The Queen against the Inhabitants of Exminster
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 710
IN THE COURT OF QUEEN'S BENCH.
S. C. 4 P. & D. 69; 9 L. J. M. C. 108. Overruled, Mersey Docks v. Cameron, 1865, 11 H. L. C. 514.
REPORTS of CASES ARGUED and DETERMINED in the COURT of QUEEN'S BENCH. By JOHN LEYCESTER ADOLPHUS, of the Inner Temple, and THOMAS FLOWER ELLIS, of the Middle Temple, Esqrs. Barristers at Law. Vol. XII. Containing the Cases of Trinity and Michaelmas Terms and Vacations, 1840-41. In the Third and Fourth Years of VICTORIA. [1] cases argued and determined in the court of queen's bench, and upon writs of error from that court to the exchequer chamber, in trinity term and vacation, in the third and fourth years of the eeign of queen victoria. The Judges who usually sat in Bane in this term and vacation were, Lord Denman C.J., Littledale J., Patteson J., Williams J. The case of The Mayor, &c. of Maldon v. Woolvet, decided in Trinity term, that of Velty v. Burder, and some eases of Trinity vacation, marked S., are reported by Mr. Smirke. court of queen's bench. It is resolved by all the Judges that, when u, Judge's order is made a rule of Court, it shall be a part of the rule of Court that the costs of making the order a rule [2] of Court shall be paid by the party against whom tbe order is made, provided an affidavit be made and filed, that the order has been served on the party or his attorney, and disobeyed. Resolution of the Court, 27th May 1840 (a). the queen against the inhabitants of exminster. 1840. The Corporation of Exeter, before and after the passing of stat. 5 & 6 W. 4, c. 76, was possessed of a canal and towing paths. The tolls arid dues, after the passing of the Act, went into the Borough Fund. They were mortgaged, but produced more than enough revenue to pay the interest The canal and towing paths were situate in the parish of E., and out of the borough of Exeter. Held (before stat. 4 & 5 Viet, c, 48), that stat. 5 & 6 W. 4, c. 76, s. 92, by appropriating all the corporation funds to purposes of a public nature, exempted the tolls and dues from rateability to the poor in the parish of E, [S. C. 4 P. & D. 69; 9 L. J. M. C. 108. Overruled, Mersey Docks v. Cameron, 1865, 11 H. L. C. 514.] By a rate made (April 1839) for the relief of the poor of the parish of Exminster, Devon, the " Mayor, Aldermen, and Burgesses of the City of Exeter " (so styled in the (a) See 1 Mann. & G. 278: 6 M. & W. 603. 710 12 AD. * B. 8. THE QUEEN V. BXMINSTER 71 I rate) were assessed as the "occupiers" of "land covered with water, used as a canal, with towing paths adjoining." They appealed, on the grounds, that they were not the occupiers of any land, &c., in the said parish, within the meaning of the statutes made and in force for the relief of the poor; that they were not the beneficial occupiers of any land, tc., in the said parish ; and that they were not legally liable to be rated to the relief of the poor in the said parish in respect of the said land covered, &c., with towing-paths adjoining. The sessions amended the rate by striking out the assessment complained of, subject to the opinion of this Court on the following case. The Mayor, Aldermen, and Burgesses of the City and Borough of Exeter, which is a county of itself, are assessed as the occupiers of a canal in the parish of Exminster, in the following terms. (The assessment was then set out.) [3] The said canal passes through the several parishes of Exminster, Alpbington, and St. Thomas, in the county of Devon, no part thereof being in the City of Exeter, but communicating with that city by means of the navigable river Exe; and the canal and towing path adjoining belong to the said mayor, aldermen, and burgesses in their corporata capacity, and are in their own actual occupations. The tolls and duties arising therefrom are payable by virtue of an Act of Parliament passed in 1829, for altering, extending, and improving the canal (a)1: and the annual income produced by them is more than sufficient to pay the interest of a mortgage to which they are subject. No mention is made in the said Act of any purposes to which the surplus income should be applied, nor any provision whereby the tolls and dues should at any time be discontinued : but they are parts of the income and general revenues of the said municipal corporation, and are collected by their officers (who are paid by salaries), and by them paid over to the treasurer of the Borough Fund. These properties were formerly rated to the relief of the poor of the City of Exeter; but, for several years prior to the passing of stat. 5 & 6 W. 4, c. 76, they have been rated to the relief of the poor of the said parish of Exminster, which rating has been acquiesced in, and the rates thereupon...
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