witnesses examined before them, that they both took an active part in opposing the finding of the bills, and that Mr. Walters, addressing the foreman, said that the road was perfectly useless. The road in question was admitted to be out of repair. In answer to this, Mr. Hunt and Mr. Walters made affidavits, stating that they did not take any active part in opposing the finding of the said bills; and that the only part they took was in the capacity of jurymen, in putting such questions to the witnesses as would elicit the truth, and that they believed they were ignored solely in consequence of the insufficiency of the evidence. An affidavit was also made by the foreman and another member of the grand jury, stating that Mr. Hunt and Mr. Walters did not take any further part in the proceedings on the said bills than the part usually taken by grand jurors in examining witnesses; and that they did not attempt in any way to bias or influence the other members of the grand jury, and that they believed the grand jury were guided in their determination solely by the evidence produced before them, and that all the witnesses on the back of the bills were called and such as appeared were examined. There were also affidavits that the road was not a public highway for carriages, and that it was said to have been made under an Inclosure Act, and that the owners of the adjoining land were liable to repair. Against these rules cause was shewn by

Whateley and Richards.-First, the supposed improper interference of the two members of the grand jury is expressly negatived by the affidavits. They attended in the exercise of their duty, and the evidence was fully gone into before the bill was ignored. Secondly, there was another remedy by preferring the indictment at the quarter sessions or at another assizes. Thirdly, the liability of the parishes is denied; and a criminal information does not lie. In Bacon's Abridgment ("Information" B., and "Highways" G.,) it is there said, "The Court will never give leave to file an information for not repairing a highway, unless it appear that the grand jury have been guilty of gross misbehaviour in not finding the bill; and they refuse it for this reason, that the fine set on conviction upon an information cannot be expended in the repair of the highway, whereas on an indictment it is always so expended." Rex v. Steyning (Sayer, 92) and Rex v. Chedinfold (Ca. temp. Hardw. 149) were referred to. The grand jury has not refused to find any bill; it has deliberated, and does not find the nuisance. That distinguishes this case from Rex v. Welsborn (1 Sess. Cas. 169), and Rex v. Green (1 Ld. Ken. 379). Pashley, contrà.-There is a clear right at common law to this remedy; and though by statute the information can only be filed by leave of the Court (4 & 5 W. & M. c. 18), yet since that statute, the Court has granted informations against parishes and parish officers, as well as justices of the peace. (Rex v. Wyvil, 2 Mod. 66, n.; Rex v. Symonds, Ca. temp. Hardw. 240; Rex v. Joliffe, 1 East, 154 (cit.); Rex v. Essex, Sir T. Raym. 384.) In Kelynge, p. 5, the judges resolved that an information may be filed against a township for the escape of a felon, if the inhabitants have neglected to make hue and cry after him. In a case not reported, a rule was made absolute for an information against the county of Buckingham, for neglecting to repair a county bridge. That being so, the question really is, whether there was misconduct on the part of the jury. If the facts stated in the affidavits in support of the rule amount to misconduct, the misconduct is clearly made out, for these affidavits are answered only by the general assertion that these gentlemen did not take an active or an unusual part in the proceedings. The objection is, that they took any part. Reg. v. The Justices of Hertfordshire (14 L. J. 73 M. C.; 1 New Mag. Cas. 183; 6 Q. B. 753) shews that a Court is improperly constituted, where any of the members interested in the

decision take part in the proceedings. There, on an appeal to the Quarter Sessions against an order of two justices for the payment, by a parish surveyor, of a portion of a highway-rate to a turnpike trust (under 4 & 5 Vict. c. 59, s. 1), the Sessions had confirmed the order; but it appearing that one of the Court was a mortgagee of the turnpike tolls, and that another was one of the justices who made the order, and therefore a respondent to the appeal (though he left the court before the actual decision), the order was quashed by this Court. If there has been any misconduct at all, the Court will not measure the degree of it. It has been suggested that if the inhabitants be found guilty and a fine imposed on them, the fine cannot be expended in repairing the highway. That would not seem to be correct; for the 5 & 6 Wm. 4, c. 50, s. 96, enacts, "That no fine, issue, penalty, or forfeiture for not repairing the same, shall hereafter be returned into the Court of Exchequer, but shall be applied towards the repair and amendment of such highway." The fine imposed after conviction on a criminal information is included in these words. If an information may not be filed by the party aggrieved, under circumstances such as these, the Court will deprive the subject of the benefits that belong to this mode of procedure.

LORD DENMAN, C. J.-We are by no means disposed to abdicate our jurisdiction to redress grievances by this process, neither do I think that gross misbehaviour ought to be necessary to induce us to exercise that jurisdiction. We will look at the affidavits.

Cur. adv. vult.

February 8.-The judgment of the Court was now delivered as follows, byLORD DENMAN, C. J.-It appears from the affidavits that the indictments for the non-repair of a public road having been ignored and thrown out by the jury, the prosecutor asked for leave to file a criminal information against the inhabitants of Upton St. Leonard's and Barnwood. The affidavits produced by him stated that two gentlemen, possessing property in those parishes, attended on the grand jury, and took an active part towards throwing out the bill. One of the witnesses examined says, he heard one of the gentlemen inform the other grand jurors that the road was useless: and that, before the assizes, the same gentleman had been applied to as a magistrate on the propriety of presenting the road as being out of repair, and he had discountenanced a proposal to refer the question of liability to a barrister, saying it was much better for the decision of a judge. None of these facts are denied, but these two gentlemen swear, in very general terms, that they took no undue part in the proceedings, and the foreman states, and two other members of the grand jury state, on their affidavits, that the two gentlemen did nothing unusual on that occasion. Now, the bona fides of the proceedings against the parishