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Twelfthly, Of distraining, &c.



(E.) Commitment thereon when no Distress can be found.

[43 Eliz. c. 2, 3. 4, post, p. 157; 3 Geo. IV. c. 23, s. 2.] County of To the constable of the parish of

and to the keeper of the common gaol at

in the said county. Whereas, in and by a rate and assessment made, assessed, and published according to the statutes in that case mude and provided, T. O., an inhabitant and occupier of premises in the said parish of was duly rated and assessed for and towards the necessary relief of the poor of the said parish, for this present year, in the sum of

And whereas it duly appears unto us, (or, as the case may be,] J. B. and C. D., esquires, two of his Majesty's justices of the peace in und for the said county (one whereof is of the quorum), as well upon the oath of A. B., overseer of the poor of the said parish of as otherwise, that the said sum of

has been laufully demanded of the said T. O., and that the said T. 0., has refused and does refuse to pay the sume: And whereas the suid T. O., having appeared before us, [or, the said justices,] on the

day of

last, in pursuance of a summons for that purpose, did not then show unto us, [or, them, as the case may be,) any sufficient cause why the same should not be paid : (or And whereas it has been duly proved to us (or the said two justices,] upon oath, that the said T. 0. was duly summoned to appear before us [or, as the case may be], the said justices on the day of last, to show cause why the same should not be paid, but he, the said T. 0., neglected to appear according to such summons, and did not, and has not shown to us [or, to them) any sufficient cause why the same should not be paid :) And whereas on the said day of last, we [or, they] did issue our (or, their] warrant, to the churchwardens and overseers of the poor of the said parish of to levy the said sum of 1. by distress and sale of the goods and chattels of him, the said T.O., and to apply the same according to law: And whereas it duly appears unto us, [or me, J. B., esquire, one of his Majesty's justices of the peace in and for the said county as the case may be, one justice being by slat. 3 Geo. IV. c. 23, s. 2, declared competent to proceed when the adjudication has been already made by two,) as well upon the oath of A. B., overseer of the poor of the parish of

aforesaid, as otherwise, that he the said overseer of the
used his best endeavours to levy the said sum on the goods aud chattels of him, the said
1.0., as aforesaid, but that no sufficient distress can be had whereon to levy the same :
These are therefore to command you, the said constable of the parish of
aforesaid, to apprehend the body of the said T. O., and him sufely to conrey to the
common gaol ut in the said county, and there deliver him to the said keeper
thereof, together with this precept. And we, (or 1, as the case may be,] do hereby
command you, the said keeper of the said common gaol, to receive into your custody in
the said common gaol, the said T.O., there to remain without bail or mainprize, until
payment of the said sum (a.) Given under our hands and seals [or, my hand and
seal, as the case may be,) the day of in the year of our Lord
one thousand eight hundred and

J. B. (L. S.)
C. D. (L. S.)

(L. S.)
And by 17 Geo. II. c. 38, s. 8, 9, 10. “ Where any distress shall be made
for any sum or sums of money justly due for the relief of the poor, the dis-
tress itself shall not be deemed to be unlawful, nor the party or parties
making it be deemed a trespasser or trespassers, on account of any defect,
or want of form in the warrant for the appointment of such overseers, or in
the rate or assessment, or in the warrant of distress thereupon ; nor shall the
party or parties distraining be deemed a trespasser or trespassers ab initio,
on account of any irregularity, which shall be afterwards done by the party
or parties distraining, but the party or parties aggrieved by such irregularity,
shall or may recover full satisfaction for the special damage, he, she, or
they shall have sustained thereby, and no more, in an action of trespass, or
on the case, at the election of the plaintiff or plaintiffs. Provided always,
That where the plaintiff or plaintiffs shall recover in such action, he, she, or
they shall be paid his, her, or their full costs of suit, and have all the like
remedies for the same as in other cases of costs. Provided nevertheless

poor has

or, J. B.

