ASHFORD COUNTY COURT
This court was
held
on Monday
before
C. Harwood
Esq.
the
Judge.
MARCHANT
vs. ROLFE and
HILLS.
This was a jury case.
Mr. John
Bennett,
solicitor, of
London, was
engaged
for the
plaintiff,
and
Mr.
Creert
for the
defendants.
Mr Bennett said in this case his client Mr. Thomas
Marchant,
a respectable
farmer residing at
Brabourne, was the
plaintiff
and Mr.
John
Rolfe,
parish constable
of
Brabourne, with
his assistant
Thomas
Hills,
were
defendants.
The
action was brought
to recover £10
damages,
sustained
by an
excessive
distress
levied
for a church
rate.
His
client
was one of
those
gentlemen
who were
opposed
to the
principle
of
church rates,
and
would not
permit
any other
course
to be
followed
than
the law
allowed if
recourse was had
to it to obtain
payment of
them.
In this
respect he
followed in the
wake of the
respectable body
called
Quakers,
who
always
permitted
their
goods to be
distrained
rather
than pay
the
rates.
Mr.
Marchant's goods
had been seized
twice.
Last year a new dung
cart was taken, of
five or six times
more value than
the amount of the
rate,
and it was
sold
for a mere
song.
The dung
cart was
worth £10,
and the
rate came
to a
little over
£1.
and Mr.
Marchant,
he believed
received
nothing
back. But
he took
no notice
of that;
and
emboldened
by
his leniency,
they
took this
year the
most valueable
thing to him
they
could find on
his
farm, which
was
his best cart
horse-
worth,
perhaps
£25- for a
rate of
£1.4s.3d.
There
could be
no doubt
they knowingly
violated the law
in doing so. If
his Honour
would
probably
tell
them, this
horse
had been the
only
thing on the
premises,
they
would have
been
quite
justified in
taking
it; but he
should
prove that
there
were
hundreds of
things
there, in
value from 5
shillings
upwards,
and of
which they
might
with equal
facility
have
seized
and
sold.
They
had therefore no
excuse for taking
this horse, the
loss of which to
Mr.
Marchant at
that
season of the
year
would
necessarily
occasion him
a
great amount of
inconvenience.
They had brought a
horse ready
harnessed
with
them, so that
nothing would have
been easier than
for
them to have
harnessed their
horse to an old
dung cart worth
about £1,
and put
a sack or
two of
wheat or a
hog in
to it and
take
them
away.
General
Sandilands, Mr.
Marchant's
landlord, happened
to be there when
they
made the
seizure;
and he
told them
that he
was a
magistrate
and knew
something
of these
things
and in his
opinion
they were
doing
wrong.
The
excuse the
constable
made was
that he
was told
to do it
by Mr.
Farley
[church
warden].
But
that excuse
could
not avail
him with
the
jury.
Mr.
Marchant
immediately
consulted him (Mr.
Bennett) and he as
Mr. Marchant's
legal
adviser
wrote to
the
church wardens
and
then to Mr.
Farley
complaining
of the
course
pursued,
offering,
if they
returned
the horse
and waived
the
rate for which
it
had been
distrained,
to
take no legal
proceedings.
But
they stood
upon
their rights
and
sold the
horse.
General
Sandilands, in
order to prevent
Mr. Marchant from
suffering so great
a
loss as he was
likely to sustain,
commissioned his
brother to attend
the
sale and buy
the
horse; and it
was
fortunate he
did
so, or it
would
have been
sold at
the same
sacrifice
the cart
was the
year
before.
The
party who
had then
purchased the cart
was again in
attendance, no
doubt for the
purpose
of getting
a
similar bargain;
and
he put the
horse
up at £5,
for
which most
likely
he would
have got
it had
not Mr.
Marchant's
broker
been there
and
then the
expenses
having
been run up
to that
sum, Mr.
Marchant
would
have lost
his
horse for this
church
rate of
£1.4s.
The
defendants had
no
business to do
this; and the law
threw
this on the
constables- that
although they had
the legal right to
go
in and
distrain,
yet
having abused
that
right they
were
trespassers
from
the
beginning. He
should show that
besides the loss
of the horse.
Mr.
Marchant
sustained
additional loss by
being deprived of
its
services at
that
time of the
year.
He had
limited his claim
to £10,
wishing to
show
moderation in
all
things.
The
judge asked
why it
was called
an
excessive
distress.
Mr
Bennett
replied
that
perhaps he
should have called
it an excessive
levy; it
was the
same thing
in
legal
effect.
His
honour said
no, it
was different.
