to be made. And they may award reason "able costs on either side. 66 And copies of all rates made for the re"lief of the poor shall be entered in a book to "be provided by the church-wardens and overseers, who shall take care that such copies "shall be entered within fourteen days after all Appeals from such rates are determined, and shall attest the same by putting their names, "thereto; and all such books shall be pre"served by the church-wardens and overseers, "or one of them, whereto all persons as"sessed, or liable to be assessed, may resort, "and shall be delivered over from time to "time to the succeeding church-wardens and 36 overseers as soon as they enter into their "offices, and shall be produced by them at "the General or Quarter Sessions, when any Appeal is to be heard." 66 By 41 Geo. 3, c. 23. The difficulties which were found to arise from the partial amendment of rates, instead of quashing them entirely, are remedied by enacting that, “where "this mode takes place, the monies actually "assessed upon other persons than the parties "whose proportion has been thus altered on Appeal, shall be recoverable in the same 66 manner as if there had been no such Appeal, and shall be deemed as payment on account of the next effective rate; that the monies ordered to be assessed upon any per "son, shall be recoverable in like manner "as if they had originally been so inserted "in the assessment; and if any person's name "shall be ordered to be struck out, or his assessment to be lowered, that such extra 66 66 sum as he shall have paid over and above "what was right, shall be returned by the "overseers, with all costs, charges and ex 66 pences occasioned by such persons having "paid or been required to pay the same, "recoverable on refusal by distress and all such means as the poor rate assessment may by "law be recovered. "All notices of Appeals to be in writing, "and served upon two or more of the church. "wardens and overseers; such notice to spe .“ cify the particular grounds of Appeal, and "no other ground, unless by consent of parties "to be gone into." Taking a general view of these statutes then together, as forming a system, we have to examine the three objections of illegality, irregu larity, and inequality, in the execution of them, premising only a few remarks on the technical interpretation of some expressions in these statutes, which are, 1st. That next Session, with respect to commencement of reckoning, means, next after allowance, for it is no rate till it has been al + 4 Term R. 12. lowed, and therefore till then the other interpretation of the word next, which has before been explained, is not applicable. Session. 2ndly, That an adjourned Session may take Adjourned cognizance of the Appeal,* and may adjourn again before they give judgment.† 3lly, That the notice of Appeal, when it is Names to be specified in on account of particular persons being omit- an appeal. ted, &c. must specify those particular persons by name: for otherwise it would be neither a notice of appeal against the rate generally, nor against the rate for partiality as to individuals.‡ 4thly, That the power given to the Sessions No costs unless appeal to award costs, presupposes the Appeal has have been been entered, and determined, and therefore heard. unless such have been the case, although expences may have been incurred in preparing a defence, none can be given.§ further ex plained. A rate must necessarily be illegal, which is Illegality 'made in contradiction to the provisions of the. statute which ordains it. Therefore a rate made as for a parish, or a vill, which is neither one, nor the other; or which is made, or allowed, by persons not having the authority which is specified by the statutes; or which *7 Term R. 107. † 2 Bott. 730. § 2 Bott, 757. professes to be made by a greater, or a less; number of persons, than that to which the statutes have restricted the number of officers; is no rate at-all, and cannot be enforced by mandamus or any other legal process; for if the source be bad ab initio, that which flows from it cannot be efficient.* So, if the purpose for which the rate professes upon the face of it to be made, be unlawful, it is sufficient ground for resisting it. A poor's rate can only be made for the relief of the poor ; it therefore cannot be made to reimburse former overseers; for an overseer is not bound to lay out money before he has received it by a rate.-This was determined in Tawney's case, Hil. 2 Ann.-Tawney, being an overseer of the poor, laid out his money for their relief, and was turned out of his office before the end of the year, by which means he lost the opportunity of making a rate to reimburse himself. Upon this he obtained a mandamus directed to the church-wardens and overseers to make a rate to reimburse him, and it was argued, that there could be no such charge, neither by the common law nor by the statute. By Holt, Ch. J. "We cannot order the parish nor overseers to make a rate to raise money to reimburse an overseer, but only to raise money for the relief of the poor, nor can * 1 Burr. R. 445.---446. they make a rate otherwise. The act of Parliament is expressly so, and must be pursued. An overseer is not bound to lay out money till he bas it; if he does, he must make a new rate for the relief of the poor, and out of that he may retain to pay himself. Tawney should have done so; he trusted where he needed not have done it; he has not pursued the means the statute gave him; and we cannot relieve him." And by the whole Court, "The mandamus lies not."* And if the overseers make an assessment for the relief of the poor for six months prospectively, and a person rated thinks it objectionable on that ground, he may appeal to the Quarter Sessions; and it has been generally laid down by the Court of B. R. that a prospective rate, from three months, to three months, was on the whole the most convenient method of rating.† Ditto. A rate may have a legal commencement, Irregularit but be rendered inefficient in its progress by the omission of some form directed by the statutes. Therefore, if a poor rate be not published in the church on the next Sunday after it hath been allowed by the Justices, it is a nullity, and payment under it cannot be enforced, although it has not been appealed Salk. 357.---1 Doug. R. 116. |