The sums thus assessed amounted on the whole to 9l. 14s. 3d. It was proved by the defendant, at the trial, that Horace Watson had paid the water-rate for all the houses in question, and that the witnesses had never heard of the said Isaac Watson; but such evidence was objected to by the plaintiff, and the objection was reserved. The house of which Richard Oliver is stated to be the occupier, in the presentment and rate, is the house in which the distress was made. The appointment of the defendant was made by the Commissioners in the following terms:-"We do hereby authorize, depute, and assign you the above-named collector, to be gatherer of the tax-rate and assessment contained in the preceding pages of this book. And these are, therefore, in his Majesty's name, to authorize, depute, and assign you the said collector forthwith to ask, demand, receive, collect, and get in the several sums of money, of and from the several persons as they are added to their respective names, and are in the said rate contained, and to make payment thereof to the Bank of England, to the account of this Commission. And in case any person or persons shall neglect or refuse to pay his, her, or their proportion of the said rate, upon demand, then you the said collector are to summon such defaulters to appear at the Court of Sewers, to show cause why they neglect and refuse to pay the same, to the end that such further proceedings may be had therein as to law doth appertain. In witness whereof &c. Dated this 7th of October, 1831." The summons to Horace Watson, to show cause why he should not pay, was in the following words :- " To Mr. Horace Watson. "Sewers, Middlesex, Tower Hamlets, "By virtue and in pursuance, and for the enforcing of a certain ordinance and decree of Sewers, bearing date the 23rd September, 1831, and made under and by virtue of His Majesty's Commission of Sewers for the Tower Hamlets, under the Great Seal of Great Britain, bearing date at Westminster the 4th December, 1830, directed to certain Commissioners therein named ; I being duly deputed and assigned on this behalf, do hereby summon you to be and appear before His Majesty's Justices and Commissioners of Sewers for the Tower Hamlets, or such of them as shall be then present and acting under and by virtue of the said Commission, on Tuesday the 25th September, 1832, at twelve o'clock at noon, at the office of Sewers, No. 15, Great Alie Street, Goodman's Fields, within the limits aforesaid, at a Court of Sewers then and there to be holden, to show cause why you neglect and refuse to pay the sum of 91. 14s. 3d. duly rated and assessed upon you, in and by a certain presentment, inquisition, and assessment duly made by a Jury of Sewers on the 26th August, 1831; and ratified and confirmed by the said ordinance and decree in respect of certain lands, tenements, hereditaments, and premises belonging to and occupied by you, situate in the parish of St. Matthen, Bethnal Green, in the Spitalfields and Wapping level, within the limits aforesaid, for and towards the charges and expenses of the support, maintenance, reparation, reformation, and amendment of the sewers of the said level; the works done, and to be done, in, upon, and about the same, and the incidental expenses of the said Commission; and why the said Commissioners should not, in default of such payment, decree and ordain from you payment out of such lands, tenements, hereditaments, and premises, or King's Bench. SABOURIN NEALE. SABOURIN v. King's Bench. make and issue a warrant of distress to levy the said sum on your goods and chattels, together with the expenses attendant thereon, or take such other proceedings against you as the said Commissioners shall, in their discretion, think fit, and pursuant to the said Commission, and the provisions of the statute in such case made and provided. If you do not attend, the said Commissioners will proceed against you as if you had appeared. Dated this 19th September, 1832. NEALE. "Please to bring this summons with you. (Signed) "Thomas Neale, Collector." A letter of the date of the 27th March, 1832, written by the said Horace Watson, was put in; and, after objection, admitted by the judge, subject to the objection. The plaintiff was distrained upon for 91. 14s. 3d. on the 12th April, 1833, the same being the amount claimed in respect of all the houses assessed as the property of the said Horace Watson. The plaintiff then put in the warrant under which defendant seized the goods of the plaintiff, which recited, that "Horace Watson was duly rated and assessed in the sum of 97. 14s. 3d. in respect of certain lands, tenements, &c. held by him, situate in the parish of St. Matthew, Bethnal Green, in the Spitalfields and Wapping level, within the Tower Hamlets,, for and towards the charges and expenses of the support, maintainance, &c. of the sewers of the said level; the works done, and to be done, in, upon, and about the same, and the incidental expenses of the said Commission; and that it appeared, upon the oath of Thomas Neale, collector of the said rate and assessment for the said level, that demand hath been made for the said sum of the said Horace Watson, but that the said Horace Watson hath neglected and refused to pay the same, and that the same still remains due and unpaid. And whereas it hath been duly proved to us, that the said Horace Watson hath been duly summoned to show cause why he hath neglected and refused to pay the said sum, and why, in default of such payment, he should not be proceeded against according to law; but the said Horace Watson hath not appeared in pursuance of such summons, and hath not shown any good and sufficient cause why the said sum should not be paid. These are, therefore, in His Majesty's name, to will and require you forthwith to make distress for the said sum of 97. 