Mr
Bennett said the
action was taken
in the same way as
in the case of
excessive
distress
for rent,
it was
done in the
case
of poor
rates. He
mentioned
as a
case in point
Sturge vs. Clark,
4 Barnwell
Adolphus 113
besides
others.
The
evidence was
then
proceede
with.
Thomas
Marchant,
the plaintiff,
deposed: I have
been served with
an
order for
payment
of
church-rate for
the
parish of
Brabourne,
amounting
to
£1.14s.3d. I
was
distrained on
for
that order on
September
24th.
The officers
came
to my
premises
with the
warrant on
the
Wednesday
before
that, but
did not
then make
the
distress. There
were
then on the
farm
30 hogs, any
of
which they
might
have taken.
Two
of them were
fat
hogs, one of
which
I sold a
month
afterwards
for £9,
and the
other
which I
killed a
few days
afterwards was
worth £7. The
remainder
of the
hogs were
worth
about 24
shillings
or 25
shillings
each.
There were
several
bean shims
worth
about
15 or
20
shillings
each,
also an old
dung
cart worth
about
£1. They
came with a
horse
harnessed.
They
could see all
these
things; they
were
not locked
up.
There were
also 7½
quarters of
cleaned wheat in
sacks, worth
about
57 or 58
shillings
a
quarter. A
servant
of mine
asked them why
they
did not take
a
sack or two of
wheat.
They
replied
because
they
could not
carry it
to
Brabourne
street,
and they
would not
have it if
I was
to give it
to
them.
By
the judge: I
was
not on the
premises
when they
made the
levy: I
was away
at
market.
I do not
know why
they did
not make
the levy
the first
time
they
came.
I
asked Hills what
they
came for, and
he
refused at first
to tell me, but
they afterwards
showed
me the
warrant.
They gave
me no
reason why
they
left without
executing
it.
They went
to
Brabourne
street
and came
back the same
day.
I don't know
what
they came
back
for. They
took the
horse from
the
custody of my
servants.
It was
sold at
Brabourne
street.
Mr
Bennett:
We have the bill
announcing the
sale. They call it
an aged mare- by
way of enhancing
the value I
suppose.
Plaintiff:
I consider the
mare the most
valueable horse I
had on the farm. I
have
had it for
seven
years, and I
never
knew it have
any
illness. If I
was
to
buy such a
horse I
should
have to
give at
least £20
for it. The
constables
also
took some
harness
which was
on her,
worth
about 9
shillings.
This
was on
September
24th and
at that
time the
horse was
of
peculiar value
to
me, because the
land
on my farm is
stiff
and I am
obliged
to have
all the
strength I
can to
get the
corn in.
Last year
the wet
weather
prevented
me
getting all the
wheat in. I lost
the
services of
the
horse for a
week.
I had to let
other
horses stand
still
in
consequence of
not
having this
one, which was
great loss to
me,
A letter was
written
to the
church
wardens
with my
sanction,
offering
if they
returned
the horse
and
waived the
church-rate
to
take
no further
nortice
of the
matter.
By
Mr
Creery: I
have
refused to pay
church-rates
before on the
grounds stated by
my
solicitor. I
paid
them for
several
years,
until they
were
made so
illegal
that I
belived no
law
could make me
pay
them. I had
some legal
proceedings
before; they were
not with the
church wardens but
with the
magistrates
of
Ashford. I do
not
know that
Rolfe is
otherwise
than
friendly
disposed
towards
me. I have
every
reason to
believe
he is, We
were
thrashing in
the
barn when the
constables
came
first. There
were
three
wagons
loaded with
corn
in the yard.
One
of them was
almost
three parts
full.
Some of my
men
took the rods
off
that wagon by
my
direction,
That
would have
been
done even if
Hills
and Rolfe
had not
been
there. I
showed
the old
dung cart
to Rolfe
and
asked him if
that
would not do.
I
will swear the
lodge
was not
locked up,
for it
has
no doors. ( a
laugh).
There was
another
lodge,
with two
dung
carts
in it. We
divided
a plough
which was
outside
the yard
and put
part of
it
away. We did
not
do this till
the
constable had left
the premises.
I
gave £20 for the
mare
at
Folkestone, I
was
present at the
auction
sale. My
father
bought her.
Mr
James Weekes of
Elham made the
frst bid
of £5. Mr
Foreman,
of
Brabourne
street
then bid
£18. He
had no
understanding
with
me that he
should
bid. I did
not bid
myself.
The
mare
went to Hythe
and
came back the
same
day. She now
belongs to my
landlord
General
Sandilands.
He
simply sent her
to
me because I
should
not be
deprived of
her
services at
that
time.
