tract; he must go to the port of delivery before he is entitled. to any thing. If that be so at common law, it becomes necessary to inquire whether this act of parliament has made any difference in this case. The statute gives the proprietor of the navigation a toll of 4s. per ton for goods carried from Reading to Newbury; and gives him the power of collecting those tolls where he pleases; but that does not alter the contract between the owner of the goods and the proprietor of the navigation: and though, according to the case of Rivers v. Page, the tolls may be demanded before the voyage is performed, yet if the voyage be not afterwards completed, the owner of the goods may recover back the tolls in an action for money had and received. The clause in this act enabling the proprietor to collect the tolls in any place he chooses, was introduced for his benefit; but still the tolls must be demanded according to the rules of law respecting the carriage of goods from one place to another. This case falls directly within the principle of that of the Aire and Calder; where it was held that the tolls ought to be rated in the parish where they become due; and that is the place of delivery. In the report of that case it is stated that the undertakers were intitled to tolls "according to the "distance which such goods should be carried;" that is, the whole voyage: according to my recollection the act of parliament in that case did not say that the undertakers should be entitled to so much for each mile; and though an act does mention the rate per mile, it is only used as the means of ascertaining what is due for the whole voyage; for the toll cannot be due till the voyage be completed. GROSE, J.-The short question is, Whether this property be liable to be rated in Newbury?-which depends on this: At what place are these tolls to be considered as property? Most clearly, at the place where they become due; and I think they become due where the voyage is finished, for till then the carrier could not recover any thing at common law; but it has been said that a case was decided in the Common Pleas, in which it was held that a distress might be taken for tolls before the voyage is perfected: if such were the case, it must have been decided on the special provision in this act, which enables the proprietor of this navigation to collect the tolls where he pleases; but that clause did not mean to say that the tolls did not become due in law at the place where the voyage was completed, and where the goods were landed and delivered. The 1792. The KING against PAGE. 1792. The KING against PAGE. The observation of my brother Buller is decisive on this head, that even after a distress the owner of the goods might recover back the tolls, if the voyage were not afterwards performed, and the goods delivered according to the contract. Then it was argued that the appellant should be rated for these tolls at Aldermaston, where they are collected: but if we should so determine this case, we should open a door to fraud; for then the proprietor would fix a place of collection in some parish where the poor rates are the lightest, which could not be within the meaning of the act. Order of Sessions affirmed. Saturday, Feb. 3d. tices which ap 66 The KING against R. MORRIS. An order of jus- TWO justices in June 1791, appointed the defendant, "being "a substantial householder of the parish of Llangendeirn, in pointed A. "being a sub"the county of Caermarthen, to be overseer of the poor of the stantial householder of the "hamlet of Velindre, in the said parish:" he appealed to the parish of B. to be overseer of next Quarter Sessions of Caermarthenshire, where the appointthe poor for the ment was confirmed with costs, stating it to be "on the hearhamlet of C. in the said paing of the appeal touching the appointment of R. Morris, rish," was confirmed geneas one of the overseers of the poor of the hamlet of Velindre,” rally at the &c. To the order of Sessions, returned by the certiorari, was sessions, with costs; and both annexed "a rate on the inhabitants and all other substantial "householders in the parish of Llangendeirn, towards the re"lief of the poor, May 16th 1791;"-and in that part of the rate which respected Velindre hamlet, the appellant was rated. those orders were affirmed here. [2 East. 171.] 66 Marryatt made three objections to the order of appointment, 1st, That it was an appointment of one overseer only, and could not therefore be supported, either under the 43 Eliz. c. 2. s. 1. which requires 4, 3, or 2, in a parish, or under the 13 & 14 C. 2. c. 12. s. 21. which directs that there shall be two or more overseers appointed in the townships or villages in those parishes which cannot reap the benefit of the 43 of Elizabeth. In R. v. Harman (a) there was an appointment of five overseers for the parish, which the Court thought could not be supported; and they said that the justices in appointing overseers should be confined to the number mentioned in the statute, 4, 3, or 2. In R. v. Besland (b), indeed an appointment of one overseer only was confirmed here; but in R. v. Loxdale (c) Lord Mansfield, (c) I Burr. 446. (a) Bott. 6. pl. II. (b) x Wils. 128. & Bott. 5. pl 10. speaking 66 speaking of R. v. Besland, said, "no opinion was given judicially 66 upon the point of law;" that (a) more than four, or less than two, could not be appointed; and "that justices have no other power to appoint overseers but under the special authority given "to them by act of parliament; therefore this special authority "must be strictly pursued, and cannot be exceeded by them." And in the same case Foster, J. (b) and Wilmot, J. (c), commenting on the 39 Eliz. c. 3. which speaks of four overseers, said, that under that statute the justices could not have appointed a smaller number than four. 2dly, this is not an appointment for a parish under the 43 Eliz. c. 2. nor for a vill under 13 & 14 Car. 2. but for a hamlet only, which is merely a subdivision of a parish; and it is not left to conjecture that this is not a vill or township maintaining its own poor separately from the parish at large, the rate, which is returned by the certiorari, purporting to be made for the whole parish, including Velindre hamlet. In R. v. Severn (d), an appointment of overseers for "the precinct of the Tower," was held bad. It was there argued, that, though the precinct were not a parish, the Court might intend it to be a township or vill within the meaning of the 13 & 14 Car. 2.; but the Court said, "As it is not expressly "called a township or vill in the appointment, the Court ought "(e) to intend that it is a