THE VESTRY ST. PANCRAS r. BATTER- [ 482 ] [ 483 ] [ *484] Atherton (with whom was D. D. Keane), contrà: That a duty is created by the 105th section of the 18 & 19 Viet. c. 120, cannot be doubted; and it has repeatedly been decided, that, wherever a statute imposes a duty upon a party to pay a sum of money, a debt is created which is recoverable by an action at law. [They cited Shepherd v. Hills (1).] (WILLES, J. The ground of the decision there was, that the distress was not a perfect remedy.) The question here is, whether the language of the 225th section 66 (COCKBURN, Ch. J.: They become ascertained by s. 225.) If expenses would of itself include expenses to be incurred as well as already incurred, the provisions contained in the 158th and 170th sections would have been unnecessary. It cannot be said that the construction here contended for would render the 225th section inoperative; for, there would still remain cases to which it would apply, the case of carelessly or accidentally breaking lamps, &c., s. 207. (WILLES, J., referred to Stevens v. Jeacocke (2). By the St. Ives Bay Pilchard Fishery Act, 4 & 5 Vict. c. lvii., it is enacted that certain stems or stations shall be bounded as there defined, and that, in cases of interference by one boat with another under specified circumstances, the fish taken by the party interfering shall be forfeited to the party interfered with, and the interfering party shall forfeit 501. The plaintiff declared in case, setting forth, that, after the statute passed, he was proceeding to take fish in his proper turn and station, and would have taken them, but the defendant prevented him from so doing, by unlawfully and wrongfully throwing a net; and the declaration described the proceeding so as to bring it within the statutory prohibition. On motion in arrest of judgment, it was held that the declaration showed no cause of action, the plaintiff stating no interference with any common law right, and the statute having only imposed a particular penalty for the act done, and having therefore given no general right of action.) (1) 105 R. R. 386 (11 Ex. 55). (2) 75 R. R .614 (11 Q. B. 731). OF It is not sufficient to deprive a party of his common law right to THE VESTRY have recourse to a court of law, that the statute has provided another remedy. (COCKBURN, Ch. J.: Here you have the new duty created by the statute which provides the remedy.) In The Earl of Shaftesbury v. Russell (1), the 33rd section of the 43 Geo. III. c. 99, enacting, that, "if any question or difference shall arise upon taking any distress (for assessed taxes), the same shall be determined by the Commissioners of Taxes," it was held, that, as the jurisdiction of the superior Courts was not expressly taken away, an action at common law was maintainable for a wrongful distress. (WILLIAMS, J.: The question is, whether the remedy is cumulative where the remedy is given by the statute which creates the debt or duty.) A Railway Act,-5 Vict. sess. 2, c. lxxx., s. 264,-imposed a penalty on the Company for the interruption of any road, and, in the case of a private road, made the penalty "payable to the owner thereof "the same Act (s. 357) enacted that any penalty imposed thereby, the recovery of which was not otherwise provided for, might be recovered by summary proceeding, upon complaint before two or more justices: and it was held,-in Collinson v. The Newcastle and Darlington Railway Company (2),—that this did not bar the party entitled from his remedy by action at law. (CRESSWELL, J.: The words in s. 225 of the Act under consideration are "shall be recovered," not "recoverable.") So, in the 5 & 6 Vict. c. lxxx., s. 357, the words were "may be recovered by summary proceeding," &c. Lush, in reply: There are many cases where "may," in a statute, has been construed "shall;" but "shall" has never been held to give an option. This is of all others a case in which it is least likely that the Legislature would intend to give a cumulative remedy. There may be fifty owners assessed,-are there to be fifty actions to recover the estimated expenses? And, should the estimate be too large, are there to be fifty actions to recover back the excess? Again, the liability is imposed upon every occupier at the time, or who may come in afterwards: it clearly could not have been the intention of the Legislature to let in such a flood of litigation. In Shepherd v. Hills (3) it is difficult to see how any question (1) 25 R. R. 534 (1 B. & C. 666). (3) 105 R. R. 386 (11 Ex. 55). (2) 1 Car. & K. 546. R.R.-VOL. CIX. 49 ST. PANCRAS v. BATTER BURY. [ *485 ] OF v. BATTER- THE VESTRY Could have arisen, seeing that the very same section (s. 72) which ST. PANCRAS gave the power to distrain also gave the deputy master a right to bring an action. A public local Act,-1 Vict. c. xevi.,-for making a railway in Ireland, provided that, if any proprietor of shares should refuse to pay a call, it should be lawful for the Company to sue for it in any of the Queen's courts of record in Dublin, and gave a general form of declaration: and it was held, that, the debt and the remedy being created by the statute, the Company were bound to pursue the remedy pointed out by it, and could not bring an action for a call, and declare, in the general form, in an English Court: The Dundalk Western Railway Company v. Tapster (1). [486] [ *487 ] (WILLES, J.: I think that case has been somewhat doubted.) It is not necessary to rely upon it here. The 216th section throws some light upon the construction of the 225th, if any were wanted. * * * COCKBURN, Ch. J.: I am of opinion, that, under the circumstances here stated, no action will lie, but that the proper remedy for the recovery of the expenses in question, is, by the mode pointed out in the 225th section of the statute. Where an Act of Parliament creates a duty or obligation, and gives a remedy for a breach of it by a peculiar proceeding, a question arises whether the remedy so provided is the only one to be had recourse to, or whether it is cumulative. But here the language of the 225th section of