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London, England, 1841-02-24 00:00:00

.Commins against Massam, in Marsh's Reports, page 196
which determined (18th Charles the First) that orders and
proceedings of Commissioners of Sewers can be removed 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 Duke of Newcastle against Clark
and others (Taunton, vol. 8, p. 602), thus spoke in the judg-
ment—lhe 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 occupier 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 to 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 benefit;
and in reference to Rooke's case, in 5 Coke's Reports, he
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 judgments
which I have quoted was recently delivered in the Court of
Queen's Bench by Lord Denman, in the ease of Emmerson
and Saltroarshe 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 or rate upon any hundreds, towns, or the inha-
bitants in general, but upon the first presentment and judg-
ment to charge every man in particular according to the quan-
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
tax 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.
91, and the Level of Hull case, 2 Strange 1114. The first of
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 Reports

Anno Dom. 179.3. Fifth Edition. By Leach.

Bow v. SMITH.—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 lie brought
several actions against the now plaintiff in their names; and the
said assessment being not strictly legal, because it should be as-
sessed on every particular tenant, proportionable to the damage he
might sustain, therefore the warrants and distresses were not good,
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-
sioners 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 had
good right to bring actions for the money extorted from
him.—The Lord Chancellor would not help in this tase :
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 make 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.

'fhi; ease presents extraordinary features. It has been dis-
covered that it was a case in a Court of Equity, seeking relief
from the consequences arisinc, from the construction of the
Statute of the 23d Henry VLI., by a competent tribunal, the
Court of King's Bench. The Commissioners 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. 'f he Lord Chancel-
lor (Al acclestield) 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 rent 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 Com-
mission was the level of Hull case, and so 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 case the Learned Gentle-
man said he did not think he 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 Level of Hull. An
order of Sewers was made for levying 9d. on 1,312 acres, to be
paid to the clerk to he applied towards defraying of charges in
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
Xiiigri Bench, what is-the "objection? It (night to have'been
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 would that avail when in
the very last case quoted, actions were maintained, and da-
mages given against the Commissioners fbr enfor:ing a rate made
on the land without any owner or occupiers being rated. I think
I may now safely proceed to my next propositiod, 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 thereon
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, make
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 ads ised special law of Sewers for sale of goods dis-
trained upon a just occasion, before they tired any warrant
ex subito to the bailiffs for any such purpose. But now herein
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 can 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 chattels
of other men be levant and couchant, on the ground cessed to
the repairs ; for I hold it not consonant to reason, nor that it
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 effect
is Callis, m. p. 125:—" So, in our case of Sewers, if the
goods of one which was not subject to the tax or sess imposed
were taken, he might have his action of trespass against the
distrainer, and should recover his damages thereby." Let us
now pass from the year 1645, when Callis first appeared, to
the present time, and learn the judgment of Lords Denman,
Patteson, Williams, and Coleridge, in the case Pocock against
O'Shaunessy and others, Adolphus and Ellis, Vol. 6, page
807. Trespass for breaking and entering the plaintiff's shop
and premises, and seizing and converting a sack of flour
of the plaintiff's, plea by O'Shaunessy and Smith jus-
tifying under a Coitimission of Sewers, according
to the statute 23 Henry VIII., c. 5, pleas by Francis and
Bacon, not guilty, and a justification as above, replication to
the special pleas de injuria. Joinder. The cause was tried
at the Middlesex sittings after term Michaelmas 1834. It ap-
peared that the goods svere"the plaintiff's, and were distrained
for a Sewers'-rate in a house rented by him of Tebbutt, the
attorney in the record in this action. The house was one of
four, let out by Tebbutt, and jointly rated to the Sewers'-rate
in the sum of 1/. 4s. Tebbutt was the party assessed. Being
called upon for the rate for the four houses, he tendered 6s. as
the rate for No. 3, the house occupied by the plaintiff. The
collector refused to accept this separately, and Tebbutt was
required by summons to show cause why the 11. 4s. was un-
paid. No cause being shown, the defendants, Francis and
Bacon. issued a warrant to levy the 11. 4s. upon Tebbutt's
goods, under colour of which warrant, O'Shaunessy, a col-
lector, and Smith, a Broker, seized a bag of flour, the property
of the plaintiff, in the house occupied by him. The que.tions
in dispute were whether or not the rate on the four houses
could be levied as a joint rate on the premises held by the
plaintiff, and whether, under the present warrant, or any other,
goods bein,, on the premises, of which Tebbutt was the land-
lord, could be distrained for this rate, though they might be the
property of another person. The plaintiff had a verdict for
151., subject to the opinion of this Court on a specific case, the
question in which was whether or not this action could be
maintained under the circumstances against the defendants, or
either of them. The Court held (Nov. 19, 1836) that the
warrant did not justify O'Shaunessy and Smith in seizing the
plaintiff's goods, but that the Commissioners who had acted
regularly in the exercise of their functions were not liable.
The Master taxed the plaintiff's damages and costs at
1031. a pretty expensive affair to the rate-payers who
were thus made the innocent victims of bad legal advice.
My next proposition is very short, because the Commissioners,
during these proceedings, have been made aware t hat the
opinions of the Attorney-General, and Solicitor-General, and
I am of opinion that the Royal
Sir Frederick Pollock are against them. If you reject my
this
,Commission, dated 13th Nov
amendment to day, and determine to sign the decree, you rate
salion of the Sovereign are not liable
the Royal palaces in the
sac4uajlobocncutpaatmiapnbeollf, tbliaeovereign.
given his
oTphineioAnt,toarnndeyp-rGinetenderabby
em-
pabeira,cleBs3i9n,
tiiniewalicticuhalhoeccsuapy
to be rated to the Sewer's-rate." The Solicitor-General, Sir
Thomas Wylde, in his opinion, dated April 2d, 1840, and
printed by this Commission, says, " I am of opinion that the
palaces are not liable to be rated under the Bill of Sewers."
And Mr. Justice Best, in Netherton, and Ward, 3 Barnewall
and Alderson, p. 21, "I de not think that the remedy by dis-
tress is applicable to the case of the Crown, or that the
stores of Government can be taken by that means."
Probably Buckingham Palace or Kensington Palace can
be decreed away from her Majesty by this Commission.
Sir Frederick Pollock has also given most decided opinions
upon important parts of the proceedings of this Court as to
sending the Jury out of court to take the evidence in secret ;
upon which this presentment is founded, and also against the
power exercised by the Commissioners (in the most capricious
way) in altering the presentments of the Jury. In two cases
almost fo lowing each other, both upon the valuations upon
oath of the professional valuator!. I allude to the Dissenting
Chapel on Paddington Green, in which the person who ap-
peared was sworn as to the cost of the building, and rated
outlay, added
upon 5 per cent. cost upon the to the ground
rent actually paid. The next, the West London Cemetery,
returned to the Court upon oath by the professional valuators
at an annual rateable value of 2,320/,, -laced by this Court upon
evidence not upon oath, to 245/ per annum. There
is another anomaly in these extraordinary, proceedings,
the professional valuators returned on oath that Hyde-park
and Kensington-gardens were worth 301. per acre rateable
value ; the Jury in secret struck off five-sixths of this valuation,
leaving Hyde-park and Kensington-gardens at aan acre.