[*612

the most active vestrymen is his immediate lessee. Again, the magistrates will not be compelled to issue their warrant, if there be another remedy. But the ninety-sixth section gives a remedy by action of *debt, bill, plaint, or information, in the courts of Westminster, or the courts of request. Thesiger and Adolphus, contrà. By seot. 88, the magistrate is "required" to grant the warrant, against any person "made liable;" and the distress is to be levied of the goods within the parishes "or elsewhere," showing that the absence of the party was contemplated. This is not a case where the legality is doubtful. As to the first objection, the words of sect. 92 leave no doubt that the actual assessment is the only criterion. If the landlord be improperly as sessed, the remedy is by appeal under sections 112, 113. As to the second objection, the ninety-third section fixes the liability on the collector, "to prevent any dispute" where the owner shall not "declare himself," or be "distinctly or certainly known." Now, Veal did receive these rents, and he does not appear to have paid them over at the time of receiving; so that he is clearly the collector within the meaning of the section. Nor is there any pretence for saying that the owner was declared or known. The name of the estate proves nothing: and Bachhoffner's personal knowledge that Spencer is the owner of houses near the houses which are the subject of this application, is neither distinct nor certain knowledge that he is owner of the latter, nor is it the knowledge of "the said vestrymen." Besides, if the wrong person be rated, he may appeal. The remedy given by sect. 96, is not exclusive but cumulative. There are no exclusive words in the section itself, and the section preceding gives the remedy by distress upon goods of occupiers, where the occupier is not the party rated that would include the case of houses assessed as mentioned in sect. 96, so that it is impossible to construe *that section exclusively. Again, [*613 the form of the distress warrant, in sect. 100, comprehends the present case. If, then, the remedy in sect. 96 be not exclusive, the fact of the cumulative remedy existing is no reason for not granting the distress warrant, espe cially as the remedy by action is very usually illusory, in the case of rates.

Lord DENMAN, Č. J. By this act a large and extraordinary power is conferred, of calling on the collector; and there may be good reason for making him liable, because he is in the receipt of the profits. But before we require the magistrate to exercise the power given him, of issuing his warrant, we must see that the power exists beyond a doubt. Now I doubt as to all the points. It is questionable whether the assessment, if not fairly made on the rent, creates a liability in the landlord, even although the words of the act (sect. 92,) are merely assessment or valuation." Then, besides the power of distress, a power is conferred by the statute, of charging the estate, and recovering by action. Where such a power as that exists, we cannot, in the exercise of our discretion, compel magistrates to act, unless we see very clearly that the act would be legal. It seems to me that the magistrates have done rightly in this case.

LITTLEDALE, J. We must not issue this mandamus unless the case be quite clear, or unless it appear that there was caprice on the part of the magistrates, or something at least to show that the refusal was not bonâ fide. If they have acted bonâ fide, it must be a very strong case to induce us to issue a mandamus. The justices are not indemnified. It is a pity that *acts of [*614 parliament like that in question do not contain a clause indemnifying magistrates for whatever they shall do in obedience to the mandate of this Court: the Court would then take upon itself to see whether the thing required were within the provisions of the act.

WILLIAMS, J. We ought to be very cautious how we compel magistrates by mandamus to enforce a remedy by distress; and if that were done here, Mr. Veal would be placed in a strange position, the landlord being out of the parish. The parties liable under stat. 43 Eliz. c. 2, s. 1, and s. 4, are the occupiers. Here I am not sure that we ought not to have more distinct information that

the landlord was not known; I should conjecture that the vestrymen did know him. At any rate, it would be a dangerous step to grant this mandamus.

Sir John Campbell applied for costs, on the ground of the application being against magistrates. [LITTLEDALE, J. It does not appear that cause is shewn on their behalf." Then the Court will give costs simply on the ground of the decision, which if complained of, being upheld.

Thesiger, and Adolphus, contended that it was a fair point for discussion.
PER CURIAM. This is not a case for costs.

Rule discharged, without costs.(a)

*615] *[The following case, decided in Trinity term, 1835, may conveniently be added here.]

The KING against YARBURGH GREAME, Esquire. Friday, May 29. The Court will not compel a magistrate, by mandamus, to issue a distress warrant for a parish highway rate, under st. 13 G. 3, c. 78, ss. 45, 67, made upon the occupier of lands within his district, if it appear that, in the magistrate's belief, and in fact, there is a legal doubt as to the occupier being liable to contribute to the repairs of the parish highways, and that the magistrate is likely to be sued if the warrant be granted and acted upon: and this, although the occupier has not appealed against the rate.

