The Sun.
London, England, 1861-01-17 00:00:00

EMPSON (APPELLANT) V. TEE METROPOLITAN BOARD OF
WORKS (RESPONDENTS).
This was a case stated for the opinion of this
Court upon appeal from a decision of Mr. Traill,
police magistrate at Greenwich.
The appellant, James Empson, was a ratepayer
of St. Nicholas, Deptford, and he had been sum-
moned before the magistrate, on the 13th of Feb-
ruary, 1860, for the non-payment of a rate assessed
ur on him by certain assessors appointed by the
Metropolitan Board of Works, under the 161st
section of the Metropolis Local Management Act
(the 18th and 19th of Victoria, chap. 120). The
appellant appeared, in answer to the summons, on
the 18th of February, and also on the 17th of
March, 1860, when it was proved before the magi-
strate, that on the 3d of March, 1857, the Metro-
politan Board of Works made an assessment upon
the Greenwich District Board of Works, amounting
to £10,723 14s. Bd. for defraying the annual ex-
expenses of the Metropolitan Board, and also for
the payment of the debts of the defunct Metropoli-
tan Commissions of Sewers up to the 31st of
March, 1856, when that body expired and was suc •
ceeded by the Metropolitan Board of Works. Upon
that assessment a precept was issued, dated the 13th
of March, 1857, requiring the Greenwich District
Board to pay the amount by the 30th of May.
Certain payments were made in respect of the said
precept to the extent of £1,650 13s. 10d., thus
leaving a balance of £9,073 Os. 10d. unpaid. Upon
the default of the Greenwich District Board of
Works to pay that balance the Metropolitan Board
of Works, on the 24th of June, 1859, appointed
certain assessors to assess and levy the said balance
of £9,073 Os. 10d.; and the assessors so appointed
on the 3d of August, 1859, made an assessment of
4d. in the pound upon the rateable property in the
parish of St. Nicholas, which rate was allowed
and published. On the proof of these facts, two
preliminary objections were taken and overruled,
and the appellant then raised the following objec-
tions to the rate :-1. That the Metropolitan Board
of Works had no power to issue the precept of the
13th of March, 1857, and to demand the full sum of
£10,723 14s. Bd., inasmuch as £6,275 18s. 7d. was
for payment of the loans, mortgages, debts, and
liabilities of the late Metropolitan Commissiopere
of Sewers, under the 11th and 12th Victoria, cap.
112, of which the district of Greenwich was not
liable to pay any portion. 2. That nothing was
now done finder the said precept, the Greenwich
Digtriet Board having paid the sum of £1,650 13s.
10d., which was more than the Metropolitan lioard
could legally demand of theni. 3. That cOtlite-
quently the appointment of the said assessors was
invalid, and the rate made byithem illegal. 4. That
the assessment made by the said assessors was re-
estimated according to the estimate or basis on
which the county Irate was assessed in 1857, the
county rate of 10d. having been adopted, instead of
the county rate of 1856. 5. That the defendant
(appellant) was not liable to pay the demand
claimed, which it was contended was due, if at all,
on the issuing of the precept of the 13th of
March, 1857, at which time the defendant (appel-
lant) was not, nor until the: month of March,
1859, did he become, an occupier in rateable pro-
perty, nor liable to pay rates in the said parish of
St. Nicholas, Deptford. The magistrate declined to
entertain these objections, upon the ground that
they were matter for appeal to the Quarter Ses-
sions against the rate ; and, as the defendant (appel-
lant) had not appealed, the magistrate could not
receive those objections at that stage of the pro-
ceedings. The appellant then objected that the rate
was not duly published, inasmuch as the notices
were affixed only to the churches and chapels of the
Established Church, and not also to Dissenting
chapels, and that evidence only showed that they
were affixed 'on Saturday, the 6th of August, and
not on the Sunday. The magistrate also overruled
these objections, being of opinion that the statute,
the 7th William IV. and Ist Victoria, cap. 45, sec.
2, which required such notices to be " affixed on or
near to the doors of all the churches and chapels
within such parish or place," only required that
they should be affixed to or near to the churches
and chapels of the Established Church, and that, in
the absence of proof to the contrary, the reasonable
presumption was, that the notices so affixed on the
Saturday were there on the Sunday. The magis-
trate also found that the notices were affixed " on
or near to the church doors," and ultimately, on the
17th of May, 1860, he ordered the appellant to pay
the rate, or that a warrant to levy. the same should
issue. The appellant then required the present
case to be stated.
