, on oath, into the merits of the complaint, and may order, under their hands and

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seals, payment of any sum so due, not exceeding £10, besides costs, to be recovered, if payment is not made, by distress and sale of the goods of the offender, his executors and administrators, under the warrant of any one of such justices.

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Appeal to Sessions.] An appeal is allowed to the next quarter sessions for the county, &c. wherein the church, &c. for which the rate was made is situate; and if the justices present, or a majority, affirm the judgment, it shall be decreed by order of session, with costs to be levied by distress and sale of appellant's goods. Provided that when such appeal is made as above, no distress warrant shall be granted till after its determination.

"Ecclesiastical Jurisdiction saved.] Provided that nothing herein shall alter the jurisdiction of ecclesiastical courts to hear and determine causes, touching the validity of any such church or chapel-rate, or from enforcing payment thereof, if exceeding £10, from the party proceeded against. If the validity of such rate, or liability of the person from whom it is demanded, be disputed, and the party give notice thereof to the justices, they shall forbear giving judgment thereon, and the persons demanding the same may proceed to recovery of their demand by due course of law as before accustomed.

"But nothing herein shall affect parliamentary regulations respecting church or chapel rates of any particular parishes or districts.

"Distress made out of District.] And by 54 Geo. 3, c. 170, s. 12, the goods and chattels of any person neglecting to pay any sum legally assessed on him for any poor rate, church cess, or highway cess of any district, parish, &c. for seven days, after demand made, may be distrained, not only within the parish, district, &c. in which it is made, but also within any other district, parish, &c. within the same county or jurisdiction; and if sufficient distress cannot be found within such county, &c., then, on oath thereof made before any justice of the peace of any other county, &c. in which any of the goods of such person shall be found; which oath such justice shall certify by indorsing his name on the warrant granted to make such distress, such goods, &c. shall be liable to such distress and sale in such other county, &c., and may, under such warrant and certificate, be distrained and sold as if found within the district, parish, &c. in or for which the rate was due.

"Preliminaries to issuing Warrant.] Under the 53 Geo. 3, c. 127, s. 7, the justice cannot issue his warrant unless it be made affirmatively to appear before him, that the amount does not exceed £10, and that no question is made on the rate in the ecclesiastical court.

"If neither of these preliminary exceptions exist, the party may give notice to the two justices that he disputes the validity of the rate, or his liability to pay it, though no proceeding is actually commenced in the ecclesiastical court: and any expression by him, manifesting that he disputes the rate bonâ fide, will be a sufficient notice to put a stop to the proceedings before the justices. Thus where a parishioner, upon being brought before two justices for not paying the rate, declared in their presence, that he would bring an action against any person who ventured to levy the rate, as he thought he had no right to pay, because he had no claim to, or seat in the chapel,' this was held a sufficient notice

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