the statute is very peremptory: it enacts, that, in every case where the amount of any damage, costs, or expenses is by this Act directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for, the amount shall, in case of dispute, be ascertained and determined by, and shall be recovered before, two justices. The words are shall be recovered." The Act having created the pecuniary obligation, points out in the most positive and peremptory language the mode in which it shall be enforced. I think it is clear that the Legislature intended that the summary proceeding thus pointed out should be the only one. And one can readily understand why this should be so. It may be that there are a hundred houses the owners or occupiers of which are *called upon to contribute to the expenses of paving a street, and there might be numerous disputes among the individuals interested. No legal question of any nicety or difficulty could well arise to call for the intervention of a Court and jury: the only disputes which could arise, would be as to the amount to be contributed by each. I cannot conceive a tribunal better qualified to deal with such (1) 1 Q. B. 667. OF matters than the one chosen by the Legislature. I think we shall THE VESTRY best give effect to the intention of the Act by holding that the expenses in question are not recoverable by action. CRESSWELL, J.: I also am of opinion that the pecuniary obligation and the mode of enforcing it are indissolubly united by the statute, and cannot be severed. WILLIAMS, J.: I am of the same opinion, and for the same reasons. This belongs to that class of cases where the Act at once imposes the duty and directs the remedy. The case of Shepherd v. Hills (1), at first sight seems to be at variance: but, in that case, the remedy did not cover the whole right. ST. PANCRAS ተ. BATTER BURY. WILLES, J., concurred. Judgment for the defendant. WICKENS v. STEEL. (2 C. B. N. S. 488-494; S. C. 26 L. J. C. P. 241 ; 3 Jur. N. S. 671.) [Obsolete practice as to misjoinder of parties under Common Law Procedure Acts.] SARAH EMMA DUNSTON v. PATERSON. (2 C. B. N. S. 495-508; S. C. 26 L. J. C. P. 267; 3 Jur. N. S. 982.) THE declaration stated that the defendant assaulted the plaintiff, and arrested her, and caused her to be conveyed in custody along. certain highways a distance of forty miles to gaol, and kept her in custody in such gaol for the space of eight weeks then next following; and, the plaintiff then being kept and detained in custody in the said gaol by the defendant, and certain persons, to wit, John Dunston and others to the plaintiff unknown, being desirous of examining the plaintiff in certain suits then pending in the High Court of Chancery, and having issued a writ of habeas corpus ad testificandum, the defendant thereupon caused the plaintiff to be removed in custody from the said gaol, and conveyed in such custody from the said gaol to the examiner's office of the said High Court of Chancery, a distance of forty miles, and there to be detained for the space of two days; and the defendant thereupon caused her to be conveyed from the said examiner's office back to the said gaol, and thereupon again detained her in custody (1) 75 R. R. 614 (11 Ex. 55). 1857. May 22. 1857. June 5. [ 495] DUNSTON 2. PATERSON. | 496] [498] in such gaol for a further period of ten days; and, during the several times aforesaid, the plaintiff was prevented from obtaining her means of, and was removed from her home and livelihood; and, during the times of her imprisonment in the said gaol, she was kept upon weak, improper, and insufficient food; and, by means of all the premises aforesaid, the plaintiff was greatly disordered and weakened in body and mind, and underwent great pain, and was otherwise injured in her credit and circumstances: and the plaintiff claimed 500l. The defendant pleaded, first, Not guilty. Secondly, to so much of the declaration as charged him with assaulting and arresting the plaintiff, and keeping her in custody in the said gaol as above mentioned,-[he justified under a writ of capias ad satisfaciendum by which the sheriff was commanded to take the body of the plaintiff]. Thirdly, to so much of the declaration as was not by the second plea pleaded to,-[he justified under a writ of habeas corpus ad testificandum issued out of the High Court of Chancery by which he was directed to bring the plaintiff before one of the examiners of the said Court to be examined as a witness]. Fourth plea,--to so much of the declaration as was by the second plea pleaded to, that, before either of the said trespasses, a certain writ of our lady the Queen, called a capias ad satisfaciendum, directed to the Sheriff of the county of Kent, to wit, the defendant, was issued out of her Majesty's Court of Exchequer at Westminster, by which writ our lady the Queen commanded the defendant, as and being such sheriff as aforesaid, to take the body of one Emily M. Dunston, if she should be found in his bailiwick, and her safely keep, so that he might have her body before the Barons of her Majesty's Exchequer at Westminster immediately after the execution thereof, to satisfy one Hugh Hill 371. 19s. 4d., which he had lately in the said Court recovered against the said Emily M. Dunston, together with interest as in that writ mentioned; and thereupon, afterwards, and whilst the said writ was in full force, and before the return thereof, and within the said bailiwick of the said sheriff, the plaintiff having notice of all the premises aforesaid, and especially that the defendant, as and being such sheriff, was seeking to arrest the said Emily M. Dunston under and by virtue and according to the exigency of the said writ, asserted, represented, and stated to the defendant, so then being such sheriff as aforesaid, and with the view and intention of procuring him then and there, as such sheriff, to arrest the plaintiff under and by virtue of the said writ, as and for and being, and she then asserting, representing, and stating that she the plaintiff was, the said Emily M. Dunston, and the person against whom |