then the owners of the said houses shall, on demand, pay to the said vestry or board such further sum of money as, together with the sum already paid, amounts to such actual expenses." The 217th section enacts that it shall be lawful for any vestry or district board to require the payment of any costs or expenses which the owners of any premises may be liable to pay under this act, from any person who then or at any time thereafter occupies such premises; and the owner shall allow every such occupier to deduct all sums of money which he so pays, or which are levied by distress, out of the rent from time to time becoming due in respect of the said premises, as if the same had been actually paid to such owner as part of such rent." And s. 225 provides the mode of enforcing this obligation. It enacts, that, "in every case where the amount of any damage, costs, or expenses is by this act directed to be ascertained or recovered in a summary *481] manner, or 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, such amount shall, in case of dispute, be ascertained and determined by, and shall be recovered before two justices." The question is, whether, in addition to that remedy, the occupier is also liable to an action. The inconvenience which would result from such a construction shows that this never could have been intended: if an action will lie, it might be brought at any time within six years, and long after the party had ceased to occupy; whereas, the proceeding before the justices is limited to six months: 11 & 12 Vict. c. 43, s. 11. This question was raised in the Court of Queen's Bench, in the last term, in a case of The Vestry of St. Pancras v. Morgan, upon the local acts of this parish, and the court there held that an action would not lie. Atherton (with whom was D. D. Keane), contrà.(a)-*That a *482] duty is created by the 105th section of the 18 & 19 Vict. 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. The 32 G. 3, c. 74, s. 8, imposes certain rates and duties "to be paid by the master or (a) The points which were marked for argument on the part of the plaintiffs were as follows:— "1. That the 225th and 226th sections of the 18 & 19 Vict. c. 120 do not apply to estimated expenses. "2. That the 18 & 19 Vict. c. 120 does not provide any remedy for estimated expenses: "3. That the 18 & 19 Vict. c. 120 does not repeal the 57 G. 3, c. 29, and therefore that the vestries acting in the exercise of paving powers under the former act, may act under or upon all or any of the provisions, clauses, powers, and authorities contained in it. "4. That the moneys sued for may also be recovered in this action by the plaintiffs under the 38th, 120th, and 137th sections of the 57 G. 3, c. 29, the powers, &c., of the commissioners acting under it being transferred to the plaintiffs: 5. That the effect of the 57 G. 3, is, to enable the commissioners and vestry to recover moneys due to them, by the process which may in a given case seem to them the more expedient; that the 105th section of the 18 & 19 Vict. c. 120 creates a duty or obligation to pay money, and that therefore an action will lie for its recovery; and that the power of distress given by the 225th section is merely a cumulative remedy." owners' for every ship or vessel of a certain burthen passing from, to, or by Ramsgate: s. 14 declares that "no coasting vessel or fisherman shall pay the duty charged by that act oftener than once in any year :" s. 15 empowers the collectors to distrain every ship and all the tackle, &c., for non-payment of the duties: by s. 16, it was enacted, that, if any master or owner of any ship or vessel should elude or avoid, or attempt to elude or avoid, payment of the duties, he should stand charged and be liable to the payment of the same, and that the same should be levied and recovered from such master or owner by the same method by which fines and penalties imposed by the act were levied and recovered and by s. 72, penalties and forfeitures were to be levied by action or distress. In Shepherd v. Hills, 11 Exch. 55,† the defendant, who was sued for duties under the above act, was the owner of a vessel which several times in the year sailed to Jersey, and brought from thence oysters which the defendant purchased from fishermen there, and which he deposited in beds at Milton: and it was held, that an action would lie on the statute for the recovery of the duties, and that the power of distress was merely a cumulative remedy. Parke, B., there says: "There is no doubt, that, wherever an act of parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the act contains some provision to the *con[*483 trary. (a) It is true that this statute gives a power of distress, but that is clearly a cumulative remedy." [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 of the 18 & 19 Vict. c. 120 is sufficient to preclude an action. It is submitted that that section does not confer jurisdiction at all upon the justice in this case. The words "in case of dispute" override everything that follows in that part of the section. To oust the jurisdiction of the superior courts, the language must be clear. The sum made payable by s. 105 is not properly described in s. 225 as "expenses:" the 105th section relates not to "expenses" merely, but "estimated expenses." [COCKBURN, C. 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, 11 Q. B. 731 (E. C. L. R. vol. 63). 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 ano (a) See Anonymous, 6 Mod. 27; The Mayor of Swansea v. Hopkins, 8 M. & W. 901;† Goody v. Penny, 9 M. & W. 687.† ther 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 *484] 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.] It is not sufficient to deprive a party of his common law right to have recourse to a court of law, that the statute has provided another remedy. [COCKBURN, C. J.-Here you have the new duty created by the statute which provides the remedy.] In the Earl of Shaftesbury v. Russell, 1 B. & C. 666 (E. C. L. R. vol. 8), 3 D. & R. 84 (E. C. L. R. vol. 16), the 33d section of the 43 G. 3, 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, 1 Car. & K. 546 (E. C. L. R. vol. 47),— 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 *485] 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 after wards it clearly could not have been the intention of the legislature to let in such a flood of litigation. In Shepherd v. Hills, 11 Exch. 55,† it is difficult to see how any question could have arisen, seeing that the very same section (s. 72) which gave the power to distrain also gave the deputy master a right to bring an action. A public local act,-1 Vict. c. xcvi., 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 Q. B. 667 (E. C. L. R. vol. 41). [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. By that section it is enacted, that, in all cases where any vestry or district board is authorized to order any costs, charges, or expenses to be paid by private parties, it shall be lawful for [*486 such vestry or district board to order and accept payment of such costs, charges, and expenses, together with interest thereon after a rate not exceeding 51. for the hundred by the year, by instalments, within such period, not exceeding twenty years in each case, as they may determine, the amount thereof to be recoverable in the same manner as other expenses are to be recovered under this act." It is said that the sum sought to be recovered in this action is not "expenses," within the meaning of the 225th section: but the language of the clause is as large as possible. COCKBURN, C. 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 *487] 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 matters than the one chosen by the legislature. I think we shall 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, 11 Exch. 55,† at first sight seems to be at variance: but, in that case, the remedy did not cover the whole right. WILLES, J., concurred. The law seems well settled in the United States as it is in England, that when a right, with its appropriate remedy, existed at common law, if a statute gives a new remedy in affirmative words, or rather without a negative express or implied, this does not take away the common law remedy: Crittenden v. Wilson, 5 Cowen, 165; Gooch v. Stephenson, 1 Shep. 371; The State v. Norton, 3 Zabriskie, 33. But if the right be conferred or created by the statute, the remedy prescribed by the statute and no other can be pursued: Almy v. Harris, 5 Johns. 175; Lang v. Scott, 1 Blackf. 405; Judgment for the defendant. 575; Bas Renwick v. Morris, 7 Hill, When a statute creates an offence and does not prescribe a remedy, the proper common law remedy may be employed: Colburn v. Swett, 1 Met. 232; Elder v. Bernis, Ibid. 599; Van Hook v. Whitlock, 3 Edw. Ch. 304. |