thereof in certain proportions, to be ascertained by the commissioners; and that if the said annual composition rents should be in arrear, the prebendary for the time being, &c. might enter and distrain in the particular lands charged, &c. And that in all future rates and levies in the said townships, the said composition rents should be assessed in the same proportion as the other landholders.-Lord Ellenborough, C. J. said,-The question is, Whether a person, who I will suppose for the present is liable to be rated for something beyond the 6s. 8d., can be rated to the amount of 2501., and then left to pare down that assessment upon an appeal to the amount which it ought to be? He might as well have been charged to the extent of 50,000l. It is not stated as a fact in the case that the appellant was in the receipt of the rents and compositions to the amount of 250l. If the sessions have proceeded upon what the Court has said in some cases, that if the party rated have rateable property in the parish they will not enquire into the quantum of the rate, they have egregiously mistaken the Court. When the question before the sessions is upon the quantum of the rate, the officers making it must show to the justices some probable ground for the amount at which they charge the party in the rate. The mischief of any other rule would be enormous; a small occupier may be rated at once in the round sum of 10007., and left to struggle his way out of that charge as he can. For the appellant it was observed, that the question made at the sessions was, Whether the appellant should begin by proving his case, that he was over-rated; or whether the parish officers should begin by proving a probable case for rating the appellant at so much? On which Le Blanc, J., said, the Court will have no difficulty in dealing with that naked proposition whenever it should be brought nakedly before them. The case was sent back to sessions.

Rex v. Prosser and others, 4 T. R. 17; 2 Nol. P. L. 607. On an appeal against a poor rate, because certain persons were omitted to be rated, it was determined that a parishioner who is liable to be rated, but who is not in fact rated, is a competent witness to prove the rateability of appellants. And by 54 Geo. III. c. 170, s. 9, it is enacted, "that no inhabitant or person rated or liable to be rated to any rates or cesses of any district, parish, township, or hamlet, or wholly or in part maintained or supported thereby, or executing or holding any office thereof or therein, shall before any Court or person or persons whatsoever, be deemed and taken to be by reason thereof an incompetent witness for or against such district, parish, township, or hamlet, in any matter relating to such rates or cesses, any law, usage, statute, or custom, to the contrary in anywise notwithstanding."

Meredith v. Gilpin and others, 6 Price, 146. Trespass against an overseer of a parish for breaking plaintiff's close. The close was claimed by the parish under an enclosure act, by which (if they succeeded in the action) the land would be vested in the overseers for the time being, in trust for the parish, in aid of the poor's rates.-Holroyd, J., at the Staff. Summ. Ass. 1818, and the Court of Exchequer (absente Richards, C.B.) held, that rated inhabitants were admissible witnesses by virtue of stat. 54 Geo. III. c. 170, s. 9.

By 10 Anne, the city of Norwich, and hamlets and liberties of the same, were incorporated for the purpose of better employing and maintaining the poor thereof; and the guardians thereby appointed were empowered from time to time to ascertain what aggregate sums would be necessary for that purpose, and to ascertain what proportion each parish, &c., should contribute, and then certify the same to the justices, two of whom were to issue their warrant, requiring the proper officers of each parish, &c., to rate and assess the amount on the respective inhabitants; and it was provided, that if any person, parish, &c., should find himself or themselves to be unequally assessed, he or they might appeal at the next sessions held after such assessment made and demanded. And where, under this act, the governors certified that the hamlet of L. ought to pay a certain proportion of an assessment made upon the whole city, and two justices issued their warrant, requiring the collectors of the hamlet to assess that sum upon the inhabitants, and the hamlet being aggrieved by such assessment: Held, that the churchwardens and overseers might appeal against both the certificate and

Eleventhly, Of appeal, &c.

Copies of rates to be entered in a book after ap

peals determined.

Twelfthly, Of distraining, &c.

Rate to be levied

by distress; and

may follow commitment.

the warrant thereon, as being an assessment made and demanded, within the meaning of the appeal clause in the statute. Rex v. Mayor and Justices of Norwich, 3 D. & R. 42.

By 17 Geo. II. c. 38, s. 13, it is enacted, that "true and just copies of all rates and assessments hereafter to be made for the relief of the poor, be fairly wrote and entered in a book or books, to be provided for that purpose by the churchwardens and overseers of the poor of every parish, township, or place, who shall take care that such copies be wrote and entered accordingly, within fourteen days after all appeals from such rates are determined, and shall attest the same by putting their names thereto; and all and every such book or books shall be carefully preserved by the churchwardens and overseers of the poor for the time being or one of them, in some public or other place, in every such parish, township, or place, whereto all persons assessed or liable to be assessed, may freely resort, and shall be delivered over from time to time to the new and succeeding churchwardens and overseers of the poor as soon as they enter into their said offices, to be preserved as aforesaid, and shall be produced by them at the general or quarter sessions, when any appeal is to be heard or determined."

