Sir John Campbell, amicus curiæ. Lord Erskine wrote a celebrated book upon the subject, in which he came to the same conclusion. Lord DENMAN, C. J.-We are glad to hear our opinion confirmed by that of so learned a person. We thought it strange that the question should never before have been considered. 1835. The KING บ. Inhabitants of Order of Sessions confirmed. The KING . FORD and others. The first In order to authorize a it is not neces- THIS was an indictment for an assault. count stated that the defendants, in the parish of St. James, Westminster, made a violent assault upon one Scattergood, he then and there being in lawful possession of certain goods and chattels which had been seized and taken possession of by Thomas Denham, collector of assessed taxes for the parish aforesaid, for the sum of 61. 15s. 6d. for arrears of assessed taxes due from the said Ford, with intent the said Scattergood from and out the collector of the possession of the said goods wrongfully and un- the housejustly to force and expel and put out, &c. The second count was for a common assault on Scattergood. not guilty. The indictment, which was found by the direct refusal arrears should manded by have been de in person upon holder in per son, or that Plea; there should have been a of payment to the collector in person. But it is sufficient if a demand have in fact been made by the collector or a person authorized by him, and the householder has refused payment, whether on the ground of inability or for any other cause. Nor is it necessary that the collector should in the demand have specified the exact sum. Where a count in an indictment stated that the defendant made an assault upon a person who was in lawful possession of goods under a levy for a specified sum of money for arrears of assessed taxes, with intent unlawfully to force him out of possession,-Lord Denman, C. J., held that it was necessary to prove that the specific sum was due, although he thought that no sum need have been stated. 1835. The KING v. FORD and others. Middlesex grand jury, at the Clerkenwell Sessions House, was removed into this Court by certiorari, and the prisoners were tried at the Middlesex sittings after last term, before Lord Denman, C.J. It then appeared that arrears of assessed taxes being due from Ford, Denham, the collector for the parish, in company with Pollard, whom he had duly authorized to collect taxes, called at the house of Ford for the purpose of demanding payment. Ford was from home; but Denham and Pollard saw at his house a woman, to whom they stated that they had come to demand payment of the arrears of the taxes, and that if they were not shortly paid, a distress would be put in. The woman said that Ford was unable to pay; and Ford himself shortly afterwards called on Pollard, and stated that he was unable to pay. Pollard, under the authority of Denham, made a levy upon the goods, &c. in Ford's house, and put Scattergood into possession. Whilst he was so in possession, a violent assault (the subject of the present indictment) was made upon him by the defendants, with a view to compel him to abandon the seizure. It was objected to the first count of the indictment that it was not supported by the evidence, inasmuch as it was not shewn that the precise sum of 67. 15s. 6d., for which the distress was stated in the indictment to have been made, was in fact due. Lord Denman, C. J., thought that the sum need not have been stated; but that being stated, it could not be rejected as surplusage, but must be proved as laid. The first count being thus disposed of, it was objected that the evidence did not warrant a conviction upon the second count; for that the assault was justifiable for the purpose of putting Scattergood out of possession, unless he were shewn to have been legally in possession, which he could not be, unless there had been such a refusal on the part of Ford to pay the taxes, 1835. The KING as required by 43 Geo. 3, c. 99, s. 33. It was contended that under this enactment no levy could be made, unless there had been a direct refusal by Ford to the collector, upon a personal demand made by him to Ford, or upon and others. a written paper containing such demand, having been left at Ford's house. For this position, the case of Cullen v. Morris (a) was cited. Lord Denman, C. J., however, over-ruled the objection, and told the jury that it was not necessary that there should be a refusal by the householder himself, and that it need not be to the collector in person, but that it was sufficient if it was made to any person properly authorized by him to collect, if, in common language, there was a refusal to pay. The jury found that there had been a refusal to pay, and returned a verdict of guilty. On a day in this term, the prisoners being brought up for judgment, Humfrey moved for a new trial, on the ground of misdirection. The act (43 Geo. 3, c. 99,) gives to the collector power to levy only where payment of the assessed taxes is refused by any person "upon demand made by the collector or collectors of the division or place." In Cullen v. Morris, which was an action against the High Bailiff of Westminster, for refusing to receive the vote of the plaintiff at an election, on the ground that he had not paid his rates, Abbott, C. J., said, "There has been no personal demand of the rates which are due from him, and no written paper containing a demand of these rates has been left at his house, although an application has been made at the house. It appears to me therefore he had a right to vote." Here, there was no personal demand, nor any written. (a) 2 Starkie, N. P. C. 577. บ. FORD 1835. The KING บ. FORD and others. paper, containing a demand by the collector, left at Ford's house, although an application was made at his house. If so strict a rule is to be observed under circumstances such as those in the case of Cullen v. Morris, à fortiori ought it to be adopted in this case, for here the consequences of the refusal are more highly penal. Not only should the demand have been personal, but also the sum claimed should have been stated. Sir John Campbell elected to shew cause in the first instance. The point made, that there must be an express refusal to the collector in person, upon a demand personally made by him to the householder in person, is utterly without foundation. The language of the act is simply that" if any person shall refuse, upon demand made by the collector," then the collector may levy. It does not say in what manner the demand must be made by the collector, or in what way the party must refuse. If the argument on the other side were correct, then no levy could ever be made if the householder chose to keep out of the way. There can be no doubt that the demand and refusal were both sufficient. They would be sufficient in case of a motion for an attachment for non-performance of an award. The case of Cullen v. Morris, which was a case as to whether a voter was disqualified by non-payment of rates, has no bearing at all upon the question. Humfrey, in support of his rule. The observation, that the act of parliament could not be carried into effect if the householder chose to keep out of the way, is met by the admission that, under the authority of Cullen v. Morris, a written demand, left at the house, would be sufficient. The demand of the servant is not sufficient unless it be shewn that she possessed the character of an agent. Such a demand would not be sufficient in the case referred to of an award. [Littledule, J. The act of parliament certainly does not require that the refusal should be made to the collector, but speaks only of refusal upon demand made by the collector. As far as the refusal goes, the case seems quite complete.] The demand was not sufficient. Cullen v. Morris is a strong authority in favour of the defendants, Cur. adv. vult. Lord DENMAN, C. J., on a subsequent day saidAfter considering the act of parliament and the case cited in the argument, we are of opinion that this application ought to be refused. It is not necessary that a demand should be made on the householder himself, or that the precise sum should be specified. A distress may be put in, if a demand of the taxes has been made, and there has been a refusal to pay on the ground of inability, or for any other reason. Cullen v. Morris relates to a matter totally different from that of the present case; and the principle of it is not, we think, applicable here. Rule discharged. 1835. The KING v. FORD and others. |