Fernley v Worthington
| Jurisdiction | England & Wales |
| Judgment Date | 17 June 1840 |
| Date | 17 June 1840 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 425
IN THE COURT OF COMMON PLEAS
S. C. 10 L. J. M. C. 81.
[491] fernley v. woethington. June 17, 1840. [S. C. 10 L, J. M. C. 81.] By the Municipal Corporation Act, 5 & 6 W. 4, c. 76, councils of boroughs were authorised to order borough rates to be made within their boroughs, and for that C. P. xl-14* 426 FEBNLEY V. WORTHINGTON 1 MAN. & G. 492 purpose were to have all the powers which county justices had by virtue of the 55 G. 3, c. 51, for the levying of county rates.-The council of the borough of S. ordered a borough rate to be made, and assessed upon the township of C., in respect of a portion of it, namely, the hamlet of E., which was within the borough, a certain sum.-The plaintiff, as overseer of the township, was called upon to pay the assessment, and having failed to do so, the defendant, as mayor of the borough, issued a warrant, under which the plaintiff's goods were seized.-The plaintiff having brought an action of trespass against the defendant for the seizure of his goods: Held, that the council of the borough had no authority to make the assessment in question, and that inasmuch as the defendant had no jurisdiction to issue the warrant, trespass was the proper remedy.-To prove the warrant, the high constable of the borough, who had been served with a subpoena duces tecum, was called. He stated that he had deposited the warrant in his office, that he had searched for it but could not find it, that he did not know what had become of it, and that the town clerk had access to his office. Held, that secondary evidence might be given of the contents of . the warrant. Trespass for seizing and distraining the plaintiff's goods. Plea, not guilty. By the Reform Act (2 W. 4, c. 45, s. 3, schedule C.), it was enacted, that Stockport should for the purposes of that act be a borough, and by the Boundaries Act (2 & 3 W. 4, c. 64, s. 35, schedule 0.), it was declared that the borough of Stockport should comprise among other places the township of Stockport and the hamlets of Brinksway and Edgeley, the latter hamlet being part of the township of Cheadle Buckley. By the Municipal Corporation Act (5 & 6 W. 4, c. 76, s. 7), it is enacted that after the passing of that act the metes and bounds of the several boroughs named in the first section of the schedules annexed to the act, (of which Stoekport was one) for the purposes of the act, shall be the same as the limits thereof respectively settled and described in the 2 & 3 W. 4, c. 64. And by sect. 92, providing for the making of a rate in aid of the borough fund, it is among other things [492] enacted, that "in case the borough fund shall not be sufficient for the purposes aforesaid, the council of the borough is hereby authorized and required from time to time to estimate, as correctly as may be, what amount in1 addition to such fund will be sufficient for the payment of the expences to be incurred in carrying into effect the provisions of this act; and, in order to raise the amount so estimated, the said council is hereby authorised and required, from time to time, to order a borough rate in the nature of a county rate, to be made within their borough, and for that purpose the council of such borough shall have within their borough all the powers which any justices of the peace, assembled at their general or quarter-sessions in any county in England, have withiii the limits of their commission, by virtue of an act made in the fifty-fifth year of his late majesty King.George the Third, intituled ' An act to amend an act of his late majesty King George the Second, for the more easy assessing, collecting, and levying of county rates,' or as near thereto as the nature of the case will admit, except as i hereinafter excepted; and all warrants required by the said act to be issued under the hands and seals of two or more justices shall in like case be signed by the mayor, and sealed with the seal of the borough." By the act referred to, 55 G. 3, c. 51, it is enacted, sect. 8, "that in,such place or places where there is no poor's rate, or overseer of the poor, or churchwarden, or other officer, necessary for the execution of the provisions of this act, residing within the limits of the jurisdiction of the justices of the peace of the county requiring such returns, and in which there is any,property liable to the poor's rate, but not rated or assessed thereto, it shall and may be lawful for the said justices of the peace of the county, assembled as aforesaid, .or for the justices of the peace resident in and acting for any division of the county, in which such place or places are [493] situate, at any petty sessions or adjournment thereof, to be holden by them within such division as aforesaid, and they are hereby authorized and required, to appoint one or more proper person or persons to act as overseer or overseers or other such officer as aforesaid, who is and are hereby authorized, empowered, and required to act within such place or places respectively, for effecting the purposes of this act; and such person or persons respectively shall have the like powers vested in him or them, and shall be subject to the same regulations and penalties for effecting all such purposes, as fully and effectually to all intents and purposes, as if he or they had been appointed over- 1 MAN. & 0.494. FEBNLEY Vf. WQKTHINGTON 427 seer or overseers of the poor, or churchwarden or churchwardens, or other officer or officers, under any law or laws now in force." And by the twelfth section of that act it is enacted, " that it shall be lawful to and for the justices of the peace of any county, or the major part of them, in general or quarter sessions, or at any adjournment or adjournments thereof, assembled, as often as they shall have deemed it necessary, to make a rate or rates, assessment or assessments, on all the rateable property within the limits of their jurisdiction, according to the fair- annual value of the same, as derived from any or all of the several sources of information which are herein-before mentioned ; and they are hereby authorized and empowered to order warrants to be from time to time issued, in the same manner as now authorized and practised by law for collecting the county rates, to the several high constables, within their respective counties, ordering and requiring them to issue their warrants to the respective overseers of the poor within their respective divisions, to levy, collect and pay to the said high constables, within a timeito be named and limited in a warrant to be issued from the sessions as aforesaid, all; such rate or rates, assessment or assessments, which each high constable shall,.;and he is hereby directed and required to pay, at such time as shall be [494] specified in such warrant, to the treasurer of the county for the time being, to be applied and disposed of in such manner and for such purposes as the county stock or. rate is now applicable, or may hereafter be made applicable by law; and in case any overseer or overseers of the poor, or other person appointed to act as such under the provisions of this act, in. any of the several parishes, townships, or places, whether parochial or otherwise, within any county liable to pay the same, shall neglect, make default, or refuse to pay the same, within the time to be specified and limited for that purpose as aforesaid, to the high constable of the division within which such overseer or overseers,; or other person or persons so liable and neglecting to pay, shall reside, or be appointed to act, it shall and may be lawful for any justice of the peace of the said county, upon complaint thereof made by any such high constable, by warrant under the hand and seal of any such justice, to levy the same by distress and sale of the offender's goods; and the overseer or overseers of the poor of any parish, township, or place, whether parochial or otherwise, or other person or persons appointed to act as such overseer or overseers, shall and may, and is and are hereby empowered to levy and raise, by any equal rate or assessment upon all and every the several estates and property rateable to the relief of the...
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Mould against Edward Jones Williams and Edward Williams
...liable in an action of trespass because it appeared on the trial that "W. did not occupy any land in Overton. In Fernley v. Worthington (1 Man. & G. 491), where the mayor of a borough had issued a warrant of distress to levy a borough rate imposed upon a township in respect of a portion of ......