land-tax books of the parish, and that he, Veal, believed it to be notorious in the parish that Spencer was such owner; that Andrew George Bachhoffner, a vestryman, and an active man in the affairs of the parish, was immediate lessee of Spencer, of certain messuages contiguous to some of those which were the subject of this application, and paid rent to him for the same; that some of the houses now in question were let at upwards of 351. each, the tenants, by the terms of the contract, paying all parochial and other taxes; that others were let at rents below 30%. upon the same terms as to taxes; that Spencer was a person of substance, and that Veal had paid over to him the rents collected before he was summoned. Spencer resided in Wales. It did not appear that there had been any appeal against the rate. Sir John Campbell now shewed cause. The Court will not interfere, unless it be clear that the warrant, when granted, will be lawful. But it would be clearly unlawful, on two grounds. First, although the yearly assessment of these houses is under 30l., yet part of them are let at higher rents, and therefore do not fall within sect. 92.: for it cannot have been intended by the legislature to enable the vestry, by a false assessment, to bring any houses which they may choose within the effect of the clause, whatever be their real value. Secondly, Veal ought not to be called on under sect. 93., the real landlord is "distinctly" and "certainly known" to the vestrymen: the property is known by the name of the owner, who is rated for it in the land-tax book; and one of the most active vestrymen is his immediate lessee. Again, the magistrates will not be compelled to issue their warrant, if there be another remedy. But the ninety-sixth section gives a remedy by action of Rr 2 debt, 1835. The KING against DYER. 1835. The KING against DYER. debt, bill, plaint, or information, in the courts of Westminster, or the courts of request. Thesiger and Adolphus contrà. By sect. 88. the magistrate is "required" to grant the warrant, against any person "made liable;" and the distress is to be levied of the goods within the parishes" or elsewhere," shewing that the absence of the party was contemplated. This is not a case where the legality is doubtful. As to the first objection, the words of sect. 92. leave no doubt that the actual assessment is the only criterion. If the landlord be improperly assessed, the remedy is by appeal under ss. 112, 113. As to the second objection, the ninety-third section fixes the liability on the collector, "to prevent any dispute," where the owner shall not "declare himself," or be "distinctly or certainly known." Now, Veal did receive these rents, and he does not appear to have paid them over at the time of receiving; so that he is clearly the collector within the meaning of the section. Nor is there any pretence for saying that the owner was declared or known. The name of the estate proves nothing: and Bachhoffner's personal knowledge that Spencer is the owner of houses near the houses which are the subject of this application, is neither distinct nor certain knowledge that he is owner of the latter, nor is it the knowledge of "the said vestrymen." Besides, if the wrong person be rated, he may appeal. The remedy given by sect. 96. is not exclusive, but cumulative. There are no exclusive words in the section itself, and the section preceding gives the remedy by distress upon goods of occupiers, where the occupier is not the party rated: that would include the case of houses assessed as mentioned in sect. 96., so that it is impossible to con strue strue that section exclusively. Again, the form of the distress warrant, in sect. 100., comprehends the present case. If, then, the remedy in sect. 96. be not exclusive, the fact of the cumulative remedy existing is no reason for not granting the distress warrant, especially as the remedy by action is very usually illusory, in the case of rates. Lord DENMAN C. J. By this act a large and extraordinary power is conferred, of calling on the collector; and there may be good reason for making him liable, because he is in the receipt of the profits. But before we require the magistrate to exercise the power given him, of issuing his warrant, we must see that the power exists beyond a doubt. Now I doubt as to all the points. It is questionable whether the assessment, if not fairly made on the rent, creates a liability in the landlord, even although the words of the act (sect. 92.) are merely "assessment or valuation." Then, besides the power of distress, a power is conferred by the statute, of charging the estate, and recovering by action. Where such a power as that exists, we cannot, in the exercise of our discretion, compel magistrates to act, unless we see very clearly that the act would be legal. It seems to me that the magistrates have done rightly in this case. 1 LITTLEDALE J. We must not issue this mandamus unless the case be quite clear, or unless it appear that there was caprice on the part of the magistrates, or something at least to shew that the refusal was not bonâ fide. If they have acted bonâ fide, it must be a very strong case to induce us to issue a mandamus. The justices are not indemnified. It is a pity that 1835. The KING against DYER. 1835. The KING against DYER. acts of parliament like that in question do not contain a clause indemnifying magistrates for whatever they shall do in obedience to the mandate of this Court: the Court would then take upon itself to see whether the thing required were within the provisions of the act. WILLIAMS J. We ought to be very cautious how we compel magistrates by mandamus to enforce a remedy by distress; and if that were done here, Mr. Veal would be placed in a strange position, the landlord being out of the parish. The parties liable under stat. 43 Eliz. c.2. s. 1. and s. 4., are the occupiers. Here I am not sure that we ought not to have more distinct information that the landlord was not known; I should conjecture, that the vestrymen did know him. At any rate, it would be a dangerous step to grant this mandamus. Sir John Campbell applied for costs, on the ground of the application being against magistrates. [Littledale J. It does not appear that cause is shewn on their behalf.] Then the Court will give costs simply on the ground of the decision, which is complained of, being upheld. Thesiger and Adolphus contended that it was a fair point for discussion. Per Curiam. This is not a case for costs. Rule discharged, without costs (a). (a) See the next case, Rex v. Trecothick, antè, p. 405., and Rex v. Mirehouse, post, p. 632. 1835. [The following case, decided in Trinity term 1835, may conveniently be added here.] The KING against YARBURGH GREAME, Esquire. Friday, BY Y a rate made under the Highway Act, 13 G. 3. c. 78. s. 45., for repairing the highways in the parish of Kilham, in the East Riding of Yorkshire, and signed and allowed January 4th, 1834, by two justices of the riding, James Hall was rated at 23l. 17s. for a farm-house, &c. at Swaythorpe. Payment having been demanded and refused, Hall was summoned before two magistrates of the riding, at Bridlington, in February 1834; but they refused to issue a distress warrant under s. 67. of the act, on the ground that, by an act (11 G. 3. c. 44. private), "for dividing, inclosing, and allotting the several open fields, lands, and grounds, within the township of Kilham on the Woulds, in the county of York," it was enacted, that the township of Kilham and the roads therein should be set out by commissioners, and that the roads so ascertained should be repaired by the inhabitants of the township in such manner as theretofore had been accustomed, and as by the laws of the land the then May 29th. The Court will magistrate, by not compel a mandamus, to issue a distress warrant for a parish highway rate, under st. 13 G. 3. c. 78. ss. 45., 67., made upon the occupier of lands within his district, if in the magisit appear that, trate's belief, and in fact, there is a legal doubt as to the occupier being liable to con tribute to the repairs of the parish high ways, and that the magistrate likely to be is sued if the warrant be granted and acted upon : and this, al though the oc cupier has not present highways then were or had been repaired: that Swaythorpe was not included under or affected by appealed against the the award of the commissioners, but appeared thereby rate. to be treated as no part of the township of Kilham; and that the rate was partly for repair of the roads of the township. |