Distress shall not be deemed unlawful for want of form in the procecdings.

(a) These are the words of the stat. of Elizabeth,

want of distress. D. E.

bail or

that no plaintiff or plaintiffs shall recover in any action for any such irregu- Twelfthly, Of larity as aforesaid, if tender or amends hath been made by the party or distraining, &c. parties distraining before such action brought.”

By 43 Eliz. c. 2, s. 4. In defect of such distress, [(D), p. 155] it shall Commitment for be lauful for any such two justices of the peace, to commit ((E), p. 156] him or them to the common gaol of the county, there to remain without

mainprize, until payment of the said sum, arrearages and stock : and the said justices of peace or any 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, who 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.

And by 17 Geo. II. c. 38, s. 11. “ In case any person or persons shall refuse Arrears to be or negleci to pay to such overseers as aforesaid, any sum or sums of money that levied by the suc

ceeding he, she, or they shall be legally rated or assessed to, it shall and may be lauful

seers (a). to and for the succeeding overseers, and they are hereby required to lery such arrears, and out of the money so levied to reimburse their predecessors all sums of money which they have expended for the use of the poor, and which are allowed to be due to them in their accounts as aforesaid."

The goods only of the party assessed can be taken under the distress. Only the goods of The 43 Eliz. c. 2, s. 4, ante, 150, enacts, &c., “ by distress and sale of the the party assess

ed can be taken. offender's goods." The 17 Geo. II. c. 38, s. 7, says, " The goods of any person assessed." It is otherwise as to the assessed taxes, for which any goods on the premises may be distrained. Stevens v. Evans, 2 Burr. 1152; Juson v. Diron, 1 M. f. S. 601.

In case a person charged shall die before payment, it has been doubted Quere, Whether how far the deceased's goods in the hands of the executor or administrator goods of party are liable to answer the same.

As in the case of Stevens v. Evans and of executor can others, 2 Burr. 1152; 1 Bla. Rep. 284; 1 Bott, 265; 1 Nol. P. L. 252. be taken. It was William Vesey was assessed to the poor rate, and died intestate. Adminis- beld, that at all tration of his goods granted to John Stevens, the plaintiff. After which, cutor must be two justices executed a warrant, in which warrant the said assessment was

first suminoned. recited; and in the said warrant it was also recited that it appeared to the justices, on the oath of the late overseer, that the sum assessed had been demanded of the said William Vesey, and (since his decease) of his widow and representative Susannah Vesey, and that they refused to pay the same; therefore the justices require the officer to distrain the goods and chattels of the late William Vesey. An action of trover was brought by Stevens, the administrator, and a special case was stated for the opinion of the Court: and the question as stated was, Whether the distraining, and taking, and selling the cattle which were the goods of William Vesey, in the hands of the plaintiff, his administrator, by virtue of the said warrant, was lawful or not ?-After hearing Mr. Norton for the plaintiff, and Mr. Bishop for the defendants, Mr. Justice Denison said, — The question is stated particularly upon this case; and is confined to the levying the money upon the representative of the person charged. I should think the event must have often happened in fact and experience. The practice is not stated. But, however, the question is, What the law is ? and not what the practice is. It is a rule, that upon a new statute which prescribes a particular remedy, no remedy can be taken but the particular remedy prescribed by the statute. Therefore, clearly, no action of debt will lie for a poor rate. No action of debt The remedy given by the act of the 43 Eliz. must be considered with lies for a poor analogy to other like cases. This statute considers the person rated and rate (6). refusing to pay as an offender. And gives no authority but to distrain the goods of the offender. Therefore no goods are liable to be distrained, by the words of this act, but the goods of the offender himself. I never apprehended that the goods of the person assessed to the rate can be charged in the bands of the representative. And therefore (as at present advised) I

(a) See Lanchester v. Thompson and others, 5 Maddock, 12.

(b) Ante, 150.

