7

Ex. CH.]

WARD AND ANOTHER v. LOWNDES.

Held, also (affirming the judgment of the court below),
that a plea, founded on the 89th section of the Public
Health Act 1848, which stated that "the cause of
claim for such writ did not accrue within six months
before action brought, and that the said debts were
not nor are a charge or expense incurred by the said
local board within six months before writ, or within
six months before demand of the said rate,” was bad; |
that the 89th section does not apply to charges and
expenses incurred by the commissioners and trans-
ferred by them to the local board of health, which
were made a charge upon the rates, but that it was
intended solely to prohibit retrospective rutes for
charges and expenses incurred by the local board
more than six months before the rate.
Held further (affirming the judgment of the court below),
that the amount of the debt might be ascertained by the
verdict of a jury in an action in which the writ of
mandamus was claimed.

[Ex. CH. Health Supplemental Act 1855, by which order the the declaration mentioned were due and owing Public Health Act 1848 was applied to Tunstall, to the plaintiffs, the General Board of Health, the powers of the improvement commissio..ers ceased, in the Public Health Act 1848 mentioned, duly and and their property, &c., was transferred to the Tun-in pursuance of the powers and provisions of the laststall Local Board of Health; and it was ordered mentioned Act, made a certain provisional order under that debts contracted by the commissioners should be their hands and seal of office and duly published and satisfied by the local board out of such parts of the deposited the same as by the last-mentioned Act is transferred property as would have been chargeable directed, and that afterwards by the Public Health therewith if such order had not been made, and Supplemental Act 1855 it was enacted that the said should be paid by the local board as by the com- provisional order should be, and the same was thereby missioners, provided that if such property was insuffi- confirmed and made absolute. And the plaintiff's cient, the deficiency should be charged upon the rates further say that in and by the said order it was, leviable under the Public Health Act 1848. Plain- and is amongst other things, ordered and directed tiff's brought this action more than six years after the that the Public Health Act 1848, should apply to debt accrued, and claimed a writ of mandamus to and be in force within and throughout the entire area, levy a rate for the payment of the debt: places and parts of places comprised within the Deld (affirming the judgment of the court below), boundaries of the said township of Tunstall, and that a plea of the Statute of Limitations was that the said township should be and constitute a bad, as being no bar to the claim for a man- district for the purpose of the said Public Health Act damus: accordingly; that the local board of health to be elected for the said township should consist of twentyfour persons; that such parts of the said Tunstall Improvement Act 1847 as were specified in the schedule to the said order should be repealed, except as in the said order is excepted; that the powers, authorities and duties of the commissioners for the time being acting in the execution of the Tunstall Improvement Act 1847 should cease; that all the property and estate of the said commissioners acting in execution of the Tunstall Improvement Act 1847 should be transferred to the Tunstall board of health, and should, as near as circumstances would permit, be held by the said local board of health upon the same trusts and for the same purposes as by the said commissioners; that all debts, moneys and securities for money contracted or payable by the commissioners should be satisfied by the said local board out of such parts of the said transferred property and estate as would have been chargeable therewith if the said order had not been Declaration. Henry Ward and Henry Ward the made, and should be paid and satisfied by the said younger sue Joseph Lowndes as, and who at the com- local board as by the said commissioners, provided mencement of the suit was, the clerk to the Local always that if such property and estate were insuffiBoard of Health for the township of Tunstall, duly cient for that purpose, the deficiency should be charged appointed under the provisions and for the purposes of upon the rates leviable under the said Public Health the Public Health Act 1848, for that after the making Act 1848, in the parts only which would have been and passing of the Tunstall Improvement Act 1847, chargeable with such deficiency if the said order had and before the making the provisional order hereinafter not been made. And the plaintiff's further say mentioned, the Tunstall Improvement Commissioners that by the said order, so confirmed as aforesaid, in the last-mentioned Act mentioned, in pursuance of certain property and estate of the said Tunits provisions, published an advertisement, offering a stall Improvement Commissioners became and was premium of 20l. to the architect who should produce before this suit transferred to the said local board of the best plan for a covered market-house and hotel, health, which last-mentioned property and estate provided that the person furnishing the selected plans would, if the said order had not been made, have been should not afterwards be employed as architect for the chargeable with the said debts and moneys so due and said buildings, and the plaintiff's say they being archi-owing by the said commissioners to the plaintiffs as tects, produced a plan which was the best and most aforesaid, and which at the commencement of this suit approved for the said covered market-house and hotel, were in the hands of the said local board of health, and thereby became entitled to receive from the said and sufficient to satisfy and applicable to the satisfaccommissioners the said premium of 20., and the tion and payment of the said debts and moneys so due plaintiff's were not, nor was either of them, employed as and owing to the plaintiffs, and out of which the said architects for the said buildings, yet the commissioners local board of health ought to have paid and satisfied did not pay the said premium, which at the time of the same; and though everything has been done by the making the provisional order hereinafter mentioned the plaintiffs on their parts, and everything has hapwas wholly due to the plaintiffs. And the plaintiffs pened necessary to entitle them to be satisfied their further say that after the passing of the said Tunstall said debts and moneys out of the last-mentioned proImprovement Act, and before and at the time of the perty and estate, yet the said local board of health making of the provisional order hereinafter mentioned, have not paid or satisfied the same or any part thereof. the said commissioners became and were indebted to And the plaintiffs further say, that after the making of the plaintiffs for work done and materials provided by the the said order, and after the said property and estate plaintifs for the said commissioners, at their request, of the said commissioners were so transferred as aforein preparing and altering certain plans and estimates said, the said property and estate so transferred were for a new market place and buildings, then proposed insufficient for the purpose of satisfying certain of the to be erected by the said commissioners under and in debts and moneys theretofore contracted and payable pursuance of the powers and provisions of the last-by the said commissioners, and which said property and mentioned Act. And the plaintiffs further say that estate would have been chargeable therewith if the afterwards, and whilst all the said moneys in said order had not been made; and thereupon the said

