1856. SMART V. WEST HAM Worcester (a), a Local Board of Health was held liable on a contract made by them, notwithstanding the Public Health Act, 11 & 12 Vict. c. 63, s. 140, provides, that the GUARDIANS OF members of the board shall not be personally responsible, and that the expense incurred by them shall be paid out of the rates. The guardians have the means of repaying themselves by ordering the overseers to make a rate. Harcourt appeared for the defendants, but was not called upon to argue. COLERIDGE, J.-We are all of opinion that this case was rightly decided in the Court below. The question is, whether there is any contract, by virtue of which the guardians are liable to pay the plaintiff. The onus of establishing that is cast upon the plaintiff. It appears that the guardians were directed by the Poor Law Commissioners to appoint a collector of poor rate. The guardians appointed the plaintiff, who was to be paid by a poundage on the sums collected, and his appointment was sanctioned by the Poor Law Commissioners, at the poundage proposed. The plaintiff acted as collector. Then do those circumstances afford any evidence of a contract between the parties? It is argued that the guardians are liable by mere force of the appointment. But it would lead to dangerous consequences if every person who, by virtue of an office which he filled, was directed to appoint another person to an office with a salary, was liable to pay that salary. The doctrine as to implied contracts cannot be carried to that extent. It is said, that the guardians have the means of procuring funds by which they can repay themselves, but that circumstance does not raise any implied contract to pay. Therefore, without going further into the case, it appears to us, upon principle, that there is no right of action. (a) 9 Exch. 457. 1856. SMART v. GUARDIANS OF CRESSWELL, J.-Even if there is a difficulty in the plaintiff's getting this money, that is no reason for holding that a transaction is a contract which is not a contract. If so, I do not know where we should stop. The defendants merely made the appointment in pursuance of the order of the Poor Law Commissioners, and there was no implied contract on their part to pay the salary. Judgment affirmed. Feb. 6. A declaration THIS alleged that the plaintiff held certain premises as to the defend ant, and that the defendant wrongfully distrained upon the said premises certain goods of the plaintiff, as a distress GLYNN V. THOMAS.. HIS was a proceeding in error on the judgment of the Court of Exchequer in the case of Thomas v. Glynn. The first count of the declaration stated that the plaintiff tenant thereof held a certain messuage, tenement, and premises as tenant thereof to the defendant at and under a certain rent; and that the defendant distrained divers goods of the plaintiff when no rent was due.-The second count stated that the defendant, on &c., wrongfully distrained upon the said tenements and premises divers other goods of the plaintiff, to wit, &c. (describing them) of great value as a distress for the alleged arrears of rent, to wit, the sum of 6l. 3s., by the defendant then pretended to be due and in arrear to by the defend him from the plaintiffs for the said tenements and premises. And the defendant wrongfully remained in possession of the said goods under colour of the said distress, until the plaintiff afterwards, to wit, on the day and year aforesaid, was for alleged arrears of rent, to wit, the sum of 67. 38. ant then pretended to be due and in ar rear; and the defendant wrongfully remained in possession of the said goods under colour of the said distress until the plaintiff was compelled to pay, and did pay, to the defendant the pretended arrears of rent and costs of the distress, in order to regain possession of the goods: whereas, in truth, a small part only, to wit, 17. 16s. 9d., of the said pretended arrears was due:-Held, in the Exchequer Chamber, that the count disclosed no cause of action, for, as the distress was lawful, the defendant was entitled to a tender of the amount really due, and upon his refusal to accept that sum, the plaintiff's course was to replevy the goods: Crompton, J., dissentiente. compelled to pay and did pay to the defendant the said pretended arrears of rent, and a further sum, to wit, 58. 6d. for the costs and charges of the said distress, in order to regain possession of the said goods: whereas, in truth, at the time of the making of the said distress and during all the time aforesaid, a small part only, to wit, 17. 16s. 9d. of the said pretended arrears was due or in arrear to the defendant for or in respect of the said tenements and premises: Whereby and by reason of the premises the plaintiff and his family were during all the time aforesaid greatly annoyed and disturbed in the peaceable possession of the said premises. Plea: not guilty.