1824.

MILLS against Funnell.

By a local act, giving to commissioners certain powers to

for the preserv

from the encroachments of the sea, it

that there

to the commis

sioners any rate or duty which they should

think fit to or

DECLARATION stated, that the plaintiff, treasurer to the commissioners acting under a certain act of parliament, passed in the 50th year of G. 3., entitled be exercised "An act to repeal an act, made in the 13th year of his ation of the present Majesty, for paving, lighting, and cleansing the town of B. town of Brighton, in the county of Sussex, and removing cro and preventing nuisances and annoyances therein; for was enacted regulating the market; for building and repairing should be paid groyns, to render the coast safe and commodious for landing coal and culm, and laying a duty thereon; and for making other provisions in lieu thereof; and for regulating weights and measures, and building a town-hall;" complained of the defendant of a plea, that he render to plaintiff (as such treasurer) 201. 8s. 4d., which he owed, &c.; for that whereas, after the passing of the act, to wit, on the 8th of May, 1822, at, &c., at a certain meeting of the commissioners then and there duly held in pursuance of the said act, they duly made a certain order in writing in pursuance of the act; by which said order the said commissioners then and there duly ordered and directed, that from the first day of May

then instant, for one year, a rate or duty should be paid of 3s. per chaldron on all sea-coal, culm, or other coal, which should be brought or delivered within the limits of the said town; the declaration then set out a similar order, duly made on the 30th April, 1823, to take effect from the 1st day of May then next, for one year, of which

der, not ex

ceeding the sum of 3s. for

every chaldron of coal brought or delivered

within the limits

of the town:

Held, that

under this act a duty was payable in respect of each quantity of coals, amounting to a chaldron, brought into

the town al

though at

different times

and in several

parcels, each

containing a less quantity than a chaldron.

1824.

MILLS against FUNNELL

said several premises defendant afterwards, to wit, on the day and year last aforesaid, at, &c. had notice; and plaintiff, treasurer as aforesaid, further saith, that the defendant, after the making of the said first-mentioned order, to wit, on the 10th of May, 1822, and on divers other days and times between that day and the day of exhibiting this bill, to wit, at, &c. brought and delivered, within the limits of the said town, divers large quantities, in the whole amounting to a large quantity, to wit, sixty-eight chaldrons and four bushels of coals, in quantities, on each of the said days and times, less than one chaldron, by means whereof, and according to the true intent and meaning of the act, defendant then and there became liable to pay, and ought to have paid to the commissioners, or to their collector for the time being, divers sums of money, as and for the rates and duties payable for and in respect of such coals so brought and delivered by defendant, within the limits of the said town as aforesaid, amounting in the whole to a large sum of money, to wit, the sum of 10l. 4s. 4d., being at and after the rate of 3s. for each chaldron of the same coals, whereby, and by force of the statute, an action accrued to the plaintiff, as treasurer of the commissioners as aforesaid, to demand and have of and from the defendant the said sum of 107. 4s. 4d., parcel of the sum above demanded. Plea, nil debet. The plaintiff having obtained a verdict, a rule nisi had been ob tained for arresting the judgment, on the ground that the first order of the commissioners was bad, because it was retrospective. Secondly, that the duty was claimed in respect of sixty-eight chaldrons and four bushels; that at all events no duty was payable in respect of the four bushels, and that an entire sum being claimed in

respect

respect of the whole quantity the count was bad. Thirdly, that the act of parliament did not give any right to a duty in respect of coals brought into the town, in less quantities than a chaldron. (a)

(a) The following is the clause of the statute upon which the principal question in the case was raised.

