The Sun.
London, England, 1841-02-24 00:00:00

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cutters, goles, sewers, trenches, and other the said impedi-
ments and annoyances, and all those person. and every
them, to tax, assess, charge, distrain, punish, &C." Section
—" Provided always and it is enacted, that if any person
persons being assessed or taxed to any let or charge for
. ands, tenements, or hereditaments, do not pay the said lot .
charge, &c. &c." So much for the " Bill of Sewers.
Lord Coke's Reports supply the earliest and most imporiarn
judicial decisions on the Bill of Sewers, and in the Isle of Ely tip"
.1 11 „..
case, the seventh year of James the First. The judgment of '11.11445A
the Court is thus laid down (10 Coke):—" It was also re-
solved that none could be taxed towards the reparation but
those who had prejudice, damage, or disadvantage by the
said nuisances or defaults, and who might have benefit aid
profit by the reformation or removing of them i also, the tax
assessment and charge ought to have these qualities :—First,
it ought to be according to the quantity of their lands, tene-
ments, and rents, and by the number of acres and perches.
Second, according to the rate of every person's portion, tenure,
or profit, or of the quantity of the common of pasture, or of
fishing or other commodity. And, therefore, it was clearly r.!--
solved that the said tax, generally of a several sum in gross
upon a town, is not warranted by their commission, but it.
ought to have been particular, according to the express words,
upon every owner or possessor of lands, tenements, rents, &c.,
observing the qualities aforesaid." The celebrated case of
Commins against Massaro, in Marsh's Reports, page lthi
which determined (18th Charles the First) that orders and
proceedings of Commissioners of Sewers can be rettioved into
the Court of Queen's Bench by writ of certiorari, and in that
important judgment it is laid down " that they may
charge the lessee or lessor at their discretion, for the statute
saith ' owners or occupiers.' " Lord Chief Justice Dallas, in
the celebrated case of the Dake of Newcastle against Clark
and others (Taunton, vol. 8, p. 602), thus spoke in the judg-
ment—'l he Commission describes the persons who are to con-
tribute to the charges." In the case so much talked of in
this Court, Netherton v. Ward, Chief Justice Abbott held
that the plaintiff was liable, because he was the ocoupier of a
house in the district, and so did Holroyd. Best also held that.
the statute Henry VIII. had for its object to tax all persons
equally. In the King v. Commissioners of the Tower Ham-
lets, B. and C. 9, p. 17 et seq., Lord Tenterden, in delivering
the judgment of the Court, held " That it is competent for.
persons acting under this Commission tp subdivide their dis-
tricts and rate the inhabitants of separate parts separately', so
that the inhabitants of each part may contribute to the ex-
pense
of maintaining those works only by which they derive
benefit." The principle has always been laid down that no
person is to contribute to the expense except those we bencAt -
and in 'reference to Rooke's case, in 5 Coke's Reports, hi.
showed that it had been there determined that the 'tax
was to be there laid upon the occupiers of the 800 acres.
A very admirable summing up of these important judgment.,
which I have quoted was recently delivered in the Court of
Queen's Bench by Lord Denman, in the case of Emmersoe
and Saltmirshe and others. He commenced by reading the
words of the commission to inquire by the oaths of the honest
and lawful men of the shire, &c., down to the words " to be
had in the premises."—He then cited the Isle of Ely case, that
the tax ought to be on the owner or possessor. He then cited
the judgment of Lord Chief Justice Popham.—" That they
cannot lay a tax er rate upon any hundreds, towns, or the inha-
bitants in general, but upon the first presentment aftd 'judg-
ment to charge every man in particular according to the quail-
tity of his land or common." He referred to several cases de-
cided in the King's Bench from the year 1609 to 1649, in
which the same rule guided the judgments of the Court.
It is upon such solid foundations as these commencing 310
years ago, with the solemn decisions of the Court of Queen's
Bench down to the present period, that I take my stand in op-
position to the doctrine " that the Commissioners impose the
'ax upon the land, and are not bound to inquire whose pro-
perty it is, or to regard any question of ownership or occupa-
tion." Having, as I think, irrefragably proved the affirmative
of my proposition, I will endeavour to overturn the foundation
upon which the legal advisers of this commission .do affirm
the doctrine. They cite two great cases, Bow v. Smith, 9 Mod.
94, and the Level of Hull case, 2 Strange 1114. The first of