-Upon which issue was joined. The cause was tried before Martin, B., at the Middlesex Sittings after Hilary Term, 1855, when a verdict was found for the defendant on the first count, and for the plaintiff on the second count, with 4l. 68. 4d. damages. Judgment having been entered up accordingly, the plaintiff took proceedings in error, and the case was argued in Easter vacation, 1855 (a), (May 10), by Bovill for the plaintiff in error (the defendant below).— The second count is bad. Tancred v. Leyland (b) decided that no action will lie for taking goods as a distress for rent upon a claim of a greater amount being due than was in fact due; nor for selling the goods for the alleged arrears, unless more goods were sold than were necessary to satisfy the actual arrears and costs. That case was followed by Stevenson v. Newnham (c), where the count alleged that the defendants maliciously distrained for more rent than was really due; and it was nevertheless held that the count was bad, for an act which does not amount to a legal injury cannot be actionable because it is done with a bad (a) Before Coleridge, J., Maule, J., Wightman, J., Erle, J., Williams, J., Crompton, J., and Crowder, J. (b) 16 Q. B. 669, 1856. GLYNN v. THOMAS. 1856. GLYNN v. THOMAS. intent. This count charges, first, the wrongful distraining for an alleged arrear of rent greater than the amount actually due; and secondly, the wrongful remaining in possession until the plaintiff was compelled to pay the pretended arrears and costs. It is admitted on the face of the count that some rent was due; and there is no allegation that an unreasonable quantity of goods were taken so as to constitute an excessive distress. There was therefore nothing unlawful in the distress. Then does the remaining in possession until the arrears of rent were paid give any cause of action. [Martin, B.-At the trial it was contended that this might be treated as an informal count for money had and received, since the money was paid under compulsion.] This was a voluntary payment. In Knibbs v. Hall (a) Lord Kenyon ruled, that where a party threatened with a distress for rent pays money, against the payment of which he might have defended himself, but does not do so, that is not a payment by compulsion. Skeate v. Beale (b) is also an authority that a payment under duress of goods is not a compulsory payment. Gulliver v. Cosens (c) decided that where cattle are distrained damage feasant, the owner cannot, without tendering amends, pay under protest an excessive sum demanded for damage, and recover the amount as money had and received to his use. That decision was founded on the rule of law laid down by Lord Coke in The Six Carpenters' case (d) and on the authority of Lindon v. Hooper (e). The same principle applies to the case of a distress for rent. In order to render the detainer unlawful, the plaintiff should have tendered the amount really due. [Crompton, J.-It was never meant to be decided that if any damage resulted from the distress upon a claim of more than was due, the party could not maintain an action. Tancred v. Leyland (ƒ) only goes to this extent, that the mere taking or selling on an untrue claim is not actionable; but the Court there say, that if the claim was followed by any special damage, there would be a right of action.] The plaintiff was not bound to pay the amount claimed, he might have replevied the goods. It is consistent with this declaration that the defendant took goods of the value of 58., and kept them until the plaintiff paid the amount claimed. Pigott for the defendant in error (the plaintiff below).— The second count discloses a good cause of action. After verdict every intendment will be made in favour of the count. The allegation that the plaintiff was "compelled to pay," may mean that he was compelled in consequence of being unable to obtain sureties in a replevin bond for the amount distrained for, although he could have done so for the amount really due. Therefore, on the authority of Tancred v. Leyland, this count is maintainable, and it may also be supported as a count for money had and received. [Erle, J.-Tancred v. Leyland shews that there is no duty on the part of a landlord to inform the tenant of the amount for which he distrains, and that the latter has no cause of complaint until he has performed his duty by tendering the rent due. Maule, J.-In Brown v. M‘Kinally (a), Lord Kenyon ruled that where a party sued on a claim which he knows to be unfounded, pays it, although at the time of payment he protests against it, and declares his intention to bring an action to recover back the money so paid, yet no action will lie, for he ought to have defended the action brought against him.] It is conceded that where the payment is voluntary the money cannot be recovered back, but that is not so here. Lindon v. Hooper (b) was the case of a distress of cattle damage feasant, and the Court considered that the action for money had and received was not 1856. GLYNN v. THOMAS. |