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facts are established in evidence, be declared by a Court of Equity;" but in the present case the trust between the owners of the fee, and those who held under the agreement of 1768, was an actual direct trust.

The case of Doe v. Rock (8) is confusedly reported; but it would seem that the owners of the legal fee had held it as trustees for Woolrich, who had purchased it from them but failed to pay the price; then Woolrich sold his equitable fee to Butler, at an advanced price. It would seem probable from the report in Carrington & Marshman that Butler actually paid the original price to the owners of the fee, and that they became trustees for him only, and that afterwards by some arrangement, not explained in the report, Woolrich became tenant-at-will to Butler, not to his trustees, except in so far as by implication every trustee may be said to be trustee for those who hold under his immediate cestui que trusts.

This understood, the ruling of Patteson, J., after consulting Cresswell, J., was in truth no more in effect than that where the cestui que trust would be barred if his title was legal, his trustee is also barred; a doctrine which in no way comes in question here, and which has since been acted upon in Melling v. Leak (10). We come therefore to the conclusion that the plaintiff's are entitled to judgment.

Judgment for the plaintiffs.

Attorneys-Fladgate, Clark, Smith & Forster, for plaintiffs; H. B. Clarke & Son, for defendants.

1871.

June 22.

GRIFFITHS v. THE LONGDON
AND EVERSFIELD DRAINAGE
BOARD.

Land Drainage Act, 1861 (24 & 25 Vict. c. 133)-Drainage Board-Expenses of

Plans and Estimates-Owners and Occupiers of Lands-General Rate-Special Rate.

By Section 29 of 24 & 25 Vict. c. 133 (the Land Drainage Act, 1861), " Previously to commencing any improvements in existing

(10) 16 Com. B. Rep. 652; s. c. 24 Law J. Rep. (N.S.) C.P. 187.

NEW SERIES, 41.-Q.B.

works, or any new works where such improvements or new works involve an expenditure of more than 1,000l., the commissioners shall cause plans of the proposed work, and an estimate of the expense thereof, and of the area within which a rate will be required to be levied to meet such expense, to be made, together with a list of the names and ad dresses of the persons reputed to be proprie tors of the land within such last-mentioned area, with the addition of the number of acres of which each person is reputed to be the proprietor, and shall publish their intention to execute such works two months before commencing the same."

By Section 31, "If within such period of two months the proprietors of one-half of the area of land within which a rate is, according to the notice, proposed to be levied, declare in writing to the Commissioners, by notice left at their office, that they are unwilling that such work should be executed, the Commissioners shall take no further steps therein; but if no such declaration of dissent is made, the Commissioners may, at the expiration of such period of two months, commence the proposed work, and repay out of the rates to be levied by them within the area, all expenses incurred, not exceeding the estimate published in the notice."

By Section 38, "The following regulations shall be observed with respect to rates leviable by Commissioners of Sewers; that is to say

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First. As to the purposes of the rate;

66 Rates may be levied by Commissioners of Sewers for defraying all costs, charges, and expenses incurred or to be incurred by them under the authority of any Act of Parlia ment, law, or custom.

"Second. As to the incidence of the rates: "A rate levied by the Commissioners for the purposes of defraying the expense of any improvements in existing works or any new works, where such improvements or new works involve an expenditure of more than 1,000l., shall be deemed to be a special rate,

and shall be deemed to be a tax on the owners of property; but, except such special rate, rates leviable by the Commissioners shall be payable by the same persons, in respect of the same property, and in the same manner as they are now by law payable."

The defendants, under the Act above referred to, were appointed a drainage board,

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with all the powers of Commissioners of Sewers; they incurred an expenditure of more than 1,000l. in and about the obtaining plans and surveys of the lands within their district, and estimates for executing the works which they proposed to carry out. The proprietors of more than one-half the necessary area of the land within the district duly declared their unwillingness that the works should be completed. The defendants made a rate on the occupiers, including the plaintiff, of lands in the district, according to the quantities and qualities of their estates, for the costs, charges, and expenses incurred in causing plans and estimates of the works to be prepared. The plaintiff was assessed as the occupier of houses, gardens, and orchards, as well as of land :

Held, that the rate was good as a general rate upon the occupiers, and that the expenses were not such as ought to be defrayed out of a special rate upon the owners.