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they excluded from the decree all value, they would go against
both presentments.' It was no excuse in an appeal fur that
Curt to shelter their own ignorance under that of the Jury.
The Court should exercise its own judgment, and he thought
should fall back on the previous presentment.
The question being put, there appeared on the show of
hands—
For the original motion 4
For the amendment
Mr. LESLIE not having voted on the question, called upon
the Chairman to give the casting vote, whlch he declined to do ;
he celled for a second divi.ion, the parties voting movitig to the
right and left cf the Chair, the greater p,rtion. of the Commis-
sioners going below the bar and out of the room. The result
was—

these a few words will be sufficient to show is no authority at
all, and in order that the legal gentlemen shall not say that a
layman misquotes the case, I will read the whole of it.
- IN CHANCERY,
Vol ix., pages 94-5. 1795. Easter 10 G. 1. Modern ReportF,
Anno Dorn. 1723. Fifth Edition. By Leach.

Bow a. Smart. —The Commissioners of Sewers assessed all ti .e
lands from such a place to such a place, in the Level, to raise money
to build a new sluice, and by warrants directed to the plaintiff, ap-
pointed him to collect the money of the owners and occupiers of
the said lands, who, by virtue therefore, made several distresses,
and levied money of the defendant's tenants, for which he brought
several actions against the now plaintiff in their names; and the
said assessment being not strictly legal, because it should tio as-
sessed on every particular tenant, proportionable to the damage he
might sustain, therefore the warrants and distresseS were not goal,
and so the plaintiff could not defend himself at law, but a verdict.
passed against him. And thereupon he exhibited his Bill to su-
persede those actions suggesting this matter, and that the said
actions were vexatious. The defendant insists that the Commis.
sinners had no power to tax him, for that there was an old sluice
near the place where the new one was intended to be built, which
was sufficient to secure all the Level; and that the new sluice,
when built, would be of no manner of advantage to him, and
consequently he ought not to be contributory to the charge
of building it, and therefore that both he and his tenants bast
good right to bring actions for the money extorted from
him.—The Lord Chancellor would not help in this case:
for if he did, then the orders of Commissioners of Sewers,
and of the Sessions, would be made in this Court.
Now, here the assessment was wrong, and money was levied by
means of a wrongful assessment, which ought to be refunded, and
a new assessment made; and the right way of making it, is to
assess the particular lands according to the danger they lie in, and
that it is not necessary to name the owner or occupiers of such
lands, for the Commissioners may not know them ; for if not nam-