Twelfthly, of should think that this action will lie for taking them. I agree that this is distraining, &c. in the nature of an execution ; but yet it is personal: and I do not know

that it is a lien upon the assets.-Mr. J. Wilmot concurred; and said,
he had no doubt about it. He thought the intention of the special case,
which states a particular question, appeared to be, to submit this question
only to the Court. As to the objections that have been made to the rate,
the first is of no great importance: for though you cannot make a rate to
reimburse overseers, yet the overseer may immediately, whilst in office,
reimburse himself out of the next money raised for the rate. As to the
second, he said, he believed that whatever the law might be, the practice
was, not to make these rates monthly. On the merits: It is not stated in
the case, that a demand was made even upon Vesey (the person assessed),
and that he refused payment, though it is so recited in the warrant; but
that is not material; for I have not the least doubt, but that the representa-
tive ought to have been convened before the justices, and asked what he
had to say why he should not pay the rate assessed upon Vesey, his
intestate. The case seems to be like a scire facias upon a judgment;
upon which execution cannot be sued out against the representatives, with-
out asking them what they have to allege why it should not be taken out.
At the time of the teste of the warrant, they were the goods and chattels of
the representative. If the teste had been prior to the death, they would
have been the goods and chattels of the deceased ; but if tested after
hisdeath, they are not his goods and chattels, but the goods and chattels
of the representative: therefore, if the money had been demanded of the
representative, I should have had great doubt, whether this warrant and dis-
tress would not have been good; for I cannot think that by the death of the
person charged with this rate, the assessment before made upon him and
demanded of him would have been quite gone and lost to the parish, and
could not have been any way come at; for though it may be a charge
upon the person, yet it is a charge upon him in respect of the thing oc-
cupied. And though he be called an offender, if he refuse to pay it, yet
he can be no otherwise considered as an offender, than every other debtor
who refuses or neglects to pay his debts, and thereby renders his person and
goods liable to be taken in execution, is so far treated as an offender, till
he shall comply with the judgment awarded. And in experience I know it
to be the case, that these payments by executors or administrators are often
allowed to go in discharge of the assets of the testator or intestate ; though
I do not remember that it has been settled in what course of administration.
Indeed it might be of too much consequence, to put it into the power of justices
of the
peace to determine upon

the administration of assets, as to the course in which they are to be administered. In the case of Wallis and Hewit at Guildhall, at the sittings after Hilary term, 5 Geo. II. before Lord C. J. Eyre, in an action of trespass, two aldermen of London had made a warrant to distrain a man for a poor rate. The man died intestate; but before that, there had been a demand made upon him, and refused by him, and a warrant of distress granted upon his refusal; and then he died. Eyre, C. J., held that a distress could not be made after his death; or, if it could, yet the representative ought to have been summoned: and he held the property to be changed. A case was made for the opinion of the Court of Common Pleas; but I could not hear what became of it. Lord C. J. Eyre was a great lawyer. It would be strange that a distress should be taken upon a man's goods without hearing him, and it would make great confusion in the administration of assets: he may have paid or retained judgment debts, prior to this distress for the rate.—Mr. Gould was retained to take notes for the defendants. But he said, that if Mr. Norton insisted upon the want of a demand from the representative, he could not pretend to maintain the case on the part of the defendants.—Mr. J. Denison and Mr. J. Wilmot said, that this was an essential circumstance.—And by the Court (Lord Mansfield, C.J., and Mr. J. Forster being absent), judgment was given for the plaintiff,

the administrator. In an action of Hurrell v. Wink, 2 B. Moore, 417; 8 Taunt. 369. S. C. This was an replevin for take action of replevin for taking the plaintiff's goods. The defendant avowed goods the defend the taking under 43 Eliz., as the overseer of the poor of the parish of