SPECIAL CASE stated for the opinion of this Court in an action of replevin for taking the plaintiff's horse. The defendants denied the taking, and justified it as a distress: first, for a land drainage rate, and second, for a sewers' tax. The plaintiff joined issue thereon. The cause, which had been duly removed from the County Court of Gloucestershire into this Court, was entered for trial at the Spring Assizes, 1870, for the county of Gloucester, when, by consent, the record was withdrawn upon the terms that the questions between the parties should be raised on a Special Case.

1. The plaintiff is a farmer, living at and occupying a house and land (of part of which land, namely 1r. 30p., as appears in the rate hereinafter set forth, he is the owner) in Eldersfield, in the county of Worcester. The defendants are a drainage board, incorporated under the provisions of the Land Drainage Act, 1861 (24 & 25 Vict. c. 133), for a separate drainage district, comprising lands in several parishes, including the parishes of Longdon and Eldersfield in the said counties of Gloucester and Worcester.

2. Previous to 1863, costs, charges, and expenses were incurred by the board, in and about the setting out and surveying and mapping the lands to be included in

their drainage district (such survey, plans, &c., were made by Mr. Swinburne), and costs, charges, and expenses were incurred by the inclosure commissioners in relation to the issue of the provisional order constituting the drainage board, dated the 28th of January, 1863, and obtaining the said Local Act confirming same, and there were also other necessary costs, charges, and expenses incurred by the board. The total of such costs, charges, and expenses so incurred, did not amount to 450l. In 1863 (after incurring such expenses as aforesaid), the defendants employed Mr. J. Bailey Denton, C.E., to survey the lands within their district, and to prepare working maps, plans, specifications, and report for the purpose of making works for the improvement of the existing drainage works of all the lands within their district, and for providing a general outfall for all such drainage, according to the provisions of the said Acts. Mr. Denton used Mr. Swinburne's survey, and completed his own plans, specifications, and report in March, 1864, for which the defendants paid him 1,1257., and as the plans, &c., of the improvements contemplated had then caused an expenditure of more than 1,000l., and the completion of the improvements contemplated in accordance with such plans, &c., would cause an expenditure of about 10,000l., the defendants endeavoured to obtain the necessary assent required by the Land Drainage Act, 1861, to the costs then incurred, and to such improvements being completed. But within the necessary time the proprietors of more than one-half of the necessary area of the land within the said district, and within which a rate was proposed to be made, declared in writing, in due form, to the said defendants, that they were unwilling that such works should be completed in the manner proposed by Mr. Denton, and everything happened which was necessary to happen to require that the defendants should take no further steps therein. The defendants necessarily incurred costs, charges, and expenses for and incident to the matters aforesaid, amounting to 2,2331. 4s. 6d. in the whole, including the sum paid to Mr. Denton. In the year 1867,

the said survey and plans prepared by Mr. Swinburne, and the plans, &c., prepared by Mr. Denton, were submitted by the defendants, &c., to Mr. Curley, C.E., for the purpose of preparing a scheme of drainage for the said district. Mr. Curley used Mr. Swinburne's survey, and saw Mr. Denton's plans, but made his own plans, and prepared a different and much less expensive system of drainage works, which was duly assented to by the requisite number of landowners in the district, and such drainage works have since been executed.

3. In order to provide money to meet the said costs, charges, and expenses, so amounting to 2,2331. 4s. 6d. as aforesaid,

the defendants caused a valuation of the houses, buildings, and lands in the said district to be made, and on such valuation made a rate upon all the occupiers of houses, buildings, and lands in the said. district, according to their annual value, at 9s. in the pound.

4. The said rate, which was made on the 28th of February, 1866, has the following heading :

Number

:

"Longdon & Eldersfield Drainage District, to wit.