ing the owners should snake the assessment void, there would be an
end of all assessments by the Commissioners of Sewers; therefore,
if that was the fact, it might be proper for this Court to interfere.
Note in Index to the volume " Commissioners." They made a
wrong assessment, and the complainant by their warrant distrained,
for which he was sued. This Court would not relieve.
This case presents extraordinary features. It has been dis-
covered that it was a case in a Court of Equity, seeking relief
from the consequences arising from the construction of the
Statute of the 23d Henry VIII. by a competent tribunal, the
Court of King's Bench. The VIII.,
of Sewers had
made a tax upon all the lands from such a place to such a.
place, and they enforced the payment of this tax upon land
upon the owners and occupiers of the lands taxed. It was re-
sisted, and several actions were brought, in all of which the
Commissioners were defeated. The Commissioners of Sewers
applied to a Court of Equity for relief. The Lord Chancel-
lor (Macclesfield) would not help in this case,. for if he did
then the orders of Commissioners of Sewers and of the Ses-
sions would be made in this Court. I submit these few words
were his judgment in the bill filed, and all the rest a mere obi-
ter dictum, and which was not judicially before him ; and if
it were, he. had no authority to decide a question of law.
The second case relied upon by the legal advisers of this Corn •
mission was the level of Hull case, and en strongly was it con-
sidered to support the case against the Royal Hospital at
Chelsea on the traverse of a presentment by which an utter
stranger in law is charged for the whole property, if you sign
this decree, that when he cited this ease the Learned Gentle-
man said he did not think lie need carry his case any further.
Again, to avoid the charge of misquoting this case I submit it to
the Court. Strange, vol 2, p. 1114, case of the Le eel of Hull. An
order of Sewers was made for levying 9d. on 1,312 acres, to be
paid to the clerk to be applied towards defraying of charges its
and about the execution of the commission, and though it was
objected that this should have been on the occupiers
according to 10 Coke, 139, yet the Court held this good,
for the words of the statute do not require it.
Very few words will destroy this as an authority. A rate is
made on 1,312 acres, removed by certiorari into the Court of
King's Bench, what is the objection ? It ought to have beeu
on the occupiers according to 10 Coke, 139. The Court
would not quash the rate on that objection, because the words
of the statute did not require it. But even supposing (and it
is but mere supposition, for it does not appear) the owners'
names were not on the rate, what t ould that avail when ire
the very last case quoted, actions were maintaintad, and da-
mages given against the Commissioners for enforcing a rate made
on the land without any owner or occupiers being rated. I think
I may now safely proceed to my next proposition, That the
necessary consequence of the preceeding erroneous doctrine
was another, the Commissioners having made a Sewer-rate,
without any regard to ownership or occupation, a legal distress
for the same can be taken, and any person's goods found thereora
may be sold for such rate. And this is so contrary to law,
that it is extraordinary how it could be so often and so confi-
dently repeated in this Court. I will take a very early
authority, and a very late one. The first, Callis, says, p.
192 :—" Yet herein 1 am of opinion that the bailiffs which:
distrain, cannot, ex officio, without a special warrant first di-
rected to them for that purpose from the Commissioners, snake
sale of goods distrained for a lay-tax, or cess of sewers ; and
I take it, it were a good warrant for the Commissioners to,
make an advised special law of Sewers for sale of goods dis-
trained upon a just occasion, before they direct any warrant
ex subito to the bailiffs for any such purpose. But now hereire
follows a matter of some consequence, and worthy the hand-
ling, that if by the laws of Sewers goods may be'sold towards the
repair of these works, as in my opinion they may, then whose
goods may be sold, is the question next to be decided; wherein.
to be brief, I am firm of opinion that no goods ran or ought to,
be sold by the power of these laws of Sewers, but only the proper
goods of the party sessed and taxed, though the goods and chat te.s
of other men be levant and couchant, on the ground cessed to,
the repairs ; for I hold it not consonant to reason, nor that :t
stands with any rule of law, that the goods and chattels of a
stranger should be absolutely taken away from him, and sold.
for the debt and default of another man." To the like etfeet