township or vill, in order to make an "appointment good, which is not warranted by that statute;" and they also said that both these statutes had been, and ought to be, construed strictly. But, 3dly, If the Court intend this hamlet to be a vill, the defendant should be a substantial householder in the place for which he is appointed, whereas it only appears by the appointment that he is a householder in the parish of Llangendeirn. In R. v. Sherringbrook (ƒ), an appointment was quashed, because it did not appear by the order that the person appointed was a substantial householder. In R. v. Curle (g), it was held that "the words substantial house"holder, which are the words of the stat. 43 Eliz. must be used "in an appointment of overseers of the poor;" and in R. V. Weobly (h) an appointment was quashed, because it only described the persons appointed as substantial householders, without adding "there," or "in the parish." Besides this, one part of the order of the Sessions cannot be supported, for it gives costs to be paid by the appellant, which is not warranted by the 43 Elizo có 2 1792. The KING against MORRIS. 1792. The KING against MORRIS. Lord KENYON, Ch. J. (stopping Bearcroft and Dauncey, con◄ trà.) This Court has invariably made a distinction between orders of justices and convictions, and said that every thing is to be intended in support of the former. As to the first objection, that this is only an appointment of one overseer, in support of which R. v. Loxdale was cited; I well remember that that case underwent a great deal of discussion at Westminster-hall: to the determination of that case I subscribe my opinion, that there must be four, three, or two overseers appointed under the stat. 43 Eliz. c. 2. But it never has been determined that they must be all appointed by one instrument (a). And here we are not left to conjecture that no other person was appointed overseer of this place; for it appears on the order of Sessions that this was an appeal of "one of the overseers of Velindre." Then it was objected that this was not a township or vill, but only a hamlet: but "vill" and "hamlet," are in common acceptation used as synonymous terms. If indeed the justices at the Sessions had stated specially in their order that this was not a vill, we should have been bound to quash the order of appointment; but as it may be a vill (6), we are now to intend (c) it for the purpose of supporting the order. The same intendment may be made as an answer to the third objection: and if we were to look at the rate, which indeed should not have been returned by the certiorari, the appellant there appears to be rated for property in Velindre; and I am to find that the Sessions were authorized by a modern statute (d) to give costs. Both orders confirmed. (a) In R. v. Besland, as reported in Bott. 6. pl. 10. Denison, J. said, "There is no law "that says there shall be an appointment of two or more overseers uno flatu.” (6) Velindre is the Welch word for vill. (e) Vid. Salk. 501, "If a place be named generally, that place shall be taken to be, and "intended, a vill.” (d) 17 Geo. 2. c. 38. s. 4. The venue was in London and IN DOUGLAS against RAY. N this case the venue was in London; and the plaintiff, hav ing given eight days' notice of trial, obtained a verdict, no plaintiff without defence being made; to set aside that verdict a rule nisi was verdict for defence; the ver dict was set aside obtained, on the ground that ten days' notice of trial should because only have been given, the defendant residing in India. eight days' notice of trial was given, the defendant residing in India. [1 East. 688.] Erskine, Erskine, in shewing cause against this rule, relied on a case of Kutiff v Gascoyne (a), where it was held that the defendant was only entitled to four days' notice to plead instead of eight, because he had been arrested in London, though his place of residence was in Scotland. Bearcroft, in support of the rule, observed that the case cited had no application to the present, for that depended only on a rule of Court; whereas the rule requiring ten days' notice is founded on a positive act of parliament (b), and is applicable to all cases where the defendant resides above 40 miles from London or Westminster. And of this opinion were The Court; who said, that the words of the act of parliament were too strong to be got over; and that this very point had been determined in Brind v. Torris, 2 Bl. Rep. 1205. Rule absolute. (a) Kutiff and Another v. Gascoyne, Hil. 17 Geo. 3. B. R. Cowper obtained a rule for an imparlance, on the following ground: that the declaration had been delivered with an indorsement to plead in four days instead of eight. It appeared that the defendant (whose usual residence was in Scotland) was arrested while casually in London, where he put in bail. The question was, Whether the rule of Court, M. 10 Geo. 2. ordering that where a defendant resides above 20 miles from London he must have eight days' time to plead, applied to this case. Buller shewed cause, and insisted that such rule of Court extended only to persons residing in England; otherwise it might as well be contended that it extended to Italy as to Scotland. Lord Mansfield, Ch. J.-No doubt but that it ought to be four days only; it should be deemed a residence in London where arrested. (b) 14 Geo. 2. c. 17. s. 4. Rule discharged. 1792. DOUGLAS against RAY. GREENWAY against HURD. AT the trial of this cause, for money had and received, Assumpsit for money had and to recover du him after the before Thomson, B. at the last Lancaster assizes, it appeared [1 Taunt. 359.] not lie against that the action was brought to recover back 5291. which the received, does plaintiff had paid in July 1785, to the defendant, who was a col- an excise officer lector of excise, for certain duties on the cotton manufacture ties received by imposed by the 24 Geo. 3. c. 40.; which act, it was admitted, act imposing had been repealed, as far as related to these duties by the them is repeal25 Geo. 3. c. 24. before the duties were incurred; the latter statute repealing the duties "from and after the passing of that act," and consequently relating to the first day of the sessions, the 25th of January 1785. In June 1785 the plaintiff positively refused to pay these duties, which however he afterwards paid tion is brought on the 22d of July following. It was objected by the defendant's by the 23 Geo. counsel, That, as the defendant had paid the money over to his superior ed, if he have paid them over to his superior. The officer in such case is enmonth's notice titled to a before the ac 3. c. 70. s. 30. |