1840.

before the time of taking the distress, had been summoned Exch. of Pleas, by the commissioners to shew cause before them why he should not pay the said sum. The plaintiff appeared by his attorney, and objected to the validity of the rate, but did not shew sufficient cause in the judgment of the commissioners.

On the 21st of February, 1800, the Court of Sewers made an order, which was duly registered in the books of the said Court by the clerk of the commission, that in future two dyke-reeves should be appointed for the parish and hundred of Butterwick, one for North Butterwick, and one for South Butterwick and Butterwick Hundred, who should lay separate rates, and keep separate accounts of their respective offices. And this order had from thenceforward, up to the period of imposing the present rate, been acted upon; and the plaintiff, and the owners and occupiers of the plaintiff's lands in South Butterwick, have, since the year 1800, paid to the dyke-reeve of South Butterwick the separate rates levied in pursuance of the same order.

For all previous time within living memory, and also as far back as the records of the Court would shew, being more than 100 years, the whole parish and hundred of Butterwick had been jointly assessed to the repairs in question by one commixed assessment, applied by one sole dyke-reeve. There had been no presentment of a jury against South Butterwick and Butterwick Hundred, as a foundation either of the order or of the rate. The sea bank required repairs, and was a necessary protection to the lands, as well in North as South Butterwick and Butterwick Hundred; in fact, North Butterwick would, by any irruption of the sea, be laid deeper under water than South Butterwick or Butterwick Hundred, as it lay lower, and the drainage of all three was now, by a recent alteration, carried through North Butterwick to the Hob Hole Sluice. North Butterwick was nowhere assessed to the repairs of the bank.

WINGATE

v.

WAITE.

Exch. of Pleas, 1840.

WINGATE

v.

WAITE.

The following were the plaintiff's points for argument: First, The rate purports to be founded on prescription, which is disproved; secondly, The rate is bad, for omitting rateable property; thirdly, The rate is questionable in an action of trespass, there having been no presentment by a jury.

J. Hildyard, for the plaintiff.-The commissioners of sewers were bound to include in the rate all the lands within the ambit of the parish and hundred, unless they could shew a custom or prescription from time immemorial to exclude North Butterwick, and impose a rate on South Butterwick and Butterwick Hundred only; and here no such custom or prescription is stated in the case. The commissioners were therefore wrong in imposing on South Butterwick and Butterwick Hundred alone the burthen of repairing a dyke which was equally beneficial to North Butterwick, which ought, therefore, to be included in the rate. The law is laid down in Rooke's case (a) thus: "That the commissioners ought to tax all who are in danger to be endamaged by the not repairing, equally, and not him who has the land next adjoining to the river only; for the statute of 6 Hen. 6, c. 5, on which the commission of sewers is formed and specified, has precise words in the same commission, that no person, of any estate or condition, shall be spared: And if the law should be otherwise, inconvenience might follow; for it may be that the rage and force of the water might be so great, that the value of the land adjoining will not serve to make the banks, &c.; and therefore the statutes will have all which are in danger, and are to receive benefit by the making of the banks, to be contributory, for qui sentit commodum, sentire debet et onus; and the said statutes require equality, which well agrees with the rule of equity." In Emerson v.

(a) 5 Rep. 100.

1840.

WINGATE

Saltmarsh (a), it was held that a sewers' rate assessed in Exch. of Pleas, gross upon a township was bad. In Rex v. The Commissioners of Sewers for the County of Essex (b), Lord Tenterden says: "If no usage has prevailed, all those are liable who enjoy the benefit of the work.”

Wildman, for the defendant.-It would be a great hardship, if the omission of a single person in the rate were to render it void. [Lord Abinger, C. B.-This is the omission of a whole district.] The omission of a single person would equally render it void, if such a doctrine is to prevail as is contended for by the plaintiff; there can be no distinction in that respect. The question is, whether the omission of this district makes it so void as to render the commissioners liable in trespass. It is submitted that these collateral defects cannot be inquired into in an action of trespass. The rate being good in form, it is valid until it is quashed upon a certiorari. The commissioners of sewers, in making a rate, act in a judicial and not in a ministerial capacity, as was observed by Patteson, J., in Pocock v. O'Shaughnessy (c), and therefore are not liable to trespass. The Court of the Commissioners of Sewers is a Court of Record. Com. Dig. 'Sewers,' D.; Callis on Sewers, 128. Their power to hear objections is recognised in the recent statute for amending the law relating to sewers, 3 & 4 Will. 4, c. 22, s. 16. In the Duke of Newcastle v. Clarke (d), Burrough, J., says, "The commissioners are clothed with no individual rights as a consequence of their office; they act in their official capacity only. They are persons holding a Court of Record." Even assuming the rate, therefore, to be bad for want of a presentment, it would not render the commissioners liable to an action. The proper mode in such a case is to