Ex. CH.]

WARD AND ANOTHER v. LOWNDES.

[Ex. CH.

This debt became a charge upon the rate as soon as the first, and for the purpose of ascertaining what are the order was published and confirmed. [MARTIN, B. the allegations referred to we must look to it. The -Is not the six months confined to rates which they are first count then alleges a contract out of which the willing to make? In the judgment of Erle, C. J., with claim had accrued and the circumstances under which reference to the case of Waddington v. The City of the defendant's liability arose, and it concludes with London Union, 28 L. J. 113, M. C., heard before him claiming 5007; then the second count incorporates by and the other judges of the Court of Q.B., when he sat reference the allegations in the first, and following the there, and communicated by him to me, there is a dis- form required by the C. L. P. A. 1854, concludes by tinction between rates made for the poor generally, and claiming a writ of mandamus commanding the defendrates made under an Act of Parliament.] Lord Camp-ant to levy a rate for the payment of the said debts and bell, C.J. in his judgment in the court below says: "The moneys so due and owing to the plaintiffs; but the 89th section applies only to rates to be made to defray ex-amount is unascertained, and the defect is not supplied penses incurred by the board, and not to cases like the present, where the charge is cast upon the rates. When by Act of Parliament it is provided that a debt shall be a charge upon the rates, that impliedly gives a power to raise a rate to answer the charge." The six months began to run as soon as the claim became a charge, and it became a charge as soon as there was a deficiency. [WILLIAMS, J. The insufficiency of the fund is a fact which exists, although it may not be ascertained.] Lord Campbell seems to have thought that a special rate might have been made to satisfy this demand; but that is not so. The order says that if the property and estate is insufficient, the insufficiency should be charged upon rates leviable under the Public Health Act; this was a charge incurred after and by reason of the transfer. [BYLES, J.-Do you maintain that if there had been no other demand and no other claim, a rate could have been inade ?] Yes; a general rate ought to have been made as soon as the debt accrued, and within six months after. [MARTIN, B.-Suppose they deny their liability and so postpone it for more than six months.] That supposition is explained away in Reg. v. Local Board of Rotherham, 8 E. & B. 906. The judgment would be a fresh charge, for which a rate might be made. Why should persons coming into the parish five or six years after be rated for these expenses? [MARTIN, B.-Because they had the misfortune to have bad commissioners.] All the cases were fully considered by this court in the case of Waddington v. City of London, 28 L. J. 113, M. C.; and there it was held by this court, reversing the judgment of the Q. B., that the contribution order made by the guardians was wholly invalid, as being made in part to pay old debts; that the guardians had no power by law to make a retrospective order, nor overseers to make a retrospective poor-rate. The statute was intended to make a limitation, and the Legislature thought six months a reason able time. The decision of the court below was wrong, for according to it there would be no limit. Then, as to the fifteenth plea. That plea is a good answer to the mandamus. [WILLES, J.-The jury have found, as to the 201., for the defendant; the Statute of Limitations does not apply to such a proceeding as this.] Then I am entitled to arrest the judgment. You can only proceed by mandamus in cases where you could proceed by action against a private individual. This is an ordinary debt for work and labour. Kendall v. King, 17 C.B. 483, shows an action may be brought against the committee of a lunatic asylum on a contract entered into by them for plans, though the judgment could not be enforced. The writ of mandamus is a sort of statutable execution given by the C.L.P.A. 1854, but the Statute of Limitations is a good bar. This is neither a specialty debt nor a statutory debt, and the fifteenth plea is a good bar, and the judgment of the court on that plea ought to be for the defendant. The count in the declaration praying a mandamus is bad in arrest of judgment. The point taken in the court below was that you could not have a prayer for a mandames for unliquidated damages. What is there that gives the jury the right to ascertain an amount? The first count was abandoned, but the second refers to

