Pease and Others against Henry Chaytor, Esquire, and Another
| Jurisdiction | England & Wales |
| Judgment Date | 21 February 1863 |
| Date | 21 February 1863 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 859
IN THE COURT OF QUEEN'S BENCH, AND EXCHEQUER CHAMBER.
S. C. 31 L. J. M. C. 1; 5 L. T. 280; 8 Jur. N. S. 482; 10 W. R. 16. For subsequent proceedings see 3 B. & S. 620.
[668] pease and others against henry chaytor, esquire, and another. Friday, November 8th, 1861.-Church rate. 53 G. 3, c. 127, s. 7. Validity of rate disputed. Quaker. Action against justices. 11 & 12 Viet. c. 44, ss. 1, 2. -Declaration against justices of the peace alleged that the plaintiffs were rated to a church rate, the validity of which rate was disputed by them; that they were summoned for non-payment of the rate; that at the hearing before the defendants the plaintiffa, in good faith disputing the validity of the rate, gave the defendants notice thereof: yet the defendants, not acting bonH fide in the belief that they were acting in conformity to law, and when they well knew that they had not jurisdiction to proceed, made an order for payment of the rate, which order was afterwards quashed, and issued their warrant of distress, by virtue of which the goods of the plaintiffs were distrained. Plea, as to the distraining of the goods of the plaintiffs; that the warrant was issued on the application of the churchwardens, and executed by their direction as well as by the command of the defendants; and that the plaintiffs afterwards recovered judgment in replevin against the churchwardens. Upon demurrer, held,- 1. That the allegations in the declaration sufficiently shewed that the defendants knew that the validity of the rate was bona fide disputed, and that proper notice thereof was given to them; and therefore, by the proviso to sect. 7 of stat. 53 G. 3, c. 127, they acted without jurisdiction in making the order and warrant.-2. The action was, therefore, by sect. 2 of stat, 11 & 12 Viet. c. 44, maintainable without proof of malice and want of reasonable and probable cause. -3. Semble, per Blackburn J. If the defendants acted erroneously under the belief that the validity of the rate was not bona fide disputed, the action would be within sect. 1 of stat. 11 & 12 Viet. e. 44.-4. The proviso in sect. 7 of stat. 53 G. 3, c. 127, which takes away the jurisdiction of justices where the validity of the rate is bona fide disputed, extends to Quakers. [S. C. 31 L. J. M. C. 1; 5 L. T. 280; 8 Jur. N. S. 482; 10 W. E. 16. For subsequent proceedings see 3 B. & S. 620.] The first count of the declaration (dated 27th June 1859) alleged that the defendants were two justices of the peace for the county of Durham, and the plaintiffs were lessees and occupiers of a colliery and premises in the cbapelry of St. Helen's, Auckland, in the said county, and the plaintiffs, by a certain name or style, that is to say "Joseph Pease and others, or Company, owners of St. Helen's Colliery," were rated to a church rate for the said chapelry, in a certain sum, that is to say, 81., the validity of which rate was, at the time of the making of [659] the rate, and from thence hitherto has been and still is, disputed by the plaintiffs; that the plaintiffs were summoned to answer a complaint that they had refused to pay the sum of 860 PEASE V. CHAYTOR 1 B. & 8. 680. 81. 6s. 4d., being the amount of the said sum of 81., together with another sum of 5s. 4d., to which the plaintiffs bad also been rated in like manner as aforesaid to the said church rate, the validity of which they disputed ; that they, by their agent, attended pursuant to the summons, and the hearing of the complaint was adjourned to the 6th January, a,d. 1859, and upon that day they again attended by their agent before the defendants, and the matters of the complaint were then entered into and heard by the defendants. " And the plaintiffs say, that at the time of the hearing of the matters of the said complaint, they the plaintiffs in good faith, truth and sincerity, disputing and intending to dispute the validity of the said rate, upon the hearing of the said complaint by their said agent, gave to the defendants, then being and acting as such justices as aforesaid notice, that they the plaintiffs disputed the validity of the said rate, and required the defendants, as such justices as aforesaid, to forbear from and not to give judgment in respect of the matters of the said complaint. And the plaintiffs further say that, upon the aaid hearing of the said complaint by the defendants as such justices as aforesaid, there was not evidence given to or before the defendants that they the plaintiffs did not, in fact or in good faith, dispute the validity of the said rate, or that they did not give such notice to the defendants as aforesaid. Yet the plaintiffs in fact further say that the defendants afterwards; and not acting bona fide in the belief that they were acting as such justices as aforesaid, or that they were acting in conformity to [660] law, but wilfully, wrongfully and of set