"A rate and assessment made on all the occupiers of lands in the Longdon and Eldersfield Drainage District, in the county of Gloucester, according to the quantities and qualities of the estates, for the costs, charges, and expenses incurred by the Longdon and Eldersfield Drainage Board, under the authority of the Land Drainage Act, 1861, and the several other Acts of Parliament incorporated therewith, incurred in causing plans and estimates of works proposed to be done under and by virtue of the said Act, and otherwise complying with the said Act, with respect to the said works. "Dated this 28th day of February, 1866."

5. The plaintiff, who was only an occupier (and not the owner) of a house and a certain quantity of land, was assessed thereon, as occupier, to the said rate, at the sum of 81. 6s. 11d., being at the rate of 9s. in the pound on the said valuation of the said house and land, according to their annual value, in the following form:

Description

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6. The plaintiff objected to pay the said rate, upon the grounds (among others) that it should have been an acreage rate made on land alone, and on the owners, not the occupiers of land.

7. The plaintiff attended a meeting of the defendants on the 10th of April, 1866, and then objected to the validity of the rate, and refused to pay the same on the above grounds (among others), but the defendants decided against such objection.

8. The plaintiff, still refusing to pay the

Griffiths, James.

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rate, was summoned by the defendants, who afterwards, on the 15th of October, 1868, distrained the said horse for the said rate of 8l. 12s. 9d.

9. The plaintiff thereupon replevied the horse.

The questions for the opinion of the Court are, firstly, whether the rate should have been an acreage rate; secondly, whether it should have been made upon land only; thirdly, whether it should have been made upon the owners and not upon the occupiers of land. If the Court

should be of opinion in the affirmative on any one of these questions, judgment is to be entered for the plaintiff for 51. damages, with costs to be taxed on the higher scale. If the Court should be of opinion in the negative on all these questions, judgment is to be entered for the defendants, with costs to be taxed on the higher scale.

Lord, for the plaintiff.-It will be convenient to discuss the third question first. It is submitted that the rate should have been made upon the owners of the land. Section 38 of 24 & 25 Vict. c. 133 provides, "first, that rates may be levied by commissioners of sewers for defraying all costs, charges, and expenses incurred by them under the authority of any Act of Parliament, law, or custom; second, as to the incidence of the rates, first, a rate levied by the commissioners for the purposes of defraying the expense of any improvements in existing works or any new works, where such improvements or new works involve an expenditure of more than 1,000l., shall be deemed to be a special rate, and shall be deemed to be a tax on the owners of property, but, except such special rate, rates levied by the commissioners shall be payable by the same persons, in respect of the same property, and in the same manner as they are now by law payable." The rate now in question comes within that provision, and is bad as having been made upon the occupiers of land instead of upon the owners. is most reasonable that the owners should pay, because the intended works would be for their benefit. The imposition of such a rate as 9s. in the pound upon the occupiers is most unjust. Next. It should have been an acreage rate. By 23 Hen. 8. c. 5. s. 3, the commissioners of sewers are authorised to tax, &c., the persons liable "after the quantity of their lands, tenements, and rents by the number of acres and perches, after the rate of every person's portion," &c.

It

[BLACKBURN, J.-The rate now in question is made upon the occupiers of lands, &c., according to the quantities and qualities of the estates; is there any authority for saying that they ought to be taxed at so much per acre or perch without reference to value ?]

In Com. Dig. tit. Sewers, it is stated that "the commissioners are authorised to enquire, &c., and all those, namely, who have or may have hurt or loss, &c., to tax, assess, charge, &c., after the quantity of their lands, tenements, rents by the number of acres, &c., after the rate of every man's portion, profit, &c., by such ways and means, &c., as shall seem most convenient for redress of the premises." See also Callis on Sewers, p. 153. The rate is to be imposed in respect of so much land as receives benefit from the drainage. The Queen v. The Metropolitan Board of Works (1).

[BLACKBURN, J.-In that case I observe that Crompton, J., said, "The property is to be assessed on its net annual value as ascertained by the rate, for the time being, for the relief of the poor." But all that can be said upon this part of the subject may be found in The King v. The Com missioners of Sewers for the Tower Hamlets (2).]

He also referred to the Case of the Level of Hull (3). Next. The rate ought to have been made in respect of land only.

[BLACKBURN, J.-How does it cease to be land by having houses upon it ?]