is Collis, m. p. 125 :—" So, in our case of Sewers, if the
goods of one which was not subject to the tax or secs i.mipptott
were taken, he might have his action of trespassteeb ag
s y " "Let n
distrainer, and should recover his
when Calks first appeared, tie
now pass from the year 1645.
accor
whj
judgment of Lords Denman,.
the present time, and learn
d Iphus and Ellis, Vol. 6, page*
O'Shaunessy and others,
Patteson, Williams, and Coleridge,A in the case Pocock againet:
807. Trespass for breaking - entering the plaintiff's slit
O'Sbaunessy and Smith
of the plaff's, plea aand converting a sack ef flew
tifying under a via, C. 5, pleas by Francis Ramie
to the statute 23 ission of Sewers,
Henrys justification as above, replication
and premises, and seizinmgmr
Bacon, not guilty, a.n • ..e Joinder. The cause • hub
as de ?Via' ' was tried/.
the special pie
ttings after term Michaelmas 1!!t34. It
at the .111iddlesex siods
were'the plaintiff's. anda'''
neared that the gnwere distrainer.
in a house rented b him of
for a Sewers'-
, rate in this action. yiTebbutt, -the,
attorney or the record e house was one 0C
out by Tebbutt,n and jointly rated to the Sewers'-ratet
four. let
of /. 4s. Tebbutt was the party
in the sun assess-d.
called upon for the rate for the four houses, he tendered 6s. ,71
the rate for No. 3, the house occupied by the plaintiff. Tine
collector refused to accept this separately, and Tebbutt
required by summons to show cause why the 11. 4s. was un.
paid. No cause being shown, the defendants, F • 2
Francis ante
Bacon, issued a warrant to levy the it. 4s. upon Tebbutt. is
goods, under colour of which warrant, O'Shaunessy,
a col.
lector, and Smith, a broker, seized a big of flour, the property
of the plaintiff, in the house occupied by him. Tho qrsestiong
in dispwe were whether or not the rate on the four house.'
could be levied as a joint rate on the premises held by this
plaintiff, and whether, under the present warrant, or any other.'
goods being on the premises, of which Tebbutt was the land.
lord, could be distrained for this rate, though they mightbe thus
property of another person. The plaintiff had a verdict for
151., subject to the opinion of this Court on a specific ease. 11,4-1
question in which was whether or not this action could be)
maintained under the circumstances against the defendants, et
either of them. The Court held (Nov. 19, 1836) that the:
warrant did not justify O'Shaunessy and Smith in seizing thet
plaintiff's goods, but that the Commissioners who had aete(l.
regularly in the exercise of their functions were not
and costs at
The Maser taxed the plaintiff's damages
Les
1031.. a pretty expensive affair to the rate-payers w.
t victims of bad legal adviote
were thus made the innoesenort,
short, because the
My next proposition is very _Commissioner,.
roceedines, have been made aware t hat tilts
during these p- land enera , Solicitor-General, anti
opinions (,f the Attorney-General,
G
are against them.
Sir Frederick Pollock lf you reject sly
amendment to day, and determine to sign the decree, you rate
the Royal palaces in the actual occupation of the Sovereign.
The Attorney-General, Sir John Campbell, has given hist
opinion, and printed by this Commission, dated 13th Novere.
in which he says,
her, 1839, "
I am of opinion that the Royal.
palaces in the actual occupation of the Sovereign are not liable
to be rated to the Sewer's-rate." The Solicitor-General.. Set
'1 homas Wykle, in, his opinion, dated April 2d, 1840, awl
printed by this Commission, says, " I am of opinion that tins
p&aces are Lot liable to be rated under the Bill of Sewers. I
And Air. Justice Best, in Netherton, and Ward, 3 Barnewal,,

TT is of importance to the Commercial world, to
TT
notice that, at a GENERAL MEETING of the
SOCIETY of GUARDIANS for the PROTECTION of
TRADE, which has been established nearly seventy years, it
was stated that during the last seven years not twenty of its
members had been defrauded. We can, therefore, most cor-
fidently recommend to all those who are subject to imposition
being practised upon them, to become members of this most
useful Society.

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LAW INTELLIGENCE.
ROLLS' FRB. 23.
BURLEY V. THE BURGESSES OF coorstTorr-UPON-mientocr.
This was a motion to dissolve an injunction which had been
granted ex parte, restraining the defendants from entering upon
certain land belonging to the plaintiffs, which they alleged
they had a right to do, under an Act for the lighting and im-
proving, &c., the township of ChorltOn-upon-Medlock.
Mr. Turner appeared in support of the motion to dissolve
the injunction, and Mr. Pemberton opposed it. The case was
not concluded when the Court rose.
• .