(a) 7 Ad. & Ell. 206; 2 N.& P. 446.

(b) 1 B. & Cr. 477; 2 D. & R. 700.

(c) 6 Ad. & Ell. 807.

(d) 8 Taunt. 631; S. C. 2 Moore, 666.

บ.

WAITE.

1840.

WINGATE

v.

WAITE.

Exch. of Pleas, move that the rate be quashed on a certiorari. In Ackerley v. Parkinson (a), it was held that an action would not lie against the vicar-general of the bishop for excommunicating a person, although the citation was void, and the proceedings thereon had been set aside upon appeal. Lord Ellenborough there says, "If it were necessary, I should like to look at several of the authorities which have been cited. But the impression on my mind at present is, that this action is not maintainable, if the Ecclesiastical Court had a general jurisdiction over the subject-matter; and that it had general jurisdiction over the subject-matter, and in regard to some of the particulars mentioned in the citation, there can be no doubt." In Emerson v. Saltmarsh the point was not raised, whether trespass was maintainable; besides, the rate there was bad on the face of it. It has been held that no action lies against officers for a seizure to satisfy a poor rate, made by an order of justices acting within their jurisdiction. Nichols v. Walker (b), Milward v. Caffin (c). The commissioners cannot be liable in their individual capacity for what they did in their judicial capacity, having power under the stat. 4 Hen. 8, c. 5, s. 3, to hear and determine all matters relative to the making of a rate. In Garnett v. Ferrand (d), it was held that no action will lie against a judge of a Court of Record for an act done by him in his judicial capacity; and that therefore trespass would not lie against a coroner, for turning a person out of a room where he was about to take an inquisition. Whatever these commissioners have done in their judicial capacity cannot be impeached, until it is reversed by a competent tribunal. Stafford v. Hamston (e), Fawcett v. Fowlis (f), Dove v. Gray (g), Brittain v. Kinnaird (h). Under the Statute of Sewers, every person whose property de

1840.

WINGATE

v.

WAITE.

rives a benefit from the works of the commissioners is Erch. of Pleas, liable to be rated, although the benefit be not immediate, Soady v. Wilson (a); and in an action of trespass against the commissioners for levying a rate, if it appear that they had jurisdiction, the Court will not inquire whether the rate was proportioned to the benefit received from the sewage by the party rated. Lord Denman, C. J., says in that case, "Though numerous cases were cited in the argument from Keighley's case (b) to Rex v. The Commissioners of Sewers for the Tower Hamlets (c), the doctrine laid down is all uniform and undisputed as applicable to the present question. It rests on the principle, that every one whose property derives benefit from the works of the commissioners may be assessed to the rates they impose."

Hildyard, in reply.-The very foundation of the authority of the commissioners is, that they should inquire through the medium of a jury, and therefore a presentment was necessary. The 17th section of 3 & 4 W. 4, c. 22, provides, that nothing therein contained shall prevent any court of sewers from causing inquiry and presentment to be made by a jury; expressly recognising their authority to do so. Without a presentment, there would be nothing which could be traversed. In the case of The Commissioners of Sewers v. Wilmore (d), the Court refused a certiorari to remove a presentment for not repairing a sewer, on the ground that it did not appear that the commissioners had refused to allow the defendant to traverse it; but there there was no presentment, and nothing which could be traversed. These commissioners have entirely exceeded their authority, and are therefore liable to an action.

(a) 3 Ad. & El. 248; 4 Nev. & M. 477.

(b) 10 Rep. 142 b.

(c) 9 B. & Cr. 517; 4 Man. & R.

385.

(d) 2 Keb. 137.