ant avowed as overseer of the

several rates, one

ed, the warrant

Rayleigh. Plea de injuriâ. At the trial of the cause before Wood, B. at Twelfthly, Of the late assizes for Essex, it appeared that a warrant of distress was granted distraining, &e. against the plaintiff on the 9th of January, 1817, and executed on him on the 13th day of that month, as inhabitant or occupier of a farm in the parish of Rayleigh, in the county of Essex, for the sum of 1041. 178. due for poor, under the seven several poor rates and assessments. The plaintiff appealed to the last 3 Eliz, by virtue quarter sessions for that county, on the ground that he was not an inhabitant distress for 1011. or occupier within the parish of Rayleigh; and, on the appeals being called 178., due for on, an objection was taken, on the ground that the notice was insufficient of which was in point of time as to the first six rates, as the stat. 17 Geo. II. c. 38, required quashed, on the an appeal to the next general quarter sessions, and as the warrant of distress ground, that the was executed on the 13th of January, being only the day before the last an occupier withquarter sessions for Essex, there was not even sufficient time to give notice in the parish of appeal to that session : on which the plaintiff abandoned the six first rated : Held, that rates mentioned in the notice, and supported such notice as against the as one of the last, be having entered his appeal at the next session after that rate, and

rates was quashthe last rate was quashed, on the ground that the plaintiff was not the was void, and occupier. Under these circumstances it was insisted, for the plaintiff, that that the precise the warrant of distress was void, on the authority of the case of Milward v. rates, should have Caffin, (2 Bla. Rep. 1330), which was on action of replevin on a distress been demanded for a poor's rate; and Gould, J., there said (2 Bla. Rep. 1331), that it had

of the plaintiff

previous to the been fairly and candidly conceded in the argument, that where a warrant issuing of such was to levy an aggregate sum, composed of several rates, if one of the rates warrant. were illegal, the whole warrant was void. The jury, however, found a verdict for the defendant, but the learned Baron reserved the point, as to the validity of the warrant, for the opinion of the Court. After hearing Lens, Serj., Gibbs, C.J., held, that in this case it was necessary that the sum actually due from the plaintiff for poor rates should be demanded previous to the levy, and that it was distinguishable from a distress for rent; that whatever might be due as the amount of rent, might be distrained, and that although a larger sum were distrained for than was actually due, that the lessor might still be supported; as if a distress were made for three years' rent, and two only were due, still the avowant was entitled to recover for the two. So, if a person bring an action for goods sold and delivered, to the amount of 1001., still he may only be entitled to recover 40l. But in neither of these cases is a precise and previous demand necessary, as here, where the party distrained on is entitled to know what sum is actually due for poor rates, previous to the issuing of the warrant under which the levy is made. Rule absolute. Rex v. Uttoxeter, 2 Str. 932; 1 Bott, 305; 2 Nol. P. L. 589. Upon Rate not remov.

able by certiorari. great debate, and search after precedents, it was held that a certiorari would not lie to remove the poor rate itself, the remedy being to appeal, or by action when a distress is taken, which will answer all the ends of justice in coming at an equal rate; whereas if the rate itself should be required to be sent up, great inconveniences and delays would follow.

Rex v. The Justices of Salop, 1 Sess. Ca. 201; 2 Str. 975; 1 Bott, 306; 2 Nol. P. L. 589, by the name of Rex v. Shrewsbury. The true objection against a certiorari is, that if rates were removable, the poor might be starved whilst the rates were depending; and therefore the Court, from the great inconvenience that would attend the removal of rates, have refused to do it.

