Composition in Lieu of Statute Duty, when Demandable. [2 Burn, 683.] trates authorised the surveyor of a turn collect for the repair of the road a composition in lieu of the statute duty. The surveyor was not exam afterwards made the pound upon the annual value of the lands of township through which the turnpike road passed. The sum to be collected under Sir Thomas Stanley, Bart. v. Fielden, Esq. Congreve, Esq., and Two magisTopham, H. 2. G. 4. 5 B. & A. 425. Trespass for seizing and taking the plaintiff's oxen, and detaining them for two days, until the plaintiff paid 317. 5s. to regain them. Plea 1st, not guilty; pike road which 2dly, justification under a warrant of distress, to levy the sum of ran through 291. 5s., due from the plaintiff, which had been assessed upon and twenty-nine demanded of him, as a composition in lieu of the statute duty townships, to that he was liable to perform, as occupier of lands in the township of Hooton. Replication, that the defendants committed the trespasses of their own wrong. At the trial at the spring assizes for the county of Chester, 1821, it appeared that the cattle, for the detention of which this action was brought, were seized by the defendant Topham, under a warrant of distress, granted by Fielden ined upon oath and Congreve, who were magistrates acting for the hundred of as to the necesWirral, in the county of Chester. The warrant was to levy a sum sity of the comof money for the proportion of statute duty due from the plaintiff, position. He as owner of lands in the township of Hooton. It was given in an assessment evidence on the part of the plaintiff, and was as follows: "Whereas, of sixpence in by an assessment made upon the occupiers of lands. &c. within the township of Hooton, in the district and hundred of Wirral, in the county of Chester, for the purpose of raising a composition in money, in lieu of the statute duty in kind, for the maintenance and a particular repair of such part of the road and highway leading from the city of Chester to the Woodside Ferry, in the township of Birkenhead, in the county of Chester, as is situate within the township of Hooton, pursuant to an order or authority of two justices, acting for the said district and hundred, for that purpose, according to the directions of the statute in that behalf: Sir T. Stanley, Bart. was charged the sum of 291. 5s., as his share and proportion of the said assessment, in respect of the lands, &c. which he occupied within the township of Hooton; and whereas, it appearing to R. Congreve and J. Fielden, esqrs., being justices of the peace for the county of Chester, acting for the district and hundred of Wirral, upon the application of J. Johnson, one of the surveyors of the highways of the township of Hooton, that the said sum of 291. 5s. had been duly demanded from the plaintiff, and that he had refused to pay it for the space of ten days after such demand made: they, the said R. Congreve and J. Fielden, did summon the said Sir T. Stanley personally to appear before them and other justices, to be assembled at a special sessions to be holden for the said district, and at a place and time therein mentioned, to shew cause why he refused to pay the said sum; and whereas at a special sessions, now holden for the hundred of Wirral, at the place therein mentioned, before them, the said Sir T. Stanley had not appeared, pursuant to the summons, they, the said J. Fielden and R. Congreve adjudged him liable to pay the said sum, and, therefore, they commanded all constables, &c. to levy the same by distress, &c., together with the expenses of the distress." It was objected by the counsel for the defendants, on the plaintiff's case being closed, that the assessment was the utmost which the surveyor of the turnpike roads could in any case demand from the inhabitants of the township, and much exceeded quired to put that part of the road lying in the township into complete repair. what was re The veyor having returned the assessment to the surveyor of the highways of the township, turnpike sur directed him to collect the sums ground that, in order to legalize the demand under the assessment, it ought to have been previously ascertained ow there ought to be a nonsuit, inasmuch as the warrant must be contherein mensidered prima facie evidence of all the facts thercin stated, and if tioned. Upon so, then it appeared, that by an assessment pursuant to an order of a refusal to pay the sum assessed two justices, according to the directions of the statute, the plainby an inhabitant tiff was charged with the sum therein mentioned, and refused to of the township, pay it, and that this must be taken to be an adjudication, binding two magistrates and valid, until regularly quashed. The learned judges refused to granted a warnonsuit the plaintiff, but reserved the point, and the cause prorant of distress ceeded. On the part of the defendants the following facts were to levy the same: Held, proved: Crackenthorpe, the surveyor of the turnpike road, between that the warrant the 29th September and 8th October, 1819, applied to the clerk of was bad, the the magistrates for an authority, in writing, to empower him to call magistrates for a composition in money, in lieu of the statute duty. On the having no jurisdiction what8th October, a special sessions were held, at which Congreve, one of the defendants, and William Wilson Currie, acting justices for ever, upon the the district of Wirral, attended, and C., the turnpike surveyor, was present, but was not examined upon oath or otherwise; and then Congreve and Currie signed the following authority in writing: "It having been made appear to us, two of his majesty's justices of the peace, acting within and for the district and hundred of Wirral, in the county of Chester, by Harvey Crackenthorpe, the surveyor of the turnpike-roads from the city of Chester to the Woodside Ferry, in the township of Birkenhead, in the county of Chester, and from the said city to the Assembly House in Park-gate, in the township of Great Neston, in the said county, and from Great Neston to Woodside Ferry, and from the road leading from the city of Chester to Park-gate aforesaid, to the road leading from the same city to the said Woodside Ferry, that the