by the claim for 5007. in the first count. There must be an action in which the amount may be ascertained, and the question of right be established. No new obligation was created by the C. L. P. A., but only a more convenient mode of procedure. [CHANNELL, B.-Must we not take it upon this record that there is a sufficient debt alleged?] There is no amount stated; the amount must be known and demanded, and payment refused. How can a jury assess and fix a proper amount? [CROWDER, J.— They have done so.] Yes; but they were not warranted in so doing by the record. [BYLES, J.-The record says that the commissioners owed the plaintiff's then a large sum of money for work and labour.] Yes; but the amount is not stated; no specific amount is claimed. [WILLES, J.-I believe in the old books it would not be difficult to find cases in which plaintiff's had failed in actions of debt for want of proof of the amount alleged to a farthing; then, to remedy that, the action of indebitatus assumpsit was introduced; and in course of time the judges became accustomed to that, and their minds being softened, they applied the same practice to actions of debt; and then the C. L. P. A. altered that, and said that it should not be necessary to state an amount in any case. Can we hold that in this case it was intended by the Legislature that the courts should act differently to what they do in other cases?]

Dowdeswell (Pigott, Serjt. with him) contra.The limitation of six months for making retrospective rates points to debts incurred by the local boards themselves, and not to such as this, which is imposed by statute: (see 2 Chitt. Stats. 370, note C.) The subsequent Act (18 & 19 Vict. c. 125, ss. 10, 11), confirming the provisional order, makes that clear. That order, when so confirmed, acquired the force of an Act of Parliament. Considerable property was vested in the board of health, and in consideration they took upon themselves the debts and liabilities of the cominissioners, and they were to pay and satisfy them out of the property and estate, and if they were insufficient for that purpose, the deficiency was to be charged upon the rates leviable under the Public Health Act 1848. Not only were debts to be satisfied, but securities also; could it therefore be held that a man holding a bond must come and claim it within six months? Is it to be supposed that the Act should intend to impose on a person who had the security not only of the rates, but also of the property, a condition that if he did not come in within six months he should lose all right? Then it is said that an action should be brought and judgment recovered; but the Act is not to be so construed. [BYLES, J.-Would an action lie by the present plaintiff's against the local board under the words of the order?] Not unless they had funds; it would be necessary to aver that defendants had funds. How could the plaintin's know anything of the affairs of the local board of health? It would be the greatest injustice to creditors, and it cannot be supposed that the statute intended to impose on creditors the necessity of immediately rushing into litigation. The words of the statute and order are clear; the one imposes a limit, the other none.

The COURT intimated that they were all of opinion that the statute of James was no bar.