By a rate made under the Highway Act, 13 G. 3, c. 78, s. 45, for repairing the highways in the parish of Kilham, in the East Riding of Yorkshire, and signed and allowed January 4th, 1834, by two justices of the riding, James Hall was rated at 231. 17s. for a farm-house, &c., at Swaythorpe. Payment having been demanded and refused, Hall was summoned before two magistrates of the riding, at Bridlington, in February, 1834; but they refused to issue a distress warrant under s. 67, of the act, on the ground that, by an act (11 G. 3, c. 44, private), "for dividing, inclosing, and allotting the several open fields, lands, and grounds, within the township of Kilham on the Woulds, in the county of York," it was enacted, that the township of Kilham and the roads therein should be set out by commissioners, and that the roads so ascertained should be repaired by the inhabitants of the township in such manner as theretofore had been accustomed, and as by the laws of the land the then present highways then were or had been repaired: that Swaythorpe was not included under or affected by the award of the commissioners, but appeared thereby to be treated as no part of the township of Kilham; and that the rate was partly for repair of the roads of the township.

*616] *Hall was again rated for the same premises by a rate allowed on the 5th of April, 1834, and refused payment. On the 5th of July, Hall appeared at Beverley on summons before three magistrates of the riding, who refused to adjudicate on the application for a distress warrant, on the ground that the parish of Kilham was not within the district for which they usually acted, and also on account of the previous decision at Bridlington. A demand of both the rates was afterwards made on Hall, and payment refused by him; and on the 1st November, 1834, Hall appeared on summons at Bridlington, before the defendant, being one of the justices for the East Riding, and another justice of the same riding, and they refused to adjudicate on the application for a distress warrant, on the ground of the former proceedings at Beverley.

John Henderson, in Michaelmas term, 1834, obtained a rule nisi for a mandamus to the defendant to grant a distress warrant against Hall for the two rates. The defendant, in answer, made affidavit that he was advised and verily

(a) See the next case, Rex v. Trecothick, ante, p. 405, and Rex v. Mirehouse, post, p.

believed that the two assessments, so far as they affected Swaythorpe, or Hall, as the occupier thereof, were wholly illegal and void; and that he was advised and believed that Swaythorpe formed a hamlet repairing its own roads without contributing to the repair of the other roads in the parish (to which effect other affidavits were also put in); that he was advised and believed that if he granted the warrant, he should be liable to be sued, and would in fact be sued, by Hall, for any thing done under it; and also that the case had been twice heard and decided by magistrates of the East Riding, at Bridlington and Beverley [*617 respectively. *Hall made affidavit to the same effect, as to the illegality of the rates, and that he was determined to institute legal proceedings against any magistrate who should grant such warrant.

R. V. Richards, now shewed cause. This rule at any rate goes too far, the mandamus required being, not to hear the cases, but to grant a distress warrant at once. But further, the magistrate swears that he thinks the matter doubtful, and is advised and believes the assessments are unlawful, and that he will be subjected to legal proceedings if he issue his warrant. The Court will. abstain from compelling the magistrate to an act of which the legality is at least doubtful. This was the principle acted upon in Rex v. The Justices of Buckinghamshire. (a)

Sir F. Pollock, contrà. If the rate be illegal, on the grounds suggested, Hall ought to have appealed, under the eightieth section of stat. 13 G. 3, c. 78. In default of his doing so, the rate is legal, and the magistrate is in no danger of an action; no doubt being suggested as to Kilham being within his jurisdiction, or as to the legality of the rate in point of form. If a magistrate might refuse a warrant on the grounds here suggested, he might constitute himself a court of appeal. Rex v. Trecothick, ante, 405, is directly in point.

PER CURIAM.(b) We are not to subject the magistrate to risk, by compelling him to perform an act, where we see a legal probability that an action will be brought against him for doing it.

[*618

Rule discharged, with costs.(c)

(a) 3 Nev. & M. 68; and see S. C. (as Rex v. Morgan) p. 618, note (a), post: also Rex v. Justices of Buckinghamshire, 1 B. & C. 485.

(6) Lord Denman, C. J., Littledale, Patteson, and Williams, Js.

(c) The KING against GEORGE MORGAN and RICHARD DAYRELL, Esquires, Justices of BUCKINGHAMSHIRE.