(Thirteenthly)-Rate for taxing others in Aid. By 43 Eliz. c. 2, s. 3. “If the said justices of peace do perceive, that the Thirteenthly, Of inhabitants of any parish are not able to levy among themselves sufficient sums rale for taxing

others in aid. of money for the purposes aforesaid ; that then the said two justices shall and may tax, rate, and assess, as aforesaid, any other of other parishes, or out of

Hundred contriany parish, within the hundred where the said parish is, to pay such sum and

butory. sums of money to the churchwardens and overseers of the said poor parish, for the said purposes, as the said justices shall think fit, according to the

A vill is within


Thirteenthly, Of intent of this law: and if the said hundred shall not be thought to the said rate for taxing justices able and fit to relieve the said several parishes not able to proride for others in aid. themselves as aforesaid ; then the justices of peace, at their general quarter

sessions, or the greater number of them, shall rate and assess as aforesaid, any other of other parishes, or out of any parish within the said county, for the purposes aforesaid, as in their discretion shall seem fit."

That the Inhabitants of any Parish are not able.] Anon. Fol. 25; 1 Nol. the equity of the P L. 241. The case was this :—There were two vills in one parish, and

the justices recite in their order, that one of the vills was very rich, and the other very poor; and further, that the vill which was rich, did not pay half so much to the poor as the poor vill did. Objected, one vill ought not to contribute to another, because the statute mentions parishes only. 2. The reason given for charging the rich vill to contribute to the poor vill is uncertain ; viz. because they do not pay half so much as the poor vill does, without shewing that either vill pays any thing to the poor.—By the Court : As to the first objection, surely this will come within the equity of the statute, though the statute only makes mention of parishes; and it is highly reasonable that one vill should contribute to another in the same parish. But this order must be quashed on the second objection, for the uncertainty.

Then the said two Justices.] Rex v. Griesley, Sett. f Rem. 259. The not rate in aid.

sessions rated the adjacent parishes: quashed; because the statute appoints it to be done by the two justices, and hereby they prevent an appeal. See Dimchurch v. Eastchurch, 2 Salk. 480.

The sessions can

The assessment must be by the justices, and they cannot delegate their power.


The rate in aid may be on particular persons.

The said two Justices shall Tax, Rate, and Assess.] St. Mary's v. St. Peter f. Paul's, in Marlborough, 2 Str. 1114; 1 Bott, 406. Two justices order the churchwardens and overseers of St. Peter and Paul's to assess, raise, and levy a sum towards the maintenance of the poor of St. Mary's. But the order was quashed by the Court; because the justices had delegated their power to the church wardens and overseers: whereas by the statute they themselves are to make the rate on all, or on particular persons.

In this case, a mandamus was moved for to the justices, to make a rate for the support of the poor of the parish of St. Mary's; which was opposed, because the parish officers ought to make the rate, and the justices are only to sign it. To which it was answered, that this motion was grounded on this clause of the statute; and thereupon a mandamus was granted, directed to the justices; and as this is a matter of right, they ought to make a return, 16 Vin. Abr. 416.

And the justices are to make the taxation, and leave it to the churchwardens and overseers to levy it, 2 Salk. 480.

Any other of other Parishes.] Resolved, that the justices may impose the charge upon any of the inhabitants of the neighbouring parishes, and are not obliged to put a general tax upon the whole parish. Comb. 309; 1 Vent. 350 ; Fol. 29.

Either particular persons, or the whole parish, Dimchurch v. Eastchurch, 2 Salk. 481.

An order for taxing one parish in aid of another under the 43 Eliz. c. 2, s. 3, was held well; although the two parishes, together with others, were incorporated for the maintenance of their poor, with fixed quotas of contribution between each other, under special officers, who were empowered to purchase land for the erection of poor-houses, and for a burial-ground ; there being a proviso in the act in general terms, that nothing therein contained should extend to repeal or lessen the power of justices of the peace, “ to tax parishes in aid of others by virtue of the 43 Eliz. as fully as if this act had not been made." Rex v. St Helen's, Worcester, 2 East, 417.

Rex v. Boroughfen, Fol. 29 ; 1 Bott, 405 ; 1 Barnard. B. R. 122 ; 1 Nol. P. L. 244. There was a taxation of several persons in a parish: Objected, that it should be of all the persons in a particular place or parish. The

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