(Twelfthly)-Of Distraining for the Poor Rate.

No action is sustainable for a poor rate, post, 157; 2 Burr. 1152; Underhill v. Ellicombe, M'Clel. & Younge, 456.

By 43 Eliz. c 2, s. 4, "it shall be lawful, as well for the present as subsequent churchwardens and overseers, or any of them, by warrant, from any two such if no goods, then justices of peace as is aforesaid, to levy as well the said sums of money and all arrearages, of every one that shall refuse to contribute according as they shall be assessed, by distress and sale of the offenders' goods, as the sums of money or stock which shall be behind upon any account to be made as aforesaid, rendering to the parties the overplus; and in defect of such distress, it shall be lawful for any such two justices of the peace, to commit him or them to the common gaol of the county, there to remain without bail or mainprize, until payment of the said sum, arrearages and stock; and the said justices of peace or any one of them, to send to the House of Correction, or common gaol, such as shall not employ themselves to work, being appointed thereunto as aforesaid; and also any such two justices of peace to commit to the said prison every one of the said churchwardens and overseers, which shall refuse to account, there to remain without bail or mainprize, until he have made a true account, and satisfied and paid so much as upon the said account shall be remaining in his hands.”

Distress for poor's

rate, &c., if not to

be found within the district, &c.,

may be made out

of the district.

And by 17 Geo. II. c. 38, s. 7, “The goods of any person assessed, and refusing to pay, may be levied by warrant of distress, not only in the place for which such assessment was made, but in any other place within the same county or precinct; and if sufficient distress cannot be found within the said county or precinct, on oath made thereof before some justice of any other county or precinct (which oath shall be certified under the hand of such justice on the said warrant), such goods may be levied in such other county or precinct, by virtue of such warrant and certificate; and if any person shall find him or herself aggrieved by such distress as aforesaid, it shall and may be lawful for such person to appeal to the next general or quarter sessions of the peace for the county or precinct where such assessment was made, and the justices there are hereby required to hear and finally determine the same."

By 54 Geo. III. c 170, s. 12, it is enacted, "That the goods and chattels of any person or persons neglecting or refusing to pay any sum or sums of money legally assessed on and due from him, her, or them, in respect of any rate for the relief of the poor, church, cess, or highway cess, of any district, parish, township, or hamlet, for the space of seven days after the same shall have been legally demanded of him, her, or them, shall and may be distrained, not only within such district, parish, township, or hamlet, but also within any other district, parish, township, or hamlet, within the same county, riding, division, or jurisdiction; and if sufficient distress can

not be found within the same county, riding, division, or jurisdiction, then, Twelfthly, Of upon oath thereof made before any one or more justice or justices of the distraining, &c. peace for any other county, riding, division, or jurisdiction, in which any of the goods or chattels of such persons shall be found; which oath such justice or justices are hereby required to administer and certify, by indorsing in his or their respective handwriting, his or their name or names, on the warrant granted to make such distress, the goods and chattels of the said person or persons so neglecting or refusing to pay as aforesaid, shall be subject and liable to such distress and sale, in such other county, riding, division, or jurisdiction, where the same shall be found; and may, by virtue of such warrant and certificate, be distrained and sold in the same manner as if the saine had been found within the district, parish, township, or hamlet, in or for which such rate or cess had been made or was due."

By 41 Geo. III. (U. K.) c. 23, s. 1. "If the court shall be of opinion that it is necessary, for the purpose of giving relief to the person or persons ap pealing, that the rate or assessment should be wholly quashed, then the said court may quash the same; but, nevertheless, all and every the sum and sums of money in and by such rate or assessment charged on any person or persons, shall and may be levied and recovered by such ways and means, and in such and the same manner, as if no appeal had been made against such rate or assessment; and all and every the sum and sums of money which any person or persons charged in such rate or assessment shall pay, or which shall be levied upon or recovered from him, her, or them, shall be deemed and taken as payment, on account of the next effective rate or rates, assessment or assessments, which shall be made for the relief of the poor of the same parish, township, vill, or place."

By s. 2. All and every the sum and sums of money at which any person or persons is or are or shall be rated or assessed, in any rate or assessment made for the relief of the poor of any parish, township, vill, or place, shall and may be levied and recovered by distress, and all other lawful ways and means, notwithstanding the person or persons so rated or assessed, or any other person or persons, shall have given notice of appeal from or against such rate or assessment, for any cause whatsoever: provided always, that if any person, rated or assessed in any rate or assessment, made for the relief of the poor, shall give such notice of appeal as hereinafter mentioned, to the churchwardens and overseers of the poor of any parish, township, vill, or place, or any two of them, then, from and after the giving of such notice, and until the appeal shall have been heard and determined, no proceedings shall be commenced or carried on to recover any greater sum or sums of money from such person or persons, than the sum or sums at which he, she, or they, or any occupier of the same premises, shall have been rated or assessed in the last effective rate, which shall have been collected in such parish, township, vill, or place."

