The Governor, Deputy Governor, Assistants, and Guardians of the Poor of the City of Bristol against Wait, Gardner, and Barnett
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1836 |
| Date | 09 May 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 1207
IN THE COURT OF KING'S BENCH
S. C. 3 N. & M. 359; 3 L. J. M. C. 71. Applied, Rhymney Railway v. Price, 1867, 16 L. T. 395. Discussed, Manchester Overseers v. Headlam, 1888, 21 Q. B. D. 100. Adopted, Baglan Bay Tin Plate Company v. John, 1895, 72 L. T. 807.
1ad.&e.264. governors of ^bristol poor v. wait 1207 [264] the governor, deputy governor, assistants, and guardians of the poor of the city of bristol against wait, gardner, and barnett. 1834. If a party is assessed to the poor rate for premises which he occupies, and other distinct premises which he does not occupy, and his goods are distrained for the several rates jointly, he is not confined to the remedy by appeal, but may bring an action. If a joint distress be made under four several warrants, for four several rates, of which one is bad, the distress is not therefore void. If a party enter and make a joint distress for four several rates, being furnished for that purpose with four warrants, one of which is bad, he may, in an action of replevin for such distress, justify under the good warrants, and abandon the bad one; and if the causes of taking are distinct, and the avowries separate, he will be entitled to a return of all the goods. Where some of the avowries justified the whole taking under good warrants only, and the plaintiff alleged, in answer to each of the avowries, that the whole distress was taken jointly under four warrants, of which one was bad, and the defendant did not, on the record, contradict this allegation : Held, nevertheless, that the defendant was entitled to judgment, and a return of all the goods. [S. C. 3 N. & M. 359; 3 L. J. M. C. 71. Applied, Ehymney Railway v. Price, 1867, 16 L. T. 395. Discussed, Manchester Overseers v. Headlam, 1888, 21 Q. B. D. 100. Adopted, Baglan Bay Tin Plate Company v. John, 1895, 72 L. T. 807.] Replevin. The defendants avowed, first, as overseers of the poor of the parish of St. Philip and Jacob, stating that the taking, &c. were done by them by authority of an Act (43 Eliz. c. 2) for the relief of the poor, and according to the said Act. To this the plaintiffs pleaded in bar, first, de injuria; secondly, that the defendants wrongfully took, &c. in the name of one entire distress, for and by reason of the non-payment of divers, to wit, four rates before then made, &c., for the relief of the poor of the said parish, and not otherwise, and that in and by one of the said rates, viz., in and by a certain rate made, &e., 22d of March 1832, the said plaintiffs were rated and assessed in the sum of 331. 6s. 8d., for and in respect of the supposed occupation by them of a certain building called the Armoury, situate in the said parish, and that they, the plaintiffs, were not at the time of making, &c. the said last-mentioned rate, or at any time afterwards, occupiers of the said building, nor rateable in respect thereof to the relief of the poor of the said parish. Eeplication to the first plea, similiter. The replication to the second plea set out four rates, made respectively on the 3d of [265] March 1831, 22d of September 1831, 22d of March 1832, 20th of October 1832, upon the plaintiffs, and specified the amounts for which, and the premises in respect of the occupation whereof, the several rates were made; that of March 22d, 1832, being for the Armoury. The replication then averred that the plaintiffs, at the several and respective times of the making, &c. of the said last mentioned rates, having then been the occupiers of the said several tenements in that replication mentioned, and in respect of which the,y were so rated, notice of the several last mentioned rates afterwards, to wit, &c., was duly given to the plaintiffs, and payment of each of the said rates duly demanded; The replication further stated, that the plaintiffs refused to pay the rates, or either of them, and were summoned before two magistrates to shew cause why they so refused; that they appeared accordingly, and that the magistrates duly issued four several warrants to the churchwardens and overseers to distrain the goods of the plaintiffs for the aforesaid rates respectively ; that the warrants were duly delivered to the defendants, being then overseers, &e.; and because the four rates, at the time when, &c., were severally in arrear, the defendants, as such overseers^ under and by virtue of the last-mentioned four several warrants, took, &c., as, for and in the name of a distress, for and by reason of the non-payment of the said several rates, &c. Rejoinder, that the plaintiffs, at the several and respective times of the making, &c. of the said four rates were not the occupiers of the several tenements in the replication mentioned, and in respect of which they were so rated and assessed as therein mentioned, in manner and form, &c.; but on the contrary thereof, that the said plaintiffs were not, at the [266] time of making, &c. the said rate thirdly mentioned in the replication, or at any time afterwards, occupiers of the building in respect of which they were rated in the last-mentioned rate, nor rateable in respect thereof to the relief of the poor, &c. General demurrer and joinder. 