Mr. Woolrych, in support of the order of the
magistrate, contended that his decision was right.
The rate in question had been made by lessors ap-
pointed by the Metropolitan Board of Works, in
default of payment by the Greenwich District
Board of Works ; and, by the 168th section of the
Act, the rate so made by assessors was to be en-
forced in the same way as a rate made by overseers
under the 161st section. The objections taken to
the rate, if valid at all, were ground of appeal;
and, as the rate was good upon its face, and had
been duly allowed and published, the only duty of
the magistrate was to enforce payment.
Mr. Justice Crompton—The magistrate stated
that the objections were matter for appeal, and that
it was sufficient to show that the rato had been
duly made, allowed, and published.
Lord Chief Justice Cockburn intimated that
he thought the magistrate was right, and called on
Mr. Lush to support his appeal.
Mr. Lush, Q.C., for the appellant, said the Me-
tropolitan Board of Works had charged the parish
with the debts of the old Commissioners of Sewers,
which they had no right to do, and the statute gave
no appeal against such an assessment. The learned
counsel referred to the 168th section of the Act,
which enacted that, in default of payment by a
vestry or district board, the Metropolitan Board of
Works might appoint assessors to levy the money
required, and such persons should " proceed in the
same manner, and have the same powers, remedies,
and privileges, and be subject to the same regula-
tions and penalties, with reference to the levying
of such money as any overseers would have had or
been subject to with reference to levying any such
money in pursuance of an order of the vestry or
district board," &c.
Lord Chief Justice Cockburn said, surely that
section, when read with the 161st section, involved
the right of appeal. The two sections must be
taken together, and his Lordship intimated that
the 168th section put the assessors in the same
position as the overseers were in under the 161st
section, which enacted that all rates made by
the overseers, in obedience to the order of a vestry
or district board, " shall be allowed in the same
manner, and be subject to all the same provisions
in relation to appeal, and to excusing persons from
payment on account of poverty or otherwise, as the
rate for the relief of the poor in th 6 same parish."
Mr. Lush contended that the 168th section gave
no appeal, and that its terms were different from
those of the 161st section.
The Court, however, expressed a strong opinion
that the magistrate was right.
Mr. Lush said the assessors had assessed a person
who was not liable to be assessed at all, and the
rate was void on that ground. It was like the case
where a person was assessed who had no land in
the parish.
Lord Chief Justice Cockburn referred to the case
of the Luton Board of Health (29 L. J. M. C.) as
conclusive.
Mr. Justice Hill said it was sufficient if the rate
was good upon its face.
Mr. Justice Crompton said, if the appellant could
go back to the precept, he might go back to the
original order.
Lord Chief Justice Cockburn said, the appellant
might have appealed. It was a sound principle
that when an objection was taken which was good
ground of appeal, the magistrate could not go into
that, but he was bound to act ministerially.
Mr. Lush then contended that there was no
sufficient publication, but
The Court overruled these objections likewise,
and confirmed the decision of the magistrate.
Mr. Woolrych applied for costs.
Lord Chief Justice Cockburn—No, no, no.
Judgment affirmed without costs.
Another similar case in the Crown Paper—
namely, that of Peckham, followed the same course.

COURT OF PROBATE AND DIVORCE.
(Before Sir C. Cresswell.)
LEATHAM Y. LEATHAM AND GETHEIR.
In this case the husband, a civil engineer, em-
ployed on an Indian railway, had obtained a disso-
lution of his marriage on the ground of his wife's
adultery with the co-respondent, an Irish baronet,
and the facts of the case have been fully reported.
Dr. Swabey now applied for permanent alimony.
for the wife, alleging that there were some extenuat-
ing circumstances in her conduct.
Dr. Phillimore, Q.C., for the petitioner, opposed
the motion.
Sir C. Cresswell considered that it would not be
conducive to the interests of public morality if he
granted the application, but directed that the
damages £l5O recovered against the co-respondent
should be laid out in a Government annuity for the
wife.
The rule nisi for the dissolution of the marriage,
which had been suspended until the question of
alimony was determined, was then made, and the
co-respondent was condemned in the costs. •
GURNEY V. GURNEY AND TAYLOR.
The husband had presented a petition for a di-