Attorney General. v Sewell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1350
EXCH. OF PLEAS.
S. C. 6 Dowl. P. C. 673; 1 H. & H. 262; 7 L. J. Ex. 245; 6 Car. & P. 376. Reffered to Attorney-General v. M'cormack, [1903] 2 Ir. R. 517.
the attornEY-GiiNEUAL v. sewell. Exch. of Pleas. 1838.-Arrears of assessed taxes cannot be recovered by information in the nature of a popular action of debt, under the statutes 43 Geo. 3, c. 99, s. 45, and 5 & 6 Will. 4, c. 20, s. 13, inasmuch as the latter section provides that the amount " shall be recoverable from the person and persons making default of payment thereof, as a debt upon record to the King's Majesty." The proceedings ought to be by scire facias or extent, or information upon tho record itself. [S. C. 6 Dowl. P. G. 673 ; 1 H. & H. 2G2 ; 7 L. J. Ex. 245 ; 6 Gar. & P. 376. Referred to, Altm-ney-(}eneml v. M'Carmack, [1903] 2 Ir. R. 517.] Information filed by the Attorney-General, in Trinity Term, 6 W. 4, to recover certain arrears of assessed taxes. The first count stated that the defendant was indebted to his Majesty in the sum of HOI., which he owed to and unjustly detained from him ; for that before and at the time of making the assessment in that count thereinafter mentioned, to wit, on the 6th of April, 1834, at the parish of St. George, Hanover Square, in the county of Middlesex, to wit, at Westminster, the said William Sewell was a person chargeable to certain duties of assessed taxes payable to his said Majesty under and [78] by virtue of the statutes in that case made and provided, and that the said William Sewell being so chargeable as aforesaid, afterwards, to wit, at Westminster aforesaid, was in due manner, according to the form of the statute in such case made and provided, assessed as and for the said duties in a certain large sum of money, to wit, 401. for the year ending on the 5th of April, 1835, whereof the s;iid W. Sewell then and there had notice ; and that afterwards, to wit, on the same day and year aforesaid, at the parish aforesaid, to wit, at Westminster aforesaid, a certain warrant for collecting and levying the said duties, was in due manner, according to the form of the statute in such case made and provided, made, issued out, atid delivered to a certain collector of the said duties in and for the said parish. And the said Attorney-General further says, that the said sum of money, being the amount of the said duties assessed as aforesaid on the said William Sewell, has not been, nor could nor can be levied or collected under or by virtue of the said warrant, and that the same and every part thereof still remained and was due and in arrear and unpaid to his Majesty, and that the said William Sewell still owed the same and every part thereof to his Majesty, whereby an action hath accrued to his Majesty to demand and have of and from the said William Sewell the said sum of 401., part of the said sum of money above demanded. The second count was the same as the first, except that the arrears sought to be recovered were for the year ending the 5th of April, 1830. Plea, the general issue. Atj the trial before Lord Abinger, C. B., at the Middlesex Sittings after Hilary Term,! 1837, the parchment schedule of defaulters for assessed taxes for the parish of St. George, Hanover Square, made pursuant to the 49 Geo. 3, c. 99, s. 45, was produced from the Head Office of Stamps and Taxes at Somerset House, from which it ap-[79]-peared that the defendant was a defaulter in the years 1834 and 1835, of the sum of 291. 13s. 9cl., making together 591. 7s. 6rl., and which was proved to be signed by the Commissioners of Taxes. It was contended on behalf of the Crown, that these schedules were conclusive evidence against the defendant of the sums mentioned therein being due to the Crown, it having been enacted by the 5 & G Will. 4, c. 20, s. 13, that such schedules should be "conclusive evidence against any person named therein as making default'of payment, and against any parish &c. named therein as in default of the sum or sums mentioned in any such schedule, being due and 4M.&W.80. THE ATTORN KY-UENERAL V. SEWELL LS5L owing and in arrear and unpaid to bis Majesty, his heirs and successors, unless payment thereof shall be proved ; and every sunli sum shall be recoverable from the person or persons making default of payment thereof, as a debt upon record to the King's Majesty, his heirs and successors, with full costs of suit and all charges attending the same." Price, for the defendant, contended that this being a personal information against the defendant, it could not be supported, since no information in personam could lie founded on a matter of record, as this was declared to be by the l.'ith section of 5 & 6 Will. 4, e. '20 : That the proper proceeding to bring that record before a jury would be by scire facias, which would give the party an opportunity of replying to fcho case, and putting a defence on the record, which, by this mode of proceeding, he was precluded from doing : That this record was already a judgment, on which no common personal information, in the nature of an action of debt on a simple judgment, could be founded. The Lord Chief Baron was inclined to think the objection valid ; but a verdict was taken for the Crown for 591. 