case the company OF ironmonger against Naylor and other if a Act of parliament  impose a duty on all house and edifice whatsoever with direction on nonpayment  to distrain house in the possession of a coloration though unfinished and  never occupy by any tenant whatsoever be liable to the duty and the officer on  demand of payment make to and refusal b that the corporation may distrain as  well the good on the premise as elsewhere S C Jones S C Pollexf S C vent S C  keb Cowp trespass the jury b that a special verdict find several act of  parliament videlicet the car c the car c and the car c for the better collect  of the duty arise by hearthmoney by officer to be appoint by the king which  Act provide that if the party refuse to pay the duty by the space of a hour  that then the officer with the constable may distrain they also find that the  company be seize in fee of five message in which be thirtyfive firehearths in  the month of April that the company do never finish these message and that  from the time of the building they stand all void and unoccupied by any tenant  or tenant whatsoever modern then they find that the collector be lawful  authorize and that such a day they demand the duty for the firebearths in each  of the say message which they also demand of the company and which they refuse  to pay and thereupon they take the distress and keep it till the company pay  the say duty and so make a general conclusion c the question be whether the  owner of a new house uninhabited from the time of the building thereof ought  to pay this duty during all that time Mr pollexfen and Mr simpson argue that  they shall not be Chargeable with this duty their general reason be because no  duty shall arise to the king without some benefit to the subject and as to  that it be say that in this case both the revenue of the crown and the  property of the subject be concern from which as from a root all these  imposition arise to sustain the public charge and therefore it have be the way  of judge in the interpretation of statute not only to consider the benefit of  the crown but to regard what be convenient for the subject there be two reason  for imposition first such as be custom videlicet tonnage and poundage and  private toll which come in lieu of other thing and so be quidpro quo second  subsidy or grant from the people which natural arise in some proportion from a  benefit to the subject and under the last of these reason fall the present  duty give by the Act of car c only to proportion the revenue to the public  charge of the crown and therefore it be not to be think that the parliament  ever intend a duty to the king where the subject have no benefit for ex  nothing nothing fit and how can it be think that a duty shall be pay before  the subject have any rend which be the mother of the duty for if a man expend  a thousand pound in building which be all he be worth and the house shall  happen not to be let how can he then raise such a sum as must be pay to the  king and it modern er p be a objection of no weight to say if this duty must  not be pay till the house be let then the revenue of the king depend upon a  contingency because all duty which come to the crown do depend upon such the  next thing to be consider be the Act itself and as to that modern first it  must be take as a Act which give a new duty to the crown and thereupon such  construction ought to be make that the subject estate be not charge further  than the word will bear and for that reason it be to be take in a ordinary  sense and not to be strain though it have be in the case of a old duty and for  that the Lord Anderson case a   a be a good authority videlicet the statute of  Henry c make all manor which descend to any heir who ancestor be indebt to the  king by judgement recognizance obligation or other specialty Chargeable for  payment of the debt tenant in tail be bind in a recognizance to S who be  attaint then tenant in tail die and his issue alien bind fide the king can  extend the land so sell because the Act shall not be construe to mean all  recognizance for the king debt though the word be general enough and though it  be not say which way the debt shall come to the king either by forfeiture  attainder c yet they shall be take in a ordinary sense videlicet such debt as  be due to the king original for which reason it have be always hold where a  Act give anything to he king and lie a charge upon the subject in such case it  ought to have a moderate construction and that this duty be a gift can be deny  for it be call so in the very Act therefore such ought the construction to be  and the rather because it be more for the king S honour it shall be so and  both in this case as well as in construction of his grant the law have more  regard for his honour than for his profit second this be so call a duty or tax  by the very word of the Act do in the natural sense import a proportion out of  that in which the subject have a benefit and it will be scarce find that there  have be a general tax give to the king where the subject have rather receive a  loss than any profit out of the thing tax because it will be very bare to pay  where a man can receive in the case of tonnage and poundage provision be make  that the party shall have allowance if the good be lose b that piracy W hich  be mention to show how unlikely it be that the parliament shall intend a duty  where the subject have a loss ever since the make the statute of Elizabeth c  house that lie void and untenanted have neither pay t church nor poor which  also show how the usage have be in case almost of the like nature the next  thing consider be the clause in this Act of car c modern first the first  clause