By s. 3. "If the court of general or quarter sessions of the peace shall, upon appeal, order any rate or assessment for the relief of the poor to be quashed, it shall be lawful for the said court to order any sum or sums of money in and by such rate or assessment charged on any person or persons, or any part of any such sum or sums, not to be paid, and then and in every such case no proceedings shall, after making such order, be commenced: or if any proceedings have been previously commenced, such proceedings shall be no further prosecuted or carried on for the purpose of levying or enforcing the payment of any sum or sums which shall be so ordered by the said court not to be paid."

By's. 7. "If upon the hearing of any appeal from or against any rate or assessment, the said court shall order the name or names of any person or persons to be inserted therein, and him, her, or them to be rated or assessed at any sum or sums of money, or shall order the sum or sums at which any person or persons is or are therein rated or assessed to be raised or increased, then and in such case all and every the sum and sums of money, at or to which such person or persons shall be so ordered to be rated or assessed, or to be raised or increased, or so much thereof as shall not have been already paid, shall and may be recovered in such and the same manner, and by such and the VOL. IV.

L

Although the rate

be quashed, the

sums charged are to be levied and taken as payment next effective

on account of the

rate.

Notice of appeal not to prevent a not greater than that assessed in

distress for a sum

the last effective

rate.

Twelfthly, Of same means, as if he, she, or they had been originally named in such rate or distraining, &c. assessment, and rated or assessed therein at such sum or sums of money."

Oath of the refusal to pay the rate must be made before the justices, previously to distraining for nonpayment.

TheCourt granted

a mandamus to levy a rate, al

though it appear. ed that no sum

It was held, that a warrant may be made to distrain before the time, for which the rate is made, is expired. Charlwood v. Best, 1 Bott, 261.

If a landlord tender the poor-rate for his tenant, the overseers must receive it, and a warrant ought not to be granted to distrain upon the tenant. Rez v. Cosens, Doug. 426."

Money may be distrained for the poor rate as well as goods. E. I. Company v. Skinner, 1 Bott, 257. Quære.

Averia caruca are distrainable for the poor rate. Hutchins v. Chambers, 1 Burr. 579; and working-tools in a shop; 2 Show. 126.

A distress for a poor rate, for lands not in the occupation of the plaintiff, may be replevied, notwithstanding the sessions on appeal had confirmed the rate; the determining that a man may be assessed for what he does not occupy being an excess of jurisdiction. Milward v. Caffin, 2 Bla. Rep. 1330.

Justices need not be joined with overseers in actions for distress for a poor rate. Ibid.

But by Holt, C. J., in the case of Tracey & Talbot, 2 Salk. 532; 1 Bott, 259; 1 Nol. P. L. 258, the rate cannot be distrained for by virtue of a general warrant made before the rate; but there ought to be a special warrant on purpose. That is to say, the nonfeasance of the party shall not be left to the judgment of the officer, who may, out of private resentment, sell his neighbour's goods without sufficient cause; but oath of the refusal must be made before the justices. And it is reasonable that the party should be heard in his defence; for he may show cause variously why a distress should not be granted; as that the rate was not regularly allowed, or was not published in the church, or that he had given notice of appeal, or that no demand or refusal had been made, and the like.

Rex v. Justices of Middlesex, 1 Bott, 262; 1 Nol. P. L. 254. Motion for a mandamus to the justices of Middlesex to sign a warrant of distress for levying a poor's rate upon persons refusing to pay the same. Upon shewing cause, it was set forth in the affidavit to have been the custom not to grant mons had issued. warrants without first summoning the party to show cause, and that they had refused to grant any warrants of distress, without first summoning the party-Lee, C. J. A writ of mandamus will not give the justices any power they had not before, and therefore it is to be considered what powers stat. 43 Eliz. c. 2, s. 4, gives them; and in that there is no direction that the party shall be summoned to show cause: nothing appears upon the affidavits that this is such a rate as a distress ought to be granted upon; but the whole is, that persons applying for the warrant did first refuse to take out a summons, which to me does not appear a sufficient cause why the mandamus should not go; if the justices have sufficient reason why they did not grant the warrant, it will appear upon the return of the mandamus. The other judges concurred. Mandamus granted.

But it is now settled, that a summons must precede a warrant of distress for a poor's rate, and until such summons has been issued the Court will not issue a mandamus.