14s. 3d. of the goods and chattels of the said Horace Watson; and if within the space of five days next after the making of the said distress, the said sum of 91. 14s. 3d., together with the reasonable costs and charges of taking and keeping the said distress, shall not be paid, that then you do sell the said goods and chattels so by you distressed, and levy the said sum of 97. 14s. 3d., and the reasonable costs and charges of keeping the said distress and sale thereof, &c., and that you restore the overplus, &c. to the said Horace Watson upon demand; and if no such distress can be had and taken, then you, the said Thomas Neale, are hereby required to certify the same to us, to the end that such further proceedings may be had therein as to law doth appertain. Given, &c. this 12th February, 1833." This warrant was duly signed and sealed by the Commissioners therein named. A notice of the distress was also put in. Several questions were intended to be raised on this case, but as the judgment of the Court was confined to the single point, that the documents set out in the case showed a special authority to have been conferred on the collector, which special authority, it King's Bench. was admitted, he had exceeded, unless he could justify under his general authority as collector: the report of the arguments has been confined to that point. Kelly, for the plaintiff.-Even if it is assumed, that the collector might, on the authority of Callis on Sewers (a), upon his general authority as collector, distrain without a warrant, (which is positively denied,) it is clear that he cannot justify, on that general authority, when he has received a warrant. His general authority as collector is then restrained by the specific terms of the warrant. Here he had a warrant, which directed him to distrain upon the goods of Mr. Horace Watson, and to sell the same in default of payment. He has not obeyed either of these directions. The defendant cannot here justify what he has done under the issue taken upon the replication, for that replication only puts the defendant upon the proof of his plea; and the justification in the plea is under the special authority given him by the Commissioners, which authority he has not followed. Sir W. Follett, for the defendant.-It is clear that a collector of sewersrate may distrain by virtue of his general authority. The passage already cited from Callis on Sewers proves that position. In another place the same doctrine is supported. In speaking of the sale of goods seized, Mr. Callis takes a distinction between distraining and selling goods, and says, "the bailiffs who distrain cannot ex officio, without a special warrant first directed to them for that purpose from the Commissioners, make sale of goods distrained (b).” The restriction here said to exist, as to the power of the collector to sell without a warrant, shows, that at that time it was considered clear law that he might distrain without such an authority. If, at the time of the distress, there was a good right to distrain at all, that is sufficient. It is clear, that, at ali events, the defendant might distrain the plaintiff's goods for so much of the rate as was assessed upon the house inhabited by the plaintiff. The verdict, therefore, must be entered for the defendant, for he was justified in distraining for 7s. 6d. ; and the question raised on this record is not as to the amount of the distress, but as to the right to distrain. If he is justified as to the distress for the 7s. 6d., he is justified as to the whole; for, having entered upon a good title, he may justify all he has done as done under it; Lucas v. Nockells (c).-[Patteson, J.-How did you prove your plea?]-By showing the appointment of the collector.-[Patteson, J.-That is, by showing an appointment of him to collect this particular rate, and limiting his authority as to the rate, and the person from whom it was to be taken. It cannot be said, that the Commissioners cannot prevent the collector from distraining upon any particular individual. Have they not done so here ?]No: they have in the fordinary way directed the collector to levy on the person assessed, but that is an enabling not a restraining direction; and the collector's general authority will enable him to distrain, though it may not to sell the goods of a stranger on the land assessed; Callis, 185-192. This rate is a charge on land, Rex v. Adams (d); and, being so, any goods found (a) Page 189, of the old edition; 214, of the 8vo. edition. (b) Callis on Sewers, 192. (c) 1 Clark & Finnelly, 438. SABOURIN บ. NEALE. King's Bench. SABOURIN V. NEALE. on the land may be distrained to satisfy it, under the general authority of the person appointed to collect the rate. Kelly, in reply. The judgment of the Court must be for the plaintiff. The distress is altogether illegal. No part of it can be supported. Whatever may be the general power of the collector, it is clear, that in this instance he derives all his power from two documents, which are now before the Court. It is impossible to say that they gave him any authority to distrain the goods of the plaintiff. The case of Lucas v. Nockell, therefore, does not in the least degree apply to this case. Lord DENMAN, C. J.