Dowdeswell (Lawrence with him) for the defendants. These expenses are incident to obtaining the order of the Inclosure Commissioners. It appears from the case that the Board appointed Mr. Bailey Denton who prepared plans and specifications, and the expenditure in respect of the contemplated works would have been so large that the proprietors of the lands within the district of the Board were unwilling that the works should be completed. Then Mr. Curley was employed, and it became necessary for the defendants to make a rate, and the one now in question was made, but not for the purpose "of defraying the expense of any improvements in existing works or any new works," so as to be necessarily a special rate under section 38. The cost of making estimates, plans, &c., cannot be said to be the cost of works or improvements in works, and

(1) 3 B. & S. 419; s. c. 32 Law J. Rep. (N.s.) M.C. 115.

(2) 9 B. & C. 517. (3) 2 Str. 1127.

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the expense must fall upon the occupiers. who are the only constituency forming the payers of sewer rates. By section 29, "previously to commencing any improvements in existing works, or any new works where such improvements or new works involve an expenditure of more than 1,000l.," the Commissioners are to cause plans of the proposed work and an estimate of the expense to be prepared. is said that the rate ought to be imposed upon the owners, but the owners had no voice in the matter. Prima facie all rates, except the special rate made under section 38, must fall upon the occupier. When the owners of the lands find that the works will involve an expenditure of more than 1,000l., they may, by section 31, declare that they are unwilling that the works shall be executed, and in such case the Commissioners are prohibited by the same section from taking any further steps therein. In such case the owners are not chargeable, and the expenses must be defrayed out of an ordinary rate made as a sewers rate. Although the works have been executed under Mr. Curley's scheme, that cannot, in any way, alter the question about the present rate. The works in respect of which the expenditure in question was incurred have never been executed at all. Coupling the 29th and 31st sections together it appears that such expenditure must be defrayed out of a general rate. The rate is good in law as a general rate.

Lord replied.

BLACKBURN, J.-I think that our judgment must be for the defendants. The question is whether the rate is or is not void, for if void, the plaintiff is entitled to recover, while, on the other hand, if it be good, the defendants are entitled to our judgment though the rate might perhaps have been reduced on appeal. We must see what the rate is for. Upon its face, it purports to be " a rate or assessment made on all the occupiers of land in the Longdon and Eldersfield drainage district in the county of Gloucester, according to the quantities and qualities of the estates, for the costs, charges, and expenses incurred" by the Board. One objection which has been made to the validity of

the rate is, that it ought to have been an "acreage" rate, and incidentally to that objection, that it ought to have been upon land only and not upon houses or land increased in value by improvements made upon it. I think that these objections are wholly untenable. From the earliest times it has been held that the sewers rate under 23 Hen. 8. c. 5. s. 3, must be an equal rate upon those who are benefited by it. See The King v. The Commissioners of Sewers for the Tower Hamlets (2). And it would be unjust if it was imposed according to the superficial extent of the land instead of according to the value of such land. In the Act under which the defendants are constituted a Drainage Board, the 69th section provides for the scale according to which the electors are to vote, that is to say, they are to have a certain number of votes in proportion to the rateable value of the property in respect of which he is entitled to vote. It follows that the value of the land and not its acreage is to be looked at.

The next is a more substantial point. The rate has been made for the purpose of raising money to pay for the plans, &c., made for works which the Board had proposed to execute. By section 67, the Board may exercise the same powers which are possessed by Commissioners of Sewers, and section 38 provides that rates may be levied for defraying all costs, charges, and expenses incurred or to be incurred by the Commissioners under the authority of any Act of Parliament, law, or custom, and then follows the regulation as to the incidence of the rates. [His Lordship read the 1st sub-section, and then continued]: It is plainly, therefore, enacted that, if it comes within that provision, the rate is to be deemed a special rate, and a tax upon the owners of property. The present rate purports to be made for the costs, charges, and expenses incurred in causing plans and estimates of works proposed to be done, and the real question is whether those expenses should be defrayed out of the money raised by a special rate, in which case it should be made upon the owners, or whether they should be defrayed out of the money raised for the general purposes of the Act by a general rate in which the

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