In Rex v. Benn & Church, 6 T. R. 198; 1 Bott, 269; 1 Nol. P. L. 254, 256. Against a rule for a mandamus to the defendants, who were justices for Cumberland, to grant warrants of distress to levy several sums of money on different persons who had refused to pay a poor's rate for the township of Whitehaven, the answer was that there should have been a previous summons by the magistrates to the respective persons charged with having refused to pay, which had not been issued in this case.-Bearcroft, in support of the rule, relied on the above case of Rex v. Justices of Middlesex.-Lord Kenyon, C. J. I confess I cannot subscribe my assent to the decision in the case cited. The payment of a poor-rate, unless it be set aside, must be enforced : and if the magistrates will not issue a summons to the person who refuses to pay the rate, the Court will grant a mandamus to compel them to do it: but a summons must precede a warrant of distress, which is in the nature of an execution. On the summons, the party may show a sufficient reason to the magistrates why a warrant of distress should not issue; as, for instance, that he has already paid the assessment to one of the parish officers who has not accounted for it. But it is an invariable maxim in our law, that no

man shall be punished, before he has had an opportunity of being heard: whereas if a warrant of distress were to be issued, without any previous summons, the party would have no opportunity of showing cause why the execution should not issue against him. But the next day the Court granted a rule for a mandamus to the magistrates "to receive such informations and complaints as shall be laid before them against persons refusing to pay the sums assessed upon them, for the relief of the poor of the township of Whitehaven, and to proceed thereupon to levy the same."

There must be a particular and special warrant, and a distress cannot be made under a general warrant. Tracey v. Talbot, 2 Salk. 532. Bell v. Oakley and others, 2 M. & S. 259; 1 Nol. P. L. 263. Trespass for breaking and entering the plaintiff's dwelling-house, breaking the doors and windows, and taking and carrying away his goods. Plea, not guilty. At the trial before Lord Ellenborough, C. J., at the Kent Summer Assizes, 1813, it appeared that the defendants, two of whom were the churchwardens, four the overseers, and two constables of the parish of Deal, together with the other defendant acting in their aid, went to the house of the plaintiff, who was an inhabitant of Deal, carrying with them a warrant granted by two magistrates, and directed to the said churchwardens and overseers, to distrain the plaintiff's goods for nonpayment of a poor's rate. Having knocked at the door, and being informed at the next house that the plaintiff was from home, one of the defendants jumped into the front area, and tried to get in at the cellar, but failed; in the attempt, however, some windows were broken. They then proceeded to the back part of the house, took the fastening out of a window, and got into the washhouse. After continuing there some time, and having found nothing within, the inner door being locked, they returned, and took away some planks and other articles which were lying in the garden. A verdict was found for the plaintiff, damages seven guineas, with leave for the defendants to move to enter a nonsuit, on the ground of there not being any proof of a demand of the copy of the warrant, as required by 24 Geo. II. c. 44, s. 6. A rule nisi to that effect was according obtained in the last term. And now after the report had been read, Lord Ellenborough, C. J., referred to Money v. Leach, 3 Burr. 1742; 1 Bla. Rep. 555; and enquired how the rule could be supported consistently with that decision? Knowlys, C. S., and Bolland, in support of the rule, took this distinction, that in that case the parties acted wholly without the authority of the warrant, for they executed the warrant upon a person who did not correspond with the description in it: whereas, here the defendants acted in partial execution of the warrant, though it must be admitted they exceeded its authority; but still they were not wholly unauthorised. And they cited Price v. Messenger, 2 Bos. & Pull. 158, to show that an officer may be entitled to the protection of the statute, where he has exceeded the authority delegated to him by the magistrate.-Lord Ellenborough, C. J. The case of Money v. Leach decides that the defendant, in order to avail himself of the objection upon the statute, must show that he acted in obedience to the warrant; in that case the officers apprehended a different person from that described in the warrant, and therefore not in obedience to the warrant: and Mr. Yorke, the then attorney-general, who was to have argued on behalf of the officers, gave up the point upon the second argument, as being too great a difficulty for him to encounter. Here the defendants, so far from showing that they acted in obedience to the warrant, commence by an unanthorised course of proceeding: it was a trespass in them ab initio; and I do not see how, after the case of Money v. Leach, they can stir this objection. That was a case of much public interest, and was decided upon great deliberation, and the matter was upon the record. If this had been a distinct subsequent trespass of the defendants, it might have presented a different question.-Bayley, J. In Price v. Messenger, the defendant, so far as he acted in obedience to the warrant, was under the protection of the statute, but he was holden liable for the seizure, which was not made in obedience to the warrant.-Dampier, J. The case of Money v. Leach decided, that where the justice cannot be liable, the officer is not within the