A landlord permitted his tenant for years under a lease expiring in April, 1835, to give up the lands and farm-house in October, 1833, paying rent only until the day of quitting, and making a further payment and giving up the compensations he would have been entitled to as an outgoing tenant, in order to indemnify the landlord for loss to which he was subjected by the determining of the lease. The landlord did not take a new tenant, nor occupy the premises, except by putting a man into the farm-house to take care of it. The value of grass and clover on the lands from October to April was

60%.

After the tenant's departure, the landlord was rated to the poor as an occupier of the premises. He refused to pay the rate, but did not appeal; and, on his being summoned before two justices, they, after hearing the case, declined granting a distress warrant. On motion for a mandamus to them to grant such warrant,

Held. that this Court ought not to interfere, the justices having heard and exercised their judgment upon the application, and it being doubtful whether the landlord was properly rated as a beneficial occupier.

In Hilary term, 1834, a rule nisi was obtained for a mandamus to the above justices to levy on the goods of Adam Baynes, clerk, 57. 4s. assessed upon him for the relief of the poor of the parish of Adstock, Buckinghamshire. The rate was for a messuage, farm and lands, which had been in the occupation of a tenant for years, under a lease expiring April 6th, 1835. In October, 1833, the tenant, being in arrear as to his rent, and wishing to leave the premises, agreed with Mr. Baynes to pay the arrears of rent down to October 11th, and the further sum of 441. (equal to about one quarter's rent), to give up certain compensations which he would have been entitled to as a regularly outgoing tenant, and to surrender the lease, which surrender Baynes was to accept. The lease was surrendered on these terms, from the 11th of October, and the premises given up; and Mr. Baynes put

*In the Matter of ANN OLIVER. Monday, January 26.

A woman of advanced age had obtained a judgment by default, in ejectment, in the Common Pleas, against a tenant in possession; on which judgment possession had been obtained. She was not in the habit of managing her own business. An attorney of this Court, being employed by the tenant's landlord to set the judgment aside, and to have the landlord made a party to the proceedings, but who had not been employed in the original action, applied to her to sign a paper, agreeing that the judgment should be rescinded, and the parties placed in statu quo. At the time of the application and inquiry she did not know that possession had been obtained on the judgment; she was then alone, but mentioned that she had an attorney, whom she should consult. This Court ordered the first-mentioned attorney to deliver up the paper to be cancelled, though it was stated on his part that the proposal to abandon the benefit of the judg

a labouring man into the farm-house to take care of the buildings, but (with a trifling exception, which was explained) did no other act of occupation. No other tenant or occupier came in. The late tenant, if he had been regularly appraised out, would have had a claim on Baynes for about 401. From the time of his departure till the ensuing 6th of April, the herbage on some of the lands, and clover on others, would have been worth 60%. In a poor rate made October 25th, 1833, Baynes was rated as occupier of the farm, and, on his non-payment, a distress warrant was applied for. The justices refused it, on the ground that the departure of the tenant, who quitted because unable to carry on the farm, had been a loss to Baynes, and he had not, from that time, obtained any other tenant, or himself had any beneficial occupation, and, therefore, that a warrant of distress would have been illegal and vexatious, and would have subjected the magistrates to an action. Mr. Baynes also swore, in his affidavit in opposition to the rule, that no rent was in any way paid him by the late tenant for any period subsequent to the 11th of October; that the 441. were paid on other considerations, and that the compensations given up by the tenant were so abandoned as a remuneration to Baynes for losses, and for demands wholly independent of rent.

*619] *Adolphus, now shewed cause, and contended that the justices had decided rightly; and, at all events, that their decision was that of magistrates having jurisdiction, and having heard the case; and, consequently, ought not now to be interfered with. [Thesiger, contra, mentioned Rex v. The Justices of Middlesex, 2 Ld. Ken. 163, as an instance in which the Court had acted without reference to any supposed discretion in the justices.] That was when justices were supposed to be merely ministerial in levying the rate; but such a doctrine no longer prevails.

