Le Feuvre against Miller
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1857 |
| Date | 04 July 1857 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 120
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 26 L. J. M. C. 175; 3 Jur. N. S. 1255. Distinguished, Beeson v. Derby Overseers, 1903, 89 L. T. 49.
120 LE FEUVRE V. MILLER 8 EL. ft BL. 32S. le feuvbe against miller. Saturday, July 4th, 1857. The Public Health Act, 1848 (11 & 12 Viet. c. 63), sect. 103, enacts that all rates made or collected under it "shall be published in the same manner as poor rates." Held, that a rate, made under the Act, was not null and void by reason of not having been ao published : that, on a summons before justices to enforce it, the rate not having been appealed against, they were justified in refusing, as immaterial, evidence of non-publication: and that therefore the officer executing their distress warrant was protected by it. [S. C. 26 L. J. M. C. 175; 3 Jur. N. S. 1255. Distinguished, Beeson v. Derby Overseers, 1903, 89 L. T. 49.] Replevin. Second plea: That, under The Public Health Act, 1848 (11 & 12 Viet. c. 63), a provisional order (afterwards confirmed) was made by the General Board of Health, applying the Act to the town of Southampton, and making the Mayor, aldermen and burgesses the Local Board : arid that " the supposed taking by the defendant of the goods and chattels of the plaintiff in the declaration mentioned, and the supposed detaining of the same, were matters and things done by the defendant as and then being an officer and person then acting under the direction of the Local [322J Board aforesaid; and that those matters atid things were so done bo ml fide for the purpose of executing The Public Health Act, 1848, according to the true intent and meaning of that Act." Demurrer. Joinder. Second replication to second plea: That the said taking and detaining were a seizing and distraining by the defendant under colour of certain assessments made upon the plaintiff in arid by certain alleged rates alleged to have been made by the said Local Board under and by virtue of the said Public Health Act, 1848, and under colour of certain alleged warrants of justices for the levying of the same; "whereas the said alleged rates had not, nor had any or either of them, been published in the same manner as poor rates, nor in any other manner as by law required :" that, at the hearing of the summons before the said justices, the plaintiff tendered evidence of the non-publication of the said rates, but that the justices decided that such evidence was irrelevant, and wrongfully refused to admit it: that the plaintiff entered a plaint against the defendant in the county court, duly replevied the said goods, and brought the action in pursuance of the replevin bond. Demurrer. Joinder. Second rejoinder to the above replication : That the rates were duly made by the Local Board under the authority of the said Act: that the plaintiff was duly assessed to the said rates, and failed to pay the same for fourteen days after demand in writing : and that thereupon he was duly summoned before the justices at the request and by the direction of the said Local Board. The rejoinder then stated the proceedings before the justices, and set out the warrants in full. It further [323] alleged that the summons was taken out and the warrants were issued at the request and by the authority of the Local Board, and the warrants directed to defendant,!collector of the rates, among others: that the cauaes of action were the taking and detaining under and by virtue of the said warrants; and that such taking and detaining were matters and things done by defendant as the bailiff and servant, and under the command, of the said Local Board, and were done bona fide for the purpose of executing the Act: that there never was any appeal against the said rates or against the said order of justices, or any notice of appeal, although the time for such appeal and notice had elapsed before the said taking and detaining; that the plaint against defendant in the county court was entered, and the replevin bond executed, without hia knowledge or consent; and that the plaint might have been brought against the Local Board. The rejoinder further set out in full the plaint, the writ of re. fa. lo., and the return to it, and alleged that the defendant's appearance "in Her Majesty's Court here " was " an appearance according to the course and practice of the same Court according to the exigency of the writ hereinbefore set forth, and not otherwise." Demurrer. Joinder. G. Rochfort Clarke, for the plaintiff. The questions which arise upon these demurrers are, first, whether the rates were bad by reason of not having been published ; 8Bl.&BL.m LE FEUVEE V, MILLER 121 and, secondly, if so, whether the officer of the Local Board is protected by sect 140 of The Public Health Act, 1848. As to the validity of the rates. Sect. 103 enacts that " all rates made or collected under the authority of this [324] Act shall be published in the same manner as poor rates." Now the mode in which poor rates are to be published is provided by stat. IT G. 2, c. 3, and gtat. 7 W. 4 & 1 Viet. c. 45. Sect. 1 of the former Act provides that " the churchwardens and overseers, or other persona authorized to take care of the poor in every parish, township, or place, shall...
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