7s. 6d., subject to the opinion of the Court upon the objection taken, leave being given to the defendant to move to enter a verdict. [80] In Easter Term, 1837, L'rice obtained a rule nisi accordingly ; against which, in Trinity Term, The Solicitor-General and Amos shewed cause. The question depends upon the construction to be given to certain acts relating to the assessed taxes, viz. the 43 Geo. 3, C. 99, tha 4.'! G-eo. 3, c. 161, and the 5 & 6 Will. 4, c. 20 ; and the question is, whether, upon this information, which is in the nature of a popular action of debt, the Crown can proceed to recover these arrears of assessed taxes; the objection on the part of the defendant being, that as the statute 5 & 6 Will. 4, c. 20, s. I.'!, has declared that it shall be recoverable aa a debt of record, it can only be recovered by scire facias, or extent, or an information founded upon the record. [Lord Abinger, C. B. formerly the schedule, which you used in this case as conclusive evidence, was a record of the Exchequer, but, by the recent statute 5 & 6 Will. 4, c. 20, the schedule is to be carried to the Commissioners of Stamps and Taxes, and be deposited and remain in the Head Office of the Commissioners, and is a matter of record there ; and the statute declares that the sura due from the defaulter, as stated in the schedule, shall be recoverable as a debt upon record.] Notwithstanding that enactment, it is submitted that it is quite optional on the part of the Crown, either to proceed upon it as a debt of record, or in the ordinary mode of recovering any other debt due to the Crown. The first act is the 43 Greo. 3, c. 99, which is still in force subject to very trifling alterations, and which gives directions how the commissioners are to proceed to recover the money due under the act. By the 9th section of that act, the commissioners for executing the act, (who are not the officers of the Crown,) are in the several parishes to issue their precepts to certain persons to be assessors, and then they are to meet on a certain day annually, and appoint persons as assessors, who are to [81] assess the different taxes upon the different individuals who are to pay them, and at the same time they are to return the names of tvvo persons to be collectors. The 12th section provides that, on or before the 5th of June in every year, the assessors so appointed are to prepare and deliver to the commissioners certificates of assessments, which are to be signed by the commissioners, and the commissioners are to prepare and deliver three copies oif the assessments, which are to be signed by them, and one of which they are to deliver to the collectors to be appointed by them, with warrants under their hands for collecting the same, upon which the collectors are to make demand of the sums charged upon the respective parties at their last places of abode ; and upon payment to give acquittances', which shall be complete discharges. Then the 20th section provides that the Crown shall appoint certain officers, to be called surveyors and inspectors, who are to be checks upon the accuracy of what is done by the collectors. By the 24th section, power of appeal to the commissioners is given in cases of surcharge ; and by the 29th section, their decision in declared to lie h'nal. The 33rd section gives the collectors a power of distraining on payment of the duties being refused, and, in certain cases, of imprisoning the parties. The 44th section provides, that the collectors are not to include any person in the schedule of defaulters to be returned into the Exchequer, except upon oath that the sum for which such person is returned in default is due and wholly unpaid. Then the 45th section, which is important, enacts, "that the collectors appointed as aforesaid shall make a due return, fairly written on paper under their 1352 THE ATTORNEY-GENERAL V. SEWELL 4M. &W. 82. hands, to such commissioners, containing the names, surnames, and places of abode, of every person within their respective collections, from whom such collector or collectors shall not have been able to collect or receive such duties for any of the causes before-mentioned, and [82] which shall have beori duly verified on the oath of such collector as aforesaid, and the particular reason for returning each defaulter, and the sum and sum? charged upon every such person ; and such commissioners, after due examination thereof 011 the oaths or affirmations as aforesaid of the collectors, shall ascertain the sumg which, according to the provisions of any of the said acts hereinbefore mentioned, shall have been discharged from assessment for any cause therein specifically allowed ; and the said...
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