Robert
Marchant,
brother of the
plaintiff, deposed
that he assisted
on
his farm, and
was
present when
the
constables
seized
the mare.
There
were then on
the
farm, thirty
hogs,
seven and a
half
quarters of
cleaned
wheat in
sacks,
dung carts,
a
heavy land
roller,
horse hoe,
bean
shims,
Yorkshire
harrows
and a
great
quantity of
other
agricultural
implements,
besides seven
young bullocks and
some sheep,
all
within sight
of
the constables
and
accesible to
them.
They could
have
easily taken
the
dung cart with
a
sack or two of
wheat
in it or
the
land roller.
Witness
considered
the
mare they
seized
was worth
£25.
It was not
the
most showy
horse
on the farm;
but
it was the most
valueable
and
would do the
most
work. Witness
remonstrated with
the
constable and
told
him that as
an
agricultural
man
he ought to
know
better
than to
take the
horse. He
said he
was told
to do so.
General
Sandilands
was
there at the
time
and asked the
constable by whom
he
was told to
take
it. He
replied
that it
was Mr.
Farley of
Ashford.
General
Sandilands
remonstrated
with
the
constable.
Witness
bought the
horse
for £20 for
General
Sandilands, who
directed him to
buy it even
if it
cost £60.
Mr
Bennett:
General Sandilands
was determined it
should not be
sold
for only £5,
which
would have
left
nothing to come to
Mr.
Marchant.
The
Judge:
How much was the
warrant made out
for?
Mr
Bennett:
For £1.14s.3d.
rate and 10
shillings expenses
of the
warrant.
The
Judge:
Then how did they
afterwards get
their bill upto
£5.11s?
Mr
Bennett read the
bill of costs,
which
included
keep for
the horse
for five
days, from the
time it was
seized
until it
was sold.
His
client was
paid
the balance,
amounting
to £14.
9
shillings.
Mr
Edwin
Sandilands
said he was
present at the
conversation
which
took place
at Mr
Marchant's
farm
between his
father
and the
defendants.
His
father asked
the
constable why
he
took a horse
worth
£20 for a
rate of
£1.14s.3d.
and he
told him
that he
thought,
as a
magistrate
they
were doing an
illegal act.
Witness did not
take any
further
notice of
the
reply made by
the
constable. He
heard
his father
say
there were
plenty
of things
which
the
constable
might take
instead.
The
Judge:
They might have
taken something
which would not
have
wanted food.
Mr Sandilands,
by Mr Creery: I
believe the horse
belongs to my
father now. I
should
not have
minded
giving £18
for it
myself. I
did not
examine
its mouth,
or look
it over
particularly.
It
was not a young
horse; but I
should
not call it
an
aged one.
By
the Judge: My
father looked into
its mouth and said
to the constable
"I
know the value
of
horses; this
horse
is worth
from £20
to £25."
A
labourer
named
Oliver,
in the employ of
the plaintiff,
said he was
present
on both
occasions
when the
defendants
came to
make the
distraint,
and
corroborated
what
had been said
by
the previous
witnesses.
Hills
told him
when he
came the
second
time, that
"they
might
just as well
have
taken
something at
first
instead of
having all
this
bore about
it." (a
laugh)
In
answer to
his
Honour, the
witness said the
horse the
defendants took
was the best
his
master had. He
believed
it was
out at work
when
they came
first.
Mr
Bennett:
That is probably
the reason why
they did not take
anything.
They had
a
peculiar
affection
for this
mare,
your Honour,
and
could not have
anything
else.
Several
other
witnesses
were in attendance
on behalf of the
plaintiff, but Mr
Bennett
said he
did not
think it
necessary
to
trouble the
Court with
any
more.
Mr
Creery
then
said it
became his
duty to
offer a
few
observations
on
behalf of the
defendants,
and to
lay before
the
jury a few
facts
on which he
would
rely
to obtain
their
verdict. The
plaintiff
was one
of those
gentlemen
who it
seemed were
bound
by their
conscience
to do
everything
in
their
power to
resist
rates for
the
support of the
fabric of the
church. The
defendants
were
the
constables of
the
parish acting
in
the discharge
of
their duty; but
substantially
the
defendants
were
the church
warden
of
the parish. For
some
time past a
great
difference
of
opinion had
existed
between
the
plaintiff and
the
churchwardens
and
before this
occasion
law
proceedings
had
taken place
between them
although Mr.
