Re Nathan
| Jurisdiction | England & Wales |
| Date | 1883 |
| Year | 1883 |
| Court | Court of Appeal |
Mandamus - Servants of the Crown - Commissioners of Inland Revenue - Return of Probate Duty - 5 & 6 Vict. c. 79, s. 23.
Sect. 23 of 5 & 6 Vict. c. 79, provides for the return by the Commissioners of Stamps and Taxes of probate duty on proof by oath and proper vouchers to their satisfaction of the payment of debts of the deceased, whereby the amount of probate duty payable on the estate is reduced below the amount which has been paid. By a subsequent Act the Commissioners of Inland Revenue are substituted for the Commissioners of Stamps and Taxes. On an application by an administrator for a mandamus to the commissioners to pay to the applicant the amount of duty overpaid by him, on the ground that he had supplied evidence of overpayment and had no other legal remedy:—
Held, that the mandamus ought not to issue, for the statute created no duty between the commissioners and the applicant, whose remedy, if the decision of the commissioners could be reviewed, was by petition of right.
RULE calling on the Commissioners of Inland Revenue to shew cause why a writ of mandamus should not issue directing them to return to the administrator of the estate of Edward Nathan, deceased, the sum of 1650l., being part of the duty charged in respect of letters of administration, with the will annexed, granted to the applicant.
It appeared that the deceased was domiciled in France, but had assets in England. On obtaining probate the duty was paid upon all the assets in England, but subsequently it was discovered that there was a debt amounting to 55,000l., and that sum was accordingly paid out of these assets. Application was made to the Commissioners of Inland Revenue for the return of the duty overpaid, under 5 & 6 Vict. c. 79, s. 23, which enacts that “where it shall be proved by oath and proper vouchers, to the satisfaction of the said Commissioners of Stamps and TaxesF1, that an executor or administrator hath paid debts due and owing from the deceased, and payable by law out of his or her personal or moveable estate, to such an amount as, being deducted from the amount or value of the estate and effects of the deceased for or in respect of which a probate or letters of administration shall have been granted in England after the 31st day of August, 1815, or which shall be included in any inventory duly exhibited and recorded after that day in a Commissary Court in Scotland, shall reduce the same to a sum which, if it had been the whole gross amount or value of such estate or effects, would have occasioned a less stamp duty to be paid on such probate or letters of administration or inventory than shall have been actually paid thereon, it shall be lawful for the said Commissioners of Stamps and Taxes, and they are hereby required, to return the difference; provided the same shall be claimed within three years after the date of such probate or letters of administration, or the recording of such inventory as aforesaid.” The commissioners refused the application, stating that they were not satisfied that the sum of 55,000l. was in law a debt payable out of the English assets of the testator.
1883. Dec. 10. Sir H. James, A.G., and A. V. Dicey, shewed cause. The Crown cannot direct a writ of mandamus to itself, nor does such a writ lie against servants of the Crown. The proper remedy of the applicant was by petition of right: Percival v. The QueenF2; Executors of Perry v. The QueenF3; De Lancey v. The QueenF4; and even if mandamus lies the Court will not issue the writ where there is another specific legal remedy: Tapping on Mandamus, p. 9; Rex v. Bishop of ChesterF5; Reg. v. Powell.F6 There are three cases in which a mandamus has been issued under similar circumstances, but in two of them: Reg. v. Commissioners of Stamps and TaxesF7 and Reg. v. Commissioners of Stamps and TaxesF8, it does not appear by the reports that the objection was taken, and in Reg. v. Commissioners of StampsF9, Sir F. Thesiger, A.G., said that the commissioners did not wish to insist on the objection that a mandamus does not lie against them. On the other hand, the judgment in Rex v. Commissioners of CustomsF10, is in point, for there the application was for a mandamus to the customs officers to deliver up tobacco held as security for the duty on payment of an amount which the applicant said was the right duty, and Littledale, J., said: “The goods are in the hands of the officers of the Crown; a mandamus to them in this case would be like a mandamus to the Crown, which we cannot grant.” In the case of Reg. v. PowellF11, the Queen was lady of the manor, and a mandamus was asked for against the steward of the manor only, in order to avoid this difficulty.
Cookson, Q.C., and W. H. Clay, in support of the rule. In this case the commissioners owe a statutory duty to the applicant to return to him the excess of duty. In Reg. v. Lords Commissioners of the TreasuryF12 the sign manual of the Crown was, by 29 & 30 Vict. c. 39, s. 46, required, and the application was premature. It was admitted in the argument by Sir George Jessel, S.G., that if the legislature had constituted the Lords of the Treasury agents to do a particular act, mandamus might lie, and that is the case here. This is supported by Rex v. Lords Commissioners of the Treasury.F13 There, as here, money was in the hands of a servant of the Crown for a specific purpose, and mandamus lies to have that purpose carried out. In Rex v. Commissioners of CustomsF14 the argument of the Attorney-General was that the customs officers had no duty to perform towards the owner of the tobacco, and that view prevailed. The Commissioners of Inland Revenue have had their duties defined by Parliament by a number of Acts down to the
Sir H. James, A.G., in reply. This is not a question of paying over money, for the applicant is seeking to enforce alleged legal rights, as to which the commissioners may take a different view from him. The money was received as part of the general revenues of the Crown, and has not been ear-marked or set aside in such a manner that it can be repaid. If the commissioners are satisfied that the duty has been overpaid they are to repay the excess, but they do not hold any particular sum for the applicant as in Rex v. Lords Commissioners of the Treasury.F17 The money cannot be part of the revenue and yet the property of the applicant so that he can ask the Court to order it to be paid over to him. All his rights can be ascertained under a petition of right in which the burden of proof will be on him and not, as on a return to a mandamus, on the Crown, and the remedy is a substantial one, for all that is necessary to obtain a fiat is to shew a primâ facie case.
DAY, J. I am of opinion that the rule should be made absolute for the issue of the writ. It seems to me that the test whether the writ should issue is, to use the language of Sir Frederick Thesiger, arguendo, in Reg. v. Commissioners of Woods and ForestsF18, “Whenever a person, whether filling an office under the Crown or not, has a statutory duty towards another person, a mandamus will lie to compel him to perform it.” The rule is expressed with precision and neatness, and is substantially the language used afterwards by Cockburn, C.J., and the Court, in Reg. v. Lords Commissioners of the TreasuryF19, where the judges clearly distinguished the case then before them from cases in which a statutory duty has been imposed on a servant of the Crown to do a particular act, and held that in the case then before them no statutory duty had been imposed by any Act of Parliament on the Commissioners of the Treasury to apply particular moneys to a particular purpose. The question then which arises, and which we have to determine, is whether any such duty has been imposed in the present case. It is provided that where it shall be proved to the satisfaction of the Commissioners of Stamps and Taxes that an executor has paid debts, it shall be lawful for the said commissioners, and they are thereby required, to return the difference. Is that a statutable duty applicable to the present case? The applicant says he has shewn, by proper vouchers, that he has paid money in excess of that which he was called on to pay, and he claims that the commissioners are under a statutable duty to return him the difference that has been overpaid. Against this it is urged that they are only bound to do this if they are satisfied, and, therefore, no absolute duty has arisen. But these words must, in my opinion, receive the same construction as they would receive in contracts made between private persons, and, if so, the statutable duty to pay arises when such evidence has been produced as ought to satisfy a reasonable person. If not, there is no remedy of any kind, for the...
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