give a duty videlicet that every obininey and stove shall pay two  shillings  Secondly the next clause be to bring this duty into a way of charge  videlicet that every owner or occupier shall give unto the constable a account  of the number of hearth in write and the constable to transmit such account to  the session there to be enrol by the clerk of the peace and a duplicate to be  send in to the exchequer from which it be to be observe that where mention be  make of bring this duty into a charge both owner and occupier be name but the  owner be not name in any place where the payment of the duty be mention but  the occupier only so that from the very intent and reason of the Act he can be  Chargeable the account thus transmit be to charge the inheritance and  therefore it concern the owner to look after the charge but for empty house he  can be charge because the Act take no notice of they in the clause of payment  but be purposely omit that be lie on the occupier and this appear by the  proviso which be strong pen for the subject videlicet provide that the payment  and duty hereby charge shall be charge only upon the occupier for the time be  c and not on the landlord who let and demise the same so that by the body of  the Act every house be charge which be general may have give some colour to  charge the owner but by the proviso the payment be restrain to the occupier  and if there be no such there shall be no payment it be say that it can be  insist upon that a owner be a occupier because the legal acceptance of the  word occupation do only intend a actual possession and not a possession modern  er p in law and such be the meaning of the statute by charge the occupier for  the time be if therefore the proviso extend to case where tenant run away and  pay no rend as it certain do because there be no occupier then in be what  difference can there be between that and this case where the landlord in both  have no rend for if he shall not pay where be can receive rend why shall he  pay where he have none to receive and that this be the meaning of the  parliament may further appear by a clause in the Act of car c make for collect  this duty by officer appoint by the king which do not enlarge the former  statute and by which it be enact that if any occupier shall leave his house  before any of the halfyearly feast whereon this duty be appoint to be pay  modern that the next occupier shall be Chargeable with the same for the say  halfyear which clause have be altogether vain and of no use if empty house  have be Chargeable with this duty for to what purpose be it to charge a  succeed occupier when the house itself though untenanted be Chargeable before  in this Act also which supply the defect of the former this duty be make  Payable to the officer upon demand at the house where the same shall arise and  grow due and that in case of refusal by the space of a hour the officer may  distrain which show a demand must be where there may be a refusal and no  refusal can be where there be no occupier there be also another clause which  mention both owner and occupier in this Act and which say that no proprietor  owner or occupier shall be molest or charge unless within two year after the  duty accrue so that wherever a charge be lie or a ease be give to the subject  the word occupier and sometime both occupier and owner promiscuous be use but  where a payment be to be make the owner be never mention and if so nothing  shall be intend within either of the statute to enlarge this duty upon the  subject beyond the word and plain meaning thereof second there be another  point in this case which concern the king and all the people of England that  be whether the defendant here can be charge with a distress suppose this duty  be to be pay to the king before any account of these bearths be transmit into  the exchequer which first ought to be do or otherwise the consequence will be  that the officer may demand and take as much as he will at his pleasure and  the king may be likewise prejudice in his revenue for as the collector may  have from the subject more than he ought and more than he be empower to take  by the law so he may pay the king less the Act direct that a account shall be  take by the officer and examine by the constable then to be transmit to the  session there to be enrol and from thence send into the exchequer now what  occasion be there of all this solemnity if the king be entitle to a distress  upon a bare refusal this be a rentcharge upon a man inheritance the king shall  not be entitle to it but by matter of record for he can take or part with any  thing neither can he have any estate or profit render he out of another man  estate but by matter of record so that it seem by the Act that this account be  necessary to be transmit into the exchequer and modern that the king be not  entitle to a distress for this duty until that be actual do which be not only  matter of information to the crown but in some measure entitle he to it  because there be a penalty of five pound lie upon the officer who shall  neglect to bring in such account which show that the subject ought not to be  charge before for which reason judgement be pray for the plaintiff Mr holt and  the attorney ginei all on the other side argue that empty house shall pay this  duty for the attorneygeneral say than the word in the Act be so express that  he be of opinion that the very read of they will clear the point in question  in their argument two thing be consider upon the statute of car c io first the  general clause which give the duty in the body of the Act and second the  discharge in the proviso and if this be in the body of the Act and not except  in the proviso then the