Hutchins v Chambers et Al'
| Jurisdiction | England & Wales |
| Judgment Date | 20 April 1758 |
| Date | 20 April 1758 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 458
IN THE COURT OF KING'S BENCH
S. C. Bull. 82, cited. See also 7 Durn. 658. 3 Salk. 136.
Referred to, Grunnell v. Welch [1905], 2 K. B. 656; [1906], 2 K. B. 555.
HuTCfflNS versus chambers et al'. Friday, 20th April 1758. [S. C. Bull. 82, cited. See also 7 Darn. 658. 3 Salk. 136.] Beasts of the plough are distrain-able for the poor rates. [Referred to, Grunnell v. Welch [1905], 2 K. B. 656; [1906], 2 K. B. 555.] This was a special case from Surry Assizes, before Ld. Ch. J. Willes, It was an action of trespass against the justices of peace, the parish officers, the constables, and their assistants ; for executing a warrant of distress made by the two justices^ upon a poor-rate amounting to 131. 2s. And a verdict was found for the plaintiff against all the defendants, subject to the opinion of the Court upon the whole matter. The distress at first taken, was five geldings, stated to be beasts of the plough and cart; with their halters; which first distress not being sufficient, they distrained a second time, under the same warrant ; and took three other geldings, which were and are stated to have been also beasts of the plough and cart, of the value of 361. 17s. with their halters. It is expressly stated, " that upon the former distress, there were other goods, &c. more than sufficient to answer the value of the demand, besides these beasts of tbe plough and cart." [580] This case was first argued on Tuesday 31st of January 1758, by Mr. Knowler for the plaintiff, and Mr. Gould for the defendants; and again, on Friday the 14th of April 1758, by Mr. Stowe for the plaintiff, and Mr. Williams for the defendants.(a)2 There were five questions stated for the opinion of the Court, viz. 1st. Whether the rate and assessment was a good and sufficient rate and assessment, in point of law ; and if not, then whether the plaintiff can avail himself of any objection to it. 2d question, whether the warrant ought to have fixed and limited the time * within which tha geldings and goods distrained were to be sold : and whether, for want thereof, the warrant is void, and the defendants, or any, and which of them, are trespassers. 3d question, whether the second distress is at all juatifiable.(i) 4th question, whether the geldings, being beasts of the plough, and used by the plaintiff, both for the plough and cart, were liable to be taken and distrained for the said rate and assessment. 5th question, whether upon the whole state of the case, the plaintiff's action is maintainable against the defendants, or any, and which of them. ò And a 6th question, ("whether the second distress was not excessive,") arose upon the argument. After the first argument, (in which the distress was treated as a common-law distress; and Mr. Knowler expressly denied it to be an execution, because it was repleviable ; and insisted that the Statute de Districtione Scaccarij, is general, (a)1 The case was stronger than it appears on this report, if what is stated in Sayer's Law of Costs, ed. 1767, p. 146, be true, viz. "that it appeared that there had been a tender of the rent before it was due, that the plaintiff had kept out of the way all the day on which it became due, in order to deprive the defendant of an opportunity of tendering the rent that day." (a)2 If in pleading a custom to distrain, it be alledged generally, it shall not be intended that the custom is to distrain things not distrainable by law. 1 Sid. 18. "It seems to be a rule that the construction of statutes must bo accommodated to the rules of common law in like cases." Foster, 109. * V. 27 G. 2, c. 20, and 17 G. 2, c. 38. [And note that this distress was not for a penalty, if it had then it seems this would have been a material objection, as appears by the above statute 27 Geo. 2, c. 20, s. 1. Salk. 609.] (b) This distress was not for a penalty ; if it had, then it seems this would have been a material objection, as appears by the above stat. 27 Geo. 2, c. 20 s. 1 Salk. 609. 1BURR. 881. HUTCHINS V. CHAMBERS 459 is declaratory of the common law, and extends to all distresses for any cause whatsoever). Lord Mansfield finding that the parties proposed speaking to it again, took notice that all about the jptes ia clearly out of the present case; for, if they are bad the parties who thought themselves aggrieved, should have appealed. So all about the warrants may be laid out of the case. For, the warrant is not void, so as to make it a trespass ab initio. Therefore the future argument may be confined to the other objections. Ulteriua concilium. [581] Mr. Stowe, who argued for the plaintiff, on Friday the 14th of April 1758, passed over first and second questions, upon what the Court had intimated after the former argument; and proceeded directly to the third question. 3d question. It is stated that here was sufficient distress, the first time; and therefore the second was not justifiable, Co. Lit. 272 b. Cro. Eliz. 13. Moore, 7. 2 Lutw. 1532, Wattis v. Savill. Fitz. H. N. B. title Recaption. 8 Co. 50, Jehu Webb's case. And this is a duty of a less nature than rent: and yet even in that case, a double distress is unlawful. A second reason why the second distress was not good nor justifiable, is because the warrant is not an authority to take it: for, the warrant having been once executed, had performed its office: and consequently was no more than a piece of waste paper, at the time of taking the second distress. 4th question, beasts of the plough (though used both for plough and cart) cannot be distrained for a rate, when there are other goods sufficient. 51 H. 3, Stat. 4, de Districtione Scaccarij. "None shall be distrained by his beasts that gaigne his land, nor by his sheep, &c." 2 Inst. 133, is large and express, "that this was so by the common and civil law; and that this statute extends to all sorts of distresses whatsoever ; also to all manner of executions, as well at the suit of the King, as of the subject." The words " levy the debt," cannot be applicable merely to lord and tenant; but are general, and extend to all distresses whatsoever. 1 Inst. 289 b. 2 Inst. 133. 6th question. " Whether the second distress is not excessive." He argued that this distress was excessive ; being a distress taken of three geldings, of triple the value : for, the value was 361. 17s. and the sum distrained for...
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