-The facts before us might have raised some important questions for the future government of the Commissioners of Sewers, and of persons liable to pay rates. On the one hand, it is desirable that the Commissioners should not be defeated in their duty, and prevented from recovering rates which are properly due; while, on the other, it is equally desirable that individuals should not be charged much beyond what they are legally liable to pay. But this case is stated in such a way as not to raise a point of any consequence at all, except so far as to prevent persons from justifying under circumstances which give the appearance of a justification, but which in reality afford none at all. It is found that the plaintiff was distrained upon for the sum of 91. 14s. 3d. due from Mr. Horace Watson, and a warrant was issued to levy that sum. That is under the statute of Anne, under which the warrant could not be issued to authorize a seizure of the goods of the plaintiff, but of those of Mr. H. Watson. The first question then is, did this defendant receive that warrant from the Commissioners? It appears that he did; and that they appointed him the collector, and used large and extensive terms in giving him his authority; in which it is said must be included the power to distrain upon the premises. But I am not aware that the appointment of a collector by Commissioners of Sewers, does necessarily include the power of distraining goods for payment of the sewers-rate. It would require stronger authority than the opinion of any text writer, that he has any such general power. The authority given him here by the Commissioners is to receive from each person the sum of money set against that person's name. But whatever authority he might have to levy on Watson, he has none to levy on a person who does not fall within the description of those declared liable to the payment of these rates. His general authority, whatever it may be, is here expressly limited by the terms of his warrant. This is the short answer to the argument derived from his general character of collector, and to me it appears decisive of the present case. LITTLEDALE, J.-In this case the plaintiff is entitled to judgment. The warrant is only an authority to take the goods of Mr. Watson. I do not say that the collector may not have such a warrant as would authorize him to take the goods of the plaintiff, but that such a warrant was not given in this What was done here as if under the warrant cannot be justified by it. But then it is said, that the character of the collector authorizes him to make the distress, though not to sell the goods. How is this authority proved? He is proved to be a collector, and to have a general authority with respect to demanding the sums in question-he is to summon persons to attend at case. SABOURIN บ. NEALE. the next Court. Watson was summoned, but did not attend. Has the col- King's Bench. lector a right, by virtue of his office, to do more? The general authority of the defendant is disproved by the circumstance of the Commissioners giving him a special warrant to make a distress. But then it is said, that it must be taken that what he had done had been done under the general authority given him by the appointment of him by the Commissioners; but they have done nothing which compels us to consider him as vested with a general authority to distrain; for in fact they gave him a special authority, which itself did not enable him to do what he has done. Then it is said, that he may defend himself upon the principle of the rule as laid down in Lucas v. Nockells. I admit the full authority of what was decided in the House of Lords in that ease that you may seize under one authority, and justify under another. But the jury here found that the seizure was under and by virtue of the warrant. Though there might be an authority to seize, that finding does not show that the warrant which they found to be the instrument under which he seized, was such an authority. PATTESON, J.-It is said in this case, that a serious and important question was intended to be raised by the Commissioners of Sewers for the Tower Hamlets, and that this question was, whether a number of small houses, happening to be in the possession of one landlord, the Commissioners can rate the landlord, and distrain on any one of the tenants for a rate made on the whole of the property? and perhaps, also, the further question whether any officer of the Commissioners has a general power virtute officii to distrain? This is said to be their intention, and they set about effecting it in the most extraordinary way in which any person in this world ever did set about such a business. (His lordship here went through all the statements in the case, and all that had been done by the Commissioners.) They appoint a collector, and instead of giving him the authority which he might have under the statute of Henry 8, they direct him to collect money from the persons named in that particular rate. They give him a special authority alone. Expressio unius est exclusio alterius. If they choose only to give him an authority to receive and pay over, he can have no authority to distrain. What is the next thing? Mr. Horace Watson is summoned-he does not appear-then a warrant goes to the same person, to distrain his particular goods, and to sell them. That is under the statute of Anne, which only gives them power to issue such a distress against the persons whose names are placed in the rates. The collector has not any general authority except under that instrument which appointed him collector-that is, an authority only to demand and receive, and not to distrain. The special warrant of distress is to seize the goods of Horace Watson, and yet the collector takes those of the plaintiff. The justification is not in any way made out, and judgment must be for the plaintiff. WILLIAMS, J., concurred. Judgment for the plaintiff. |