duty be to be pay and as to that it be say that this  duty be give in general word by which it appear that there be a design and  intent to charge empty house for every dwellinghouse edifice or house  whatsoever be to pay this duty and if every house why not a empty house it be  true a dwellinghouse be not a house wherein there have not be a inhabitant but  wherein somebody do actual live and if a man furnish a house very well if it  be not inhabit it be notwithstanding a empty house and such a modern er p  house as to some purpose in the law be not a dwellinghouse for it be not a  mansionhouse so as to make it burglary for the break of it open by the second  clause every owner or occupier be to subscribe the account to be send into the  exchequer by which it appear that those word owner and occupier be not there  use in a different sense for if the occupier be only liable the owner need not  look after the sign the account of every hearth the three clause take notice  that if it shall happen there be no occupier then the officer may go into the  empty house to examine if the account give he be true now if a account be to  be take of such house as be charge b that this Act and a account be direct to  be take of empty house then such empty house must be charge and this seem to  they to be modern the intent and meaning of the legislature for there be a  return to be make of empty house if ouch have not be intend to be charge they  will have direct a return also to have be make of the noninbabitancy and  therefore they think that something more than a occupier be here mean for  otherwise the word owner have not be put in the meaning of which must be that  dwellinghouses come within the charge of occupy S and empty house within the  charge of the owner then as to the proviso that the duty hereby arise shall be  charge only upon the occupier and dweller of such house their executor and  administrator that can in no sort extend to discharge a empty house because it  be not the subject matter of the proviso for the design and purpose of it be  not to discharge the duty but to transfer the charge upon the tenant where the  house be inhabit for if a contrary construction shall be make then no duty  shall be pay at all by the owner himself if he shall live in his own house in  the case of a modus kill it be Payable by the occupier and possessor of the  house and the landlord be never charge but where there be no occupier as to  the objection that it be hard to pay a duty where a man have no profit it be  answer that the Act take care that man shall not stop up their chimnies when  once make and that this duty be pay for many chimnies which be never use and  what profit can a man have of a chimney he never use if there have be a Act  that so milk shall be pay for every window it be all one whether it have be  for profit or pleasure or whether the window have be use or not and there be  as much reason that a man shall pay for house never inhabit as for such as  have be inhabit and be afterward without tenant this Act ought therefore to  receive a favourable construction the preamble whereof mention that it be for  the increase of the king revenue which ispro good public and which be for the  peace and prosperity of the nation and the protection of every single person  therein and though a particular inconvenience may follow the party ought to  submit when a man build a house he propose a profit and it be not fit the king  duty shall be contingent and depend till he have provide himself of a tenant  as to the other objection that be much rely on videlicet where the Act speak  of a account to be give it mention both owner and occupier but where it direct  the payment of modern the duty the occupier only be name by which it be infer  that be alone be Chargeable it be answer that in the statute of car c owner  proprietor and occupier be use promiscuous wherein it be provide that they  shall not be charge unless within two year after the duty accrue now if the  owner be not Chargeable why be be mention there as to the second point they  conceive that the duty be Payable to the king he have a remedy by distress  before the account be certify into the exchequer for the return be to inform  the king what advantage he make of his revenue and no process issue upon it  beside the Act vest the duty in he from ladyday and by reason of that he may  distrain the king have no benefit by return of the account that be only intend  to prevent his be cheat so that it be not to entitle but to inform he it be  only to return a just and true account not but that it may be levy and the  king entitle before and it be no inconvenience to the subject if there be no  such account return for if the officer distrain for more bearths than in truth  there be the subject have a proper remedy against he the king suffer when  return be not make of such duty as he ought to have for the support of his  dignity and because he be liable to be defraud in the manage of his duty be it  reasonable that he shall lose all as to what be say of the king S modern er p  take by matter of record it be true if he divest a inheritance as in case of  attainder it must be by record but here the very duty be give to he by the Act  itself which make it a different case if the Kingshould be seize in fee of a  great waste which happen to be improve by his tenant and thereby tithe become  due it may be as well say that he shall have no lithes without record as to  say he shall have no hearthmoney for house new erect whereby his revenue be  increase for these reason judgement be pray for the defendant and upon the  second argument judgement be give accord for he that empty house be subject  and liable to this duty