And whereas by the said recited act, section 107., it was enacted that the commissioners named and appointed in and by the same should be trustees for repairing, improving, maintaining, and preserving the groyns that had been erected for the preservation of the said town, and erecting and building any new ones, or such other works as should appear to them most proper for that purpose; and the sum of sixpence for every chaldron of sea coal, culm, and other coal that should be landed on the beach of the coast of the said town was directed to be paid to the said commissioners; and the commissioners were thereby empowered to borrow any sum of money not exceeding the sum of 1500l. upon the security of the said duty: And whereas the said commissioners did accordingly borrow the sum of 1500l. upon the credit of the said duty, great part of which is now due and owing: And whereas, since the passing of the said act, great encroachments have been made by the sea upon the coast adjoining the said town, and the said duty hath been found inadequate to the charges and expences of erecting new groyns, walls, and other fences or works, which are now necessary for the safety and protection of the said town against such encroachments; be it therefore enacted, that from and after the passing of this act, it shall and may be lawful to and for the said commissioners, and they are hereby authorised and required from time to time, as to them shall seem necessary and expedient, to repair, improve, and maintain, add to, alter, or remove the groyns, walls, or other fences or works already erected and built, or to be made, erected, and built, or to cause to be made, erected, and built, any new groyns, or other works whatever, which may appear to them necessary, requisite, or proper for the safety of the said town or any part thereof, or any part of the beach or shore within the said town; and that from and after the passing of this act there shall be paid to the said commissioners, or to their collector of collectors, or to such person or persons as they shall from time to time appoint to collect and receive the same, any rate or duty which the said commissioners shall think fit to order and direct, not exceeding the sum of three shillings for every chaldron of sea coal, culm, or other coal which shall or may be landed on the beach of the said town, or in any other manner by land-carriage, or otherwise brought or delivered within the limits of the said town.

VOL. II.

8 N

Marryat

1824.

MILLS

against FUNNELL.

1824,

MILLS against FUNNELL

Marryat and Long shewed cause. The order is not retrospective, it merely directs that the duty shall be levied in future for a year, to be calculated from the 1st of May preceding. If it be retrospective, it is bad for the by-gone time and good for the residue. Secondly, the duty is claimed for divers large quantities, amounting to a certain quantity, to wit, sixty-eight chaldrons and four bushels; being under a scilicet the quantity is immaterial. Thirdly, this act of parliament is more than remedial, it is conservative. The object is to preserve the town of Brighton against the encroachments of the sea; it ought, therefore, to be construed most liberally with reference to that object. Now if the construction contended for be adopted, the object of the legislature may be entirely defeated, because entire cargoes may be delivered within the limits of the town, without paying any duty, provided they be brought into the town in distinct parcels, each containing a less quantity than a chaldron.

Taddy Serjt. contrà. The first order is retrospective, and therefore wholly void, and the money being claimed under that order, the count is bad; 2dły, the duty is claimed in respect of an entire quantity, and no duty is payable, at all events, in respect of the four bushels. [Bayley J. In that case the plaintiff may have judgment for the sum claimed in respect of the sixtyeight chaldrons, and may enter a remittitur for the residue. In the case of Ingledew v. Cripps (a), an action of debt was brought on a covenant to pay so much for every hundred stacks of wood. The plaintiff claimed

an entire sum for so many hundred and a part of à hundred, and it was held upon demurrer that the plain

tiff might enter a remittitur as to the sum claimed for the part of a hundred, and have judgment for the residue.] The act of parliament imposes the duty upon every chaldron brought into the town. Now, in this case, in no instance was the quantity of a chaldron brought into the town. The duty therefore never attached. In Ingledew v. Cripps it was held, that under a covenant to pay so much for every hundred stacks of wood, the party is not liable to pay for a less quantity than a hundred. So on the same principle, the public are not bound to pay a duty for any quantity less than a chaldron.

BAYLEY J. I am of opinion, that the rule for arresting the judgment must be discharged. If the first order of the commissioners were retrospective, it would be void for the by-gone time, but good for the residue; for it clearly applies to such coals as should thereafter be brought into the town. The principal question in this case is, whether the duty imposed by the act of parliament attaches in respect of coals brought or delivered within the limits of the town in separate parcels containing a less quantity than a chaldron, but the aggregate amount of which exceeds a chaldron. The legislature contemplated, that the inhabitants of Brighton would derive a great benefit by having the coast rendered safe and commodious for landing coal and culm; and, therefore, thought it just that they should contribute to the expence which would necessarily be incurred in building and repairing groyns, and the other improve ments contemplated in the act. The 13 G. 3. c. 34. had imposed

3 N 2

1824.

MILLS

against FUNNELL