M. Smith, Q.C. in reply.-The current of the cases and of legislation has Leen to prevent those who do not incur liabilities from being saddled with them. The 89th section says that "the local board of health may make and levy the said special and general district rates, or any or either of them, prospectively, in order to raise money for the payment of future charges and expenses; or retrospectively, in order to raise money for the payment of charges and expenses which may have been incurred at any time within six months from the making of the rate.' The local board are placed in the position of the commissioners. How is an amount of unliquidated damages to be ascertained? The work might be badly done, or there might be other circumstances constituting a good defence. The new body are placed in the position of the old, with all their rights and liabilities, and the right of action is transferred with other things. The maxim vigi antibus et non dormientibus jura subveniunt applies; here the plaintiff's have slept upon their rights, which is not permitted; whereas in the present case the body upon whom the burden is to fall is a fluctuating one. In 1855 this claim became a charge upon the rates, and an action might then have been brought against the commissioners, and the judgment would have been a new charge. The expression "charges and expenses incurred" cannot mean voluntary charges. The case of bonds, put by the other side, is not applicable. This is an implied contract, but every instalment on a bond would become a fresh charge. The case does not come within the Act, and no rate can lawfully be made to pay this debt. Southampton Bridge Company v. Local Board of Southampton, 8 E. & B. 801, was cited.

[ADM

answer to this demand? The plea is general; it says that the alleged causes of action did not accrue withan six years froin the commencement of the suit; but there is no statute which limits the time within which a party may seek his remedy by mandamus. Then as to the declaration, I think the plaintiff has averred everything necessary to enable him to obtain this remedy, and has shown sufficient to entitle him to a mandamus.

MARTIN, B.-I am of the same opinion, and I think that to yield to Mr. Smith's argument would be to give a strained construction, and unsettle the natural meaning of the words used; and as to the sixteenth plea, I think it is bad. With respect to the fifteenth plea, the Statute of Limitations, I am not aware that there is any limitation of six years to a claim for the writ of mandamus. I must not be understood to say that if the debt had been barred, and that had been properly pleaded, that it would not be a good plea; but here it is not so pleaded, but only to the claim for the mandamus. I think the judgment should be affirmed.

CROWDER, J.-1 ain of the same opinion. [His Lordship read the 89th section of the Act and the sixteenth plea.] The Court of Q.B. held that the plaintiffs' claim was not a charge incurred by the local board, and it seems to me that it would be difficult to say when it could be a charge incurred by them within. the meaning of the 89th section. Here, beyond all doubt, the charge was incurred by the commissioners under the local Act, and that charge was transferred. to the local board. But when was it incurred? It cannot be at the time of transfer, and can we say this is such a charge as is to be levied under the 89th section? Norate could be levied until a deficiency was ascertained. After the transfer of the debt to the local board, some period of time must elapse before the deficiency was ascertained. It must be either for the plaintiffs or for the defendant to ascertain it; but in either case the six months might elapse before it was ascertained. The contention that the statute could have intended such injustice cannot be supported. The sixteenth plea, therefore, is no answer. As to the fifteenth plea, looking at the pleadings, and that it is pleaded to the mandamus, I think it does not apply; and as to the point in arrest of judgment, I think that the declaration sets out all that is necessary to entitle the plaintiff to a mandamus, and that therefore the judgment of the court below ought to be affirmed.

WILLES, J. concurred.

CHANNELL, B.-I am of the same opinion. I adopt the arguments of the plaintiff's and the judgments of my learned brothers as to the fifteenth plea, and I think the construction put by Mr. Dowdeswell upon the 89th section was the correct one, and I think the judgment of the court below should be affirmed.

WILLIAMS, J.—I am of opinion that the judgment of the Q. B. must be affirmed. The first question is, whether the sixteenth plea is a good answer, and whether the provision contained in the 89th section of the Public Health Act 1848 applies to such a charge as this. I am of opinion that it does not. The 16th plea says that the alleged cause of claim of the writ of mandamus did not accrue within six calendar months before the suit, and that the alleged debts and moneys, or any part thereof, were not, nor are, a charge or expense incurred by the local board of health at any time within six calendar months before the suit, or within six calendar months before the demand for the rate; wherefore the defendant, or the local board, cannot lawfully make a rate for payment thereof. Looking at the language of the Act, I do not think that the present demand is such a charge incurred by them within the meaning of that section. The debt cannot be said to have been incurred by them; it was incurred by the commissioners, and was transferred to them; and it is not therefore within the language employed in the Act, namely, a charge incurred by them. To hold the contrary would be putting a harsh construction upon the words of the section, and lead to injustice to the plaintiff's. Are the six months, beyond which the defendant says the rate cannot be levied, to begin to run from the date of the order of transfer to the local board, or from the time of ascertaining the deficiency in the property? But in either way, to put the construction for which Mr. Smith contended would be to perpetrate an injustice that the Act could never have contemplated. Six months might not be sufficient time for ascertaining whether there were assets to meet the claim; then, Reported by VERNON LUSHINGTON, Esq., Barrister-at-Law.