purpose disregarding the said notice, and the duty of the defendants aa such justices as aforesaid, and knowingly and wilfully disregarding and disobeying the statute in such case made and provided, and wrongfully and oppressively, and contrary to law, assuming to act as such justices as aforesaid in the matters of the said complaint when they had not, and when they well knew they had not, jurisdiction to proceed farther thereupon, or to make or give any order, direction or judgment upon the said matters of the said complaint, and notwithstanding such disputing by the now plaintiffs, and such notice thereof to them the defendants given as aforesaid; proceeded to give, and did give, judgment in respect of the matters of the said complaint, and did then make a certain order in writing, under the hands and seals of them the defendants, for the payment by the plaintiff's of the said sum of 81., together with a sum of money for costs, in which order the plaintiffs were described by the name or style of 'Joseph Pease and others, owners of St. Helen's Colliery;' and which said order by the defendants so made as aforesaid was as follows." [The order was set out, dated the 6th January 1859.] That the said order was removed into this Court by certiorari, and before the commencement of this suit was quashed. "That after the making of the said order by the defendants so made unlawfully and without jurisdiction as aforesaid, and before the removal thereof into the said Court here as aforesaid, the defendants, having notice of the premises aforesaid, and that the aaid order was null and void, and of no force or effect in law, and that they the defendants, as such justices as aforesaid, bad no jurisdiction, power or authority to act further in the [661] matters of the said complaint as aforesaid, and no jurisdiction, power or authority by distress and sale of the goods of the plaintiffs or otherwise howsoever to levy the said sums of money by the said order of the defendants, so wrongfully and unlawfully ordered to be paid by the plaintiffs as aforesaid. Yet the plaintiffs in fact further say that the defendants further, wilfully, wrongfully and unlawfully assuming to act as such justices aa aforesaid, and for the purpose of unlawfully and wrongfully levying the amount of the said sums of money in and by the said order so unlawfully and wrongfully ordered to be paid as aforesaid by distress and sale of the goods of the plaintiffs, by their warrant under the hands and seals of them the defendants, and directed to the constable of West Auckland and all other peace officers in the said county of Durham, did wrongfully and unlawfully command the said constable and peace officers in Her said Majesty's name forthwith to make distress of the goods and chattels of the plaintiffs, who were therein described as Joseph Pease and others, and which said warrant of the defendants was and is in these words." [The warrant, which was set out, was dated the 3d February 1859, and described the plaintiffs as "Joseph Pease and others, owners of St. Helen's Colliery, in the said county, being persons commonly called Quakers."] "And by virtue of which said warrant of the defendants so wrongfully and unlawfully made and issued, and delivered to the said constable and peace officers as aforesaid," divers of the cattle, goods and chattels of the plaintiffs were unlawfully and wrongfully IB. *8. M2. PKA8E V. CHAYTOR 861 seized, taken and distrained, whereby the plaintiffs were obliged to apply, and did apply for and obtain, a writ of certiorari to remove the said order into this Court, and were also [662] obliged to apply and did apply for and obtain a rule to quaah the said order, and were also obliged to cause the said order to be, and the same was, accordingly quashed ; and the plaintiffs were put to and incurred great expences, costs and charges &c. Second plea, to so much of the causes of action in the first count of the declaration mentioned as relates to or were occasioned by the seizing, taking and distraining of the cattle, goods and chattels of the plaintiffs as in the said count mentioned : the defendants say that the said warrant by virtue of which the said cattle, goods and chattels were so seized, taken and distrained was applied for and was issued on the application, at the instance and on the behalf of D. V. and T. S., then being the churchwardens of the said chapelry, and the said warrant was executed, and the said cattle, goods and chattels were so seized, taken and distrained, by and by the direction and order and on the behalf of the said D. V. arid T. S., as well as by the command of the defendants. And the defendants further say that, after the cattle, goods and chattels were so seized, taken and distrained, the plaintiffs commenced and levied a plaint or action of replevin in the county court of Durham, holden at Bishop Auckland, in the said county, against the said D. V. and T. S., for and in respect of the said seizing, taking and distraining of the...
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