The King against The Rev. Thomas Henry Mirehouse, Clerk, and Charles Abraham Elton, Esquire, Justices of Somersetshire
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1835 |
| Date | 28 January 1835 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 244
IN THE COURT OF KING'S BENCH.
244 THE KING V. MIREHOUSE 2 AD. * E. 832. [632] the king against the eev. thomas henry mirehouse, Clerk, and oharlbs abraham elton, esquire, Justices of Somersetshire. Wednesday, January 28th, 1835. On motion for a mandamus to justices to grant a distress warrant for levying a highway rate, it appeared that the rate was contested, on the following grounds. 1. The lands in respect of which payment had been refused, were part of a district inclosed thirty-five years ago by Act of Parliament, having none but private roads, which were repaired by the landholders, and never having been assessed to the highway rate. 2. No statute duty had been called for, in respect of these lands, before making the present rate. 3. The special session at which the order for making such rate was signed, had been convened without notice from the high constable. 4. The order was signed by two persons not stating themselves to be justices. 5. The rate was not dated. The occupier against whom the warrant was applied for had not appealed to the sessions, but he threatened the justices with an action if they granted a warrant, and the opposite party made no express offer to indemnify them. Held, that a mandamus ought not to go, it being doubtful whether, upon some objection among those taken, the justices might not be liable to an action if they granted the warrant. Erie in the last term (November llth), obtained a rule calling on the above-mentioned justices to shew cause why a mandamus should not issue, commanding them to issue a distress warrant for levying upon the goods of James Maclean a sum assessed upon him in respect of lands occupied by him in the parish of Clevedou, Somersetshire, for a highway rate. It appeared by the affidavits in support of the rule, that the rate purported to be made under the authority of an order of two justices, signed at a special session for the highways on the 24th of March 1834. The order stated that an application had been made by the surveyors for the parish of Clevedon, and evidence given before the justices on oath, "That the duty directed to be performed, and the money authorised to be collected and received by an Act passed," &c. (13 Gr. 3, c. 78), "have been performed, applied, and expended, and that the highways," &c., " within the said parish are so far out of repair as to render application for a highway rate for the said parish, not exceeding 6d. in the pound, absolutely necessary for the repair thereof; " arid the [633] order directed such a rate to be forthwith made upon all the occupiers of lands, &c., within the said parish, and the money to be applied towards the repairing of such highways, &c. One of the surveyors of the highways for Clevedon now deposed that, at the time of obtaining the order, he had informed the justices upon oath, as the fact was, "That the duty directed to be performed, and the money authorised to be collected and received, by the before-mentioned statute, had been performed, applied, and expended, and also that the highways, roads, and bridges were so far out of repair as to render application for a highway rate for the said parish," &c., necessary, as stated in the order. The lands in respect of which Maclean was assessed were part of certain common and waste lands divided and allotted by commissioners under an Inclosure Act (39 G, 3, c. 41, private), which empowered the commissioners to set out public carriage roads, and directed that no person should be chargeable (over and above statute duty) towards the repair of such roads, until the same should be certified as fit for passage, in the manner prescribed by the Act, after which they should be from time to time supported and kept in repair in the same manner as other public roads in the parish. The commissioners were also empowered to set out private roads, to be repaired as they should direct. No public roads were thought necessary, or were set out, by the commissioners, but they set out several private roads, to be used by the owners and occupiers of allotments, and the repair of these was charged upon the several allotments, and was done from time to time, after the inclosure, by the occupiers [634] of those allotments, who had a distinct assessment for their own roads, and (through ignorance, as it was stated, in the surveyors of Clevedon) were never, down to the present time, rated to the repair of the public highways of the...
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