maintenance and repair of the said roads can be more effectually carried on by a composition in money than by a performance of the statute duty in kind; we do hereby authorize the said Harvey Crackenthorpe to require such composition, in money, in lieu of the whole statute duty, from the several persons who are bound by law to perform such statute duty;" and they fixed the rates of composition, for a cart and three horses, one driver, and one labourer, by the day, at 8s. 4d. On the 12th October, 1819, Johnson, the surto collect a com- veyor of the highways of the township of Hooton, received from position in lieu Crackenthorpe, the surveyor of the turnpike-road, a demand in of statute duty, writing of a list of the several persons liable to statute duty in that township, and an account of the yearly value of the lands, &c. which they respectively occupied. On the 27th October, Johnson returned the list required to Crackenthorpe, and in that return the plaintiff was mentioned as the owner and occupier of lands and tithes of the yearly value of 1170l. The turnpike surveyor then made an assessment upon the whole annual value, of 6d. in the pound, the plaintiff's proportion of which was 291. 5s. This assessment was made on the assumption that three days' statute duty was required to repair the roads in the township. (a) The whole line many days sta tute duty would be required to put the road into complete repair, the composition being demandable only in respect of that number of days statute duty. It seems, that in order to justify two magistrates in grant ing an authority it should be made to appear upon oath, to both the magis trates present, that the road can be more effectually repaired by such composition. (a) By stat. 54 G. 3. c. 109. § 5. (2 Burn, 684.) the rate of composition, in lieu of statute duty, for every 20s. annual value, is to be a fiftieth part of the sum fixed by the justices as the composition for one day's labour of a cart and three horses and two able men. In this case that sum was 8s. 4d., of which twopence was the fiftieth part; and the whole statute duty being six days for every 501. annual value, one shilling in the pound would be the sum required. But by others. It seems, also, that where the composition is to be collected in several town that, in the duty, is advis ship. of road, for the repair of which the composition was required, Stanley v. was forty miles in extent, and passed through twenty-nine town- Fielden and ships. At the time the demand was made upon the plaintiff, that part of the turnpike-road which passed through the township of Hooton, and which was only fifty-nine yards in length, was in perfect repair, and in March 1820, the turnpike surveyor offered to return 267. of the sum levied, and stated at the time, that in the course of that year only 31. had been expended in repairing the ships, it ought road in that township. Mr. Currie, the magistrate, who, as well as to appear on the the defendant Congreve, had signed the authority to collect the face of the aucomposition, proved, that he had frequently conversed with Cracken-thority itself, thorpe on the necessity of having a composition before the autho- judgment of the rity was signed, and that he had desired the clerk to the magis magistrates, a trates to come prepared with an authority, that he had expressed composition in his approval of the measure, that he had frequently conversed with lieu of statute Congreve, and that they were agreed upon the expediency of the able in each measure; the subject was within their own knowledge, and they particular towntherefore signed the authority. Upon these facts the CHIEF JUSTICE stated to the jury, that upon the evidence, it had not been made to appear by the surveyors of the roads to the justices, that a composition in lieu of statute duty was necessary; that the surveyor ought at all events to have been examined in the presence of both the magistrates, whereas in fact one only had examined him, and communicated the information to the other; and as the result of the enquiry was to affect the property of many persons, it was fit that, (if not on oath), it should at least be of a satisfactory nature. The jury found a verdict for the plaintiff. A rule nisi for a nonsuit or a new trial having been obtained in last Easter term; first, upon the ground taken at the trial, that the warrant contained prima facie evidence of the jurisdiction of the magistrates, and therefore, that there ought to have been a nonsuit; secondly, that there was evidence given on the part of the defendant, to shew that it had been made sufficiently to appear to the justices by the surveyor, that a composition was necessary instead of statute duty; and, thirdly, that at all events the defendant Fielden was entitled to a verdict, inasmuch as he had not signed the authority to the surveyor to collect the composition, but merely the warrant, and that he was justified in so doing, by the documents referred to in the warrants. At the time of granting the rule, the Lord C. J. ABBOTT said, that it was important that justices should know the mode in which they are to exercise their authority. At the same time, the opinion of the Court was then very strong, that wherever an act of parliament required justices to take certain steps on some matter being made to appear to them, that matter must be made to appear to them on oath. - After argument against, and in support of, the rule, ABBOTT C. J. I am of opinion that enough has not been done to legalize the demand of this specific sum of money from the plaintiff. It appears from the evidence, that there had been an adjudication of two magistrates that a composition should be paid in lieu of statute duty in kind, and also an adjudication by which the composition was fixed to be at the rate the local turnpike act, the trustees of the turnpike road were entitled to require only three days' statute duty from the several townships through which the road ran, the composition for which would, of course, be sixpence in the pound. SUPP. R Stanley v. Fielden and others. of 8s. 4d. for a cart, three horses, a driver, and a labourer. Before, however, it can be ascertained how much any individual ought to pay as a composition in lieu of statute