Thesiger, contra. In Rex v. The Justices of Buckinghamshire, 1 B. & C. 485, which was an application for a mandamus where justices had refused a distress warrant, the only doubt entertained by the Court as to granting the writ was, whether or not the party said to be in default was an occupier. In a case free from doubt the Court will interfere. The only question here is, whether there be a doubt that Mr. Baynes was the beneficial occupier. [TAUNTON, J. Was not that a question for the justices to decide?] If there was a dispute upon it, the ultimate decision was for the sessions, on appeal. But, under the circumstances here stated, Mr. Baynes clearly was a beneficial occupier. [TAUNTON, J. It does not follow that the landlord becomes an occupier when the tenant ceases to be so. The premises may remain unoccupied. Suppose the landlord cannot get a tenant; is he to be rated?] If he derives a benefit he must be rated in proportion. Here a benefit was derived, if only from the grass and clover. The profit might be small, but if the party was overrated he might have appealed. It is his fault that he has allowed the time of appeal to go by. [TAUNTON, J. Granting that this Court would interfere with the decision of the justices, the case ought to be a very clear one. LITTLEDALE, J. If a mandamus goes in this case, and a warrant is granted, the justices may be subjected to damages and costs.] Marshall v. Pitman, 9 Bing. 595, shews that, unless the rate was made without jurisdiction, an action would not lie. On the point as to occupation, Newling v. Pease, 1 B. & C. 437, is an authority. [TAUNTON, J. The corn-rent there was payable in respect of the property.]

Lord DESMAN, C. J. Is there any instance in which magistrates have been called upon to enforce a rate by distress contrary to their judgment? Here they have exercised their judgment, and I think we ought not to interfere.

LITTLEDALE, J. I think that we ought not to put it upon the justices in this case to enforce the rate by distress.

TAUNTON, J. I have already intimated my doubts as to the liability of the party, and they are so strong that I cannot say this mandamus ought to be granted.

(PATTESON, J., was in the Bail Court.)

Rule discharged.

ment proceeded from the female herself; and though affidavit was made of merits respecting the right of such attorney's employer to have the judgment set aside.

By the affidavit of Ann Oliver, it appeared that she was seventy-five years of age; that on the 5th of July last, two attorneys called upon her, while she was alone, and stated that a party named, for whom they acted, was taking steps to fecover back certain land which the deponent had recovered by an action of ejectment in Hilary term last, but of which, as far as she knew, possession had not then been taken on her behalf: the attorneys also told her that she had really no claim to the land, and that she would be put to great expense; and they asked her to give it up, adding, that otherwise the proceedings could not be delayed. The deponent proposed to send for her solicitor, but the attor neys objected to the delay; and one of them then wrote something, which she believed to be a consent to give up proceedings on her part as to the land recovered, the attorney telling her, that if she chose to proceed again, the paper would not prevent it, and adding, that it was probable that the party for whom he acted would adopt a line of conduct advantageous to the deponent in respect of the land. She was persuaded to sign the paper, which one of the attorneys took away; and she now further stated that she was not in the habit of managing her own business, and was anxious that the paper should be recalled and cancelled. There were other affidavits confirming the above particulars, and stating that the judgment had been obtained by default against the tenant in possession, and that actual possession on the judgment had been obtained on behalf of Mrs. Oliver before the time at which the paper was signed; that application had been made for a copy of the signed paper, and not answered; that one of the attorneys had admitted that he possessed the paper, but refused to give it up; that this party was an attorney of this Court; that Mrs. Oliver's memory and faculties were much impaired, and that she was not capable or in the habit of transacting her own business. On these affidavits, R. V. Richards, in Michaelmas term last, obtained a rule to shew cause why the attorney who was in possession of the paper should not deliver it up to be cancelled, and pay the costs of this application.

[*621

The affidavits of the two attorneys, in answer, stated that drafts of affidavits had been prepared, for the purpose of founding on them a motion to set aside the judgment: that they are employed by the landlord of the defendant against whom the judgment was recovered as tenant in possession: that, at the interview, Mrs. Oliver had said that she believed she was not entitled to the land, but had been advised to bring the ejectment: that she herself had suggested that parties should be placed in the same situation as before the action: that she never expressed a desire to consult her solicitor first, but said that she would see him afterwards: that the paper (which was set out) was a consent that the judgment should be rescinded, and the title adjudged and determined without reference to the proceedings in the *previous ejectment: that the paper was read to Mrs. Oliver before she signed it, and that she expressed [*622 herself satisfied with it: that she appeared perfectly competent: and that the attorney who held the paper had been always ready to give a copy of it, on being properly applied to, but that the applications had been made in an offensive manner and he persisted in not giving up the original. There were other affidavits, confirming some of the above particulars, and alleging merits as to the right of the party employing the attorneys to have the judgment rescinded; and it further appeared that the ejectment was brought in the Common Pleas It did not appear, from the affidavits on either side, that either of the attorneys had been employed in the original action of ejectment; but the attorney in whose hands the paper was, was employed by the landlord to set aside the judgment, and get the landlord made a party to the proceedings.

Sir W. W. Follett, Solicitor-General, and Kelly, now shewed cause, and insisted on merits as to the title, and on the fairness of the transaction.