inasmuch as it is plain that this proceeding cannot be sustained unless there is an ascertained deficiency, it would be driving the plaintiffs to proceed at their peril, and hard indeed to make them ascertain within six months and might be utterly impossible. On the whole, I think that plea is bad. Then as to the fifteenth plea, is the plea of the Statute of Limitations an

BYLES, J.-I think that this declaration is good, and that the fifteenth plea is no answer to the claim for the mandamus. The 68th section of the C.L.P.A. 1854 provides a mode for enforcing a duty by mandamus and applies to all cases where a man has a duty to discharge; but that is not a proceeding to which the statute of James is applicable. On the whole, I am inclined to agree with the rest of the court, that the judgment of the court below should be affirmed. Judyment affirmed.

COURT OF ADMIRALTY.

Nov. 3 and Dec. 2.
THE PRISCILLA.

Bottomry-Liability of cargo-Marshalling of

assets.

Where there is a creditor on two funds and another creditor on one only of those funds, the assets will

ADM.]

THE PRISCILLA.

[ADM.

Twiss, Q.C., on behalf of the holders of a bottomry bond on ship, freight and cargo, the amount of which had been pronounced for, moved the court to order the bond to be paid out of the proceeds of the ship and freight lying in the registry.

Wambey, on behalf of the holders of a previous bond on ship and freight only, contra.-If this motion is granted, the holders of the first bond will be altogether unpaid. The holders of the last bond have two funds to resort to, the holders of the first bond but one; the principle, therefore, of equitable marshalling of assets is applicable: (Lanoy v. Duke of Athol, 2 Atk. 446; Aldrich v. Cooper, 8 Ves. 388; The Dowthorpe, 4 N. of C. 264; The Constancia, 2 N. of C. 285; The Trident, 1 W. R. 35.)

The Queen's Advocate for the owners of cargo.As to the last bond, the ship and freight must be exhausted before the cargo is touched: (Prince Regent, reported in the Dowthorpe, 4 N. of C. 272.) As to the first bond, it was executed before the cargo was put on board, without the consent or knowledge of the owners of the cargo, and they never had any interest in the bond at all.

Dr. LUSHINGTON.-I shall take time to consider my judgment. If the value at stake was not so small, I should have ordered an act on petition.