duty, it must be ascertained in some manner and by some competent authority how many days' labour will be required to repair the road. Now, that certainly has not been done here, in distinct terms, in this case. It appears upon the evidence, that the turnpike surveyor having first required, from the surveyor of the highways of the township, a list of the several persons liable to statute duty, made an assessment at the rate of sixpence in the pound upon the whole annual value returned. He seems to have taken it for granted that he was entitled to require from the several townships through which the road passed, a composition for the whole statute duty which, by law, he was entitled to demand, whatever the state of the roads might be. Now, I am of opinion, that he had no such right. If there were no composition, the inhabitants of the several townships could only be called upon to do so many days' statute duty as would be absolutely necessary for the repair of the roads; and if a composition be called for instead of the statute duty, that composition ought to be an equivalent for that number of days' statute duty.— I think, therefore, in this case, that before the demand was made upon the plaintiff, it ought to have been ascertained, by persons having competent authority for that purpose, that so many days' statute duty would be required to put the road in question into a complete state of repair, and that it ought to have been notified to the inhabitants of the parish or township, that the composition required of them, of sixpence in the pound upon the annual value of their lands, was calculated upon the principle that it would require so many days' statute duty to repair the road. That not having been done in this case, I think, that the justices had no authority whatever to issue the warrant, and consequently that this rule must be discharged.-BAYLEY J. A magistrate is not to be answerable for granting a warrant, if at the time of granting it he has documents before him (which are the acts of other magistrates) from which it appears he was justified in granting the warrant. But if the want of jurisdiction is manifest from all the proceedings before him at the time, then he grants the warrant at his peril. Here, on the face of the original authority to collect the composition, there is a defect, which must have been obvious to the defendants. The composition allowed by law in lieu of statute duty, is in lieu of the statute duty required of each particular township, in respect of the roads in that township. The money to be raised, in this case, is not to constitute one general fund for the entire line of turnpike-road, but is specifically to be applied for the repair of that part of the road in the particular township. I think, that the magistrates ought, in the exercise of their discretion, on the face of the authority itself, to have shewn, that in their opinion, in each particular township, a composition in lieu of statute duty was adviseable. Here, upon the face of this authority, they do not appear distinctly to have exercised any such discretion, because they have only stated that the maintenance and repair of the said roads can be more effectually carried on by a composition in money than by a performance of the statute duty in kind. I therefore think, that there was a defect in the authority itself, which Mr. Fielden had an opportunity of observing. I also strongly incline to think, The others. though, upon that point, I do not mean to intimate any decided Stanley v. opinion, that it should be made to appear upon oath to both the Fielden and magistrates present that a composition was adviseable. ground, however, upon which I pronounce my judgment in this case, is this, that assuming the magistrates to have said, that there ought to have been a composition in this particular township for the repair of the roads there in lieu of statute duty, (which the warrant assumes them to have said,) I think that it should have been made to appear what the quantum of the composition was to be. That is in no respect ascertained as it ought to have been. — It has been insisted, that the communication made to Johnson by Crackenthorpe, that he required a composition calculated at 6d. in the pound, was an intimation, that he considered the whole of the composition to be requisite for the repair of the roads in that particular township. From the evidence in this case, I do not believe that Crackenthorpe ever exercised any judgment upon that point. He seems to have considered the whole sum collected to be one entire fund for the repair of the whole of the roads, and to have meant to collect in each township, to the utmost extent which by law he could collect. I am of opinion, that the communication by Crackenthorpe to Johnson of itself was not sufficient, but that it ought to have been notified to the inhabitants of the parish or township, that, in the judgment of the surveyor, it was necessary that there should be a composition in lieu of so many days' team work, in order that the parishioners might have had the opportunity of contesting the claim made upon them. That not having been done, I am of opinion, that there was not any evidence before Mr. Fielden to justify him in granting this warrant, because there never has been an assessment duly made and duly notified to the inhabitants of the parish. This rule must therefore be discharged. HOLROYD J. I think, that there was not sufficient evidence before the magistrates to authorize them to grant a warrant. There was no valid assessment so as to bind any person to the payment of any specific amount of composition, the number of days' statute duty required for repairing the road not having been ascertained or notified to the parish: and therefore, sufficient was not done to legalize this demand made upon the plaintiff. The magistrates, therefore, had no right to grant the warrant. R. D. (a) (a) BEST J. was (A.) Precept to the High Constable for appointing a Special Sessions for the Cutting and Pruning of Trees, Hedges, &c. &c. [See 2 Burn, 671. & 691, third line from the bottom, &c.] County of } To the High Constable of the Hundred of WE, two of his majesty's justices of the peace for the said county, (L. S.) absent at cham bers. |