1208 GOVERNORS OF BRISTOL POOR V. WAIT IAD. & E. 267. The second avowry stated that the plaintiffs were occupiers of certain premises in the parish, and rateable in respect of their said occupation; and it set out the rate of the 3d of March 1831, and followed in other respects, as to this rate, the same course of statement which was taken in the replication to the second plea. The third avowry was in the same form, and was confined to the rate of the 22d of September 1831. The fourth and fifth avowries were in the same form, and were confined respectively to the rates of 22d of March 1832, and 20th of October 1832. The plaintiffs pleaded in bar, thirdly, fourthly, fifthly, and sixthly, to the second, third, fourth, and fifth avowries respectively, de injuria. Seventhly, the plaintiffs pleaded in bar to the same avowries, that the defendants took, &e. the goods in the declaration mentioned, as for and in the name of one entire distress for the non-payment of the several supposed rates in the second, third, fourth, and fifth avowries respectively mentioned; and that by the rate of 22d of March 1832, the plaintiffs were rated in respect of the supposed occupation of a building called, &c. of which they were not, at the time of making that rate, occupiers, nor rateable in respect thereof. Replication to the third, fourth, fifth, and sixth pleas, similiter. To the seventh plea, that the defendants took, &c. as a distress for the said several rates in the second, third, fourth, and fifth avowries respectively mentioned, under and by virtue of the several warrants therein [267] also respectively mentioned. General demurrer and joinder. The sixth avowry was for a distress for four several rates. It began by stating, that at the time of making the rates after mentioned, the plaintiffs were occupiers of premises for which they were rateable to the poor: it then set out the four rates successively, specifying the dates as stated in the replication to the second plea, and the amounts of the respective assessments on the plaintiffs: alleging each respectively to be for the premises occupied by the plaintiffs, as was before mentioned in that avowry. It then pursued the form of the replication to the second plea in bar. To this avowry the plaintiffs pleaded in bar, eighthly, de injuria; and, ninthly, as in the seventh plea in bar. Eeplieation to the eighth plea, similiter. Eeplication to the ninth plea, as in the replication to the seventh. General demurrer and joinder. The seventh avowry set forth a local Act passed 1 W. 4, by which certain tenements were made rateable to the relief of the poor, and avowed for the taking, &c. as a distress for four several rates, in respect of the occupation of certain of the said tenements by the plaintiffs, specifying the amounts of the several assessments, and the premises, and stating the other facts as in the replication to the second plea in bar. The tenth and eleventh pleas in bar to this avowry corresponded to those on the sixth avowry. Eeplication to the tenth plea, similiter. To the eleventh, replication as to the seventh. General demurrer and joinder. The demurrers were argued in Hilary term last (a). [268] Maule for the plaintiffs in replevin. All the demurrers raise the question whether, when four separate warrants are granted at the same time to distrain for four several rates respectively, to one of which the party distrained upon is not liable, and one distress is made for all the rates jointly, such distress can be supported. A single warrant to distrain for several rates, one of which is illegal, is altogether bad : Milward v. Coffin (2 W. Bl. 1330). That case is supported by Hurrell v. Wink (8 Taunt. 369. S. C. 2 B. M. 417), in which last case Forty v. Imber (6 East, 434), and Patchett v. Bancroft (7 T. E. 367), were cited. Forty v. Imber (6 East, 434), decided that a party might support a cognizance made for rent due for a specified time, by a proof of rent due for a shorter time; and Patchett v. Bancroft (7 T. E. 367), decided that a single distress warrant might be given for the aggregate of taxes due under different Acts of Parliament; neither of which points is at present disputed. It is true, also, that a party may, on distraining, assign one cause, and may afterwards avow for another; for he is not to be bound by a mistake in the account which he may give of the transaction at the time, if he have good authority. But here the party admits on the record a joint distress for all the rates; and, after that,, he cannot be suffered to separate his defence by referring it to several distinct claims. The faet of four warrants having been given, is...
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