Bennett
had made
this a
church-rate
matter,
he hoped
the jury
would
not
do so, but
that
they would
look
upon the question
in its real
light
namely:
whether
the
defendants had
levied upon more
than the law
justified
them in
levying
upon; He
should
show them
that the
18th
September
the
parish
constable
and his
assistant
went to
Mr Marchant's
farm
to distrain
for
£1.14s.3d and
the
expenses which
would
be
incurred
in making
the
distraint. Mr
Marchant
was
there, and
asked the
constable
what he
came for.
The
first thing he
did
was to go and
take
off the
shafts of
a waggon
three
parts filled
with
corn and he
believed
they were
carried
into the
plaintiff's
house.
[His
Honour:
You did
not
examine him as
to
where they were
taken.]
Mr
Marchant had told
the jury there
were
two waggon
loads
of corn
besides
standing in the
yard; but the
one
horse the
constables
had was
of course
insufficient to
move either
of
them. The
valueable
dung
cart was not
of
sufficient
value
to cover
the
levy.
[His
Honour:
not
with a sack or
two
of wheat in
it?]
The
constables did not
see the cleaned
wheat. Mr Marchant
had told the
jury
that he only
said
to the
constables
"Here take this
old dung
cart;"
but the
fact was
he made
at the
same time a
very
improper and
offensive
observation. He
said "Here, take
this old dung
cart, and see
if
you can't
squeeze
some
sacrement
wine out
of it."
He separated a
plough
to prevent
its
being taken,
and
refused to
unlock
the lodges
for
the constables
to
see what was in
them;
and finding
nothing
suitable
for them
to seize,
Rolfe
went and
consulted the
churchwardens,
leaving the other
with the horse,
and then came back
and fetched the
horse and his
assistant away.
They took a week
to
consider, and
then
went again.
He
should show the
jury that they
found
things just
the
same as on the
first occasion. Mr
Marchant's places
were
locked up,
and
they could not
find
anything
suitable
to levy
upon
except this
mare,
which was
just
being taken
to a
stable. Mr
Marchant's
brother
seized it
by the
bridle, and
one of
the men
whipped
it
behind when the
constable
seized
it, putting
him in
considerable
danger.
The jury
had heard
there
were 30 hogs
on
the premises;
but
they
were all
lose, and
he was
sure the
jury
would agree
it would have
taken
more active
men
than the
constables
to have
caught any
of
them.
He should
show
that there
were no
sheep or
bullocks
there. As
the
constables
could
not remove
heavy
agricultural
implements they
were
justified in
taking such things
as they could and
he should prove
that
only this
horse
was
available.
They
had then the
very
important
question
as to the
value of
this
horse. There
was
always a very
great
difference
of
opinion as to
the
value of
horses,
he did not
think the
sum it
fetched at
the
sale was much
indication
of its
value;
because
the
plaintiff's
brother
was
commissioned
to
bid up to £60
for it; and
the
only bona fide
bidding
that he
could hear
was
that of £5. He
should
call
several
respectable
neighbouring
farmers,who would
tell
the jury that
its
real value was
about £10 in which
case the excess
over
the amount of
the
levy was very
little.
The horse
was 14
years
old,
and therefore
could
not, he
thought,
be worth
much more
than
that.
If, however
the
jury should be
of
the opinion
that
the plaintiff
was
entitled to
some
damages they
would
have to say
the
amount; and he
thought
they must
consider
that the
loss the
plaintiff
had
sustained
by
being without
the
services of
the
horse for five
days was very
small.
But he did
hope
they would
think
the
constables
were
justified
in what
they had
done and
give a
verdict in
their
favour.
Thomas
Hills,
farmer
and
John
Rolfe,
constable,
Brabourne were
then
examined by
Mr
Creery in
support
of his
statement.
Mr
Andrews,
churchwarden
of
Brabourne, was
then examined. He
stated that the
horse
was not sold
for
five days
after
the seizure
because there were
several sales of
agriultural stock
taking place about
that time, which
it
was desirable
this
should not
clash
with. He
cautioned
the
constables
to make
the levy
with as
little
inconvenience to
Mr.
Marchant as
possible, and gave
them no
instructions to
take any
particular
horse.
He did not
think
the horse
was
worth more
than
£12.
Mr
Francis
Pellatt
and
Mr
George
Carter
Rolfe,
farmers of
Brabourne, also
estimated
the
value of the
mare
at from £11
to
£12; but they
both
admitted to
Mr.
Bennett that
they
should not
sell
their own
horses
just
at the exact
price
their
neighbours
like to
put upon
them.
Mr
J
Chittenden,
the
auctioneer,
proved
that it was
valued
at 10
guineas.
Mr.
Bennett
replied,
and the
Judge
summed up.
The Jury
found a verdict in
his favour, with
£7. 10 shillings
damages and
costs
awarded to
Mr.
Marchant.