be equitably marshalled, if it can be done without | This bond is stated to have been given under the violating a rule entitled to preferential observance. following circumstances: The vessel was lying at ConBut cargo hypothecated cannot be resorted to for pay-stantinople under charter for Odessa and England, and ment of any bottomry bond until ship and freight having been damaged by collision with the African was are exhausted. bottomried to repair damages; the bond was given Where, therefore, there are two bottomry bonds, the with consent of the owner. The ship arrived in London first in date on ship and freight only, and the other on the 13th April 1859, and the damages recovered or last bond on ship, freight and cargo, and ship for the collision amounting to 2221. 7s. 1d. were and freight are insufficient to discharge both bonds, assigned to the bondholder in part liquidation of his the last bond, which is entitled to priority, must claim. The demands are in round numbers for the nevertheless be paid out of ship and freight. three bonds 7681. The fund available from the proThe Prince Regent, 2 N. of C. 272, followed; dictum ceeds of the ship and freight is 410. The deficiency in the Trident, 1 W. R. 35, overruled. therefore, if the cargo is not made at all liable, will be 3584. The sum due on the last bond (bond No. 3) is 2614. Assuming that it is paid out of the ship and freight, there will remain out of the ship and freight 1591. applicable to the discharge of bond No. 2. Bond No. 2 is for 1207., and therefore for bond No. 1 there will remain only 391; in fact, nothing at all, for the costs will have amounted to a very much larger sum than that small balance: bond No. 1 will be unpaid. The value of the cargo is 600l. The cargo has been arrested by the holders of bond No. 3, and bail given. The cargo was also arrested by the holders of bond No. 2, but allowed to be released without bail As to bond No. 1, it was on ship and freight only, and therefore the holders could not arrest the cargo The present motion is on behalf of the holders of bond No. 3. They ask to be paid out of the ship and freight. The effect of granting their prayer, if a similar course is taken with bond No. 2, will be that nothing will be left for the satisfaction of bond No. 1. The effect will also be that the cargo will be wholly exonerated from any payment to any of the bonds. The substantial question then is, whether the cargo ought not to be made to contribute to the discharge of the two last executed bonds, so as to leave a fund for the payment of the first-executed bond. The circumstance peculiar to this case-if it can be deemed peculiar-is, that the cargo was not laden until Nov. 1858, after the execution of the first-executed bond, and previous to the other two. This circumstance would be perfectly fatal to the holders of bond No. 1 asking to be paid out of the cargo, which was not hypothecated to them; but they make no such demand; they only ask that the carge shall be inade applicable to the payment of bond No. 3, which does bind the cargo as well as the ship and freight. Several cases were cited in argument, to which I will now shortly advert. The first is the Dowthorpe, 4 N. of C. 264. That was a most complicated case, raising many questions, and some of them of difficulty; but upon a consideration of all that is reported, it does not appear to me to have any stringent bearing on the present question. The dispute there was as to the payment of a bottomry bond on ship and frieght, and certain other charges, as wages and pilotage; there was no reference whatever to any demands which could affect the cargo. The case is only useful for the present purpose as containing a report of the Prince Regent, Ib. 272. The case of the Constancia, 2 N. of C. 285, was also a most peculiar one. There were three bonds: first, on ship alone; second, on cargo alone; third, on ship alone. The case was brought on by motion only. The decision in that case cannot affect the present. If there were doubtful questions, they were whether the court was right in giving preference to the first bond over the second, because the ship was not mentioned in the second bond; and whether the court was right in holding the ship and freight tacitly hypothecated in the second bond-both very difficult questions, but not hujus loci. I see no reason to depart from what I said in that case, but I cannot apply it to the present. The Trident, 1 W. R. 29, was also cited. The main question in that case was wholly different from the present; it was whether a bond granted at Plymouth on a vessel be

the bond.

the

Dec. 2.-The learned JUDGE gave judgment as follows:-This motion was made on behalf of a bottomry bondholder, for the appropriation of the proceeds of ship and freight to the liquidation of his claims under The balance of proceeds in the registry is clearly insufficient to discharge all the claims under the three several bonds admitted to be valid. The last bottomry bond, which I shall call bond No. 3, is dated the 13th Jan. 1859, at Hernopolis, in Syra. It states that the vessel was bound from Odessa to London with peas, and had been compelled to put into Syra. The ship, freight and cargo are hypothecated, and the principal and interest now due upon the bond amount to 2611. 48. The proceedings went by default against the ship and freight; but the action was entered against cargo also, and bail given. The validity of this bond is admitted on all hands, and that the amount must be paid. The question is, out of what fund-the ship and freight only, or whether the cargo ought to contribute. The bond next antecedent in date, which I shall call bond No. 2, was granted at Odessa on the 11th Dec. 1858, and purports to bind the ship and cargo. It appears that the ship had previously sailed from Odessa with her cargo, but had been compelled by stress of weather to put back. The principal and interest due upon this bond amount to 1201. The action was brought in April 1859, and ship and cargo were arrested. The cargo was released with out bail by consent. The ship was proceeded against and sold, and the proceeds brought into court together with the freight. The next antecedent, or first bond, bond No. 1, is dated Constantinople, the 12th Oct. 1858. No proceedings were had on this bond till June 1859, when an action was entered, and ship and freight arrested. This bond is upon the ship and freight, and is for a voyage from Constantinople to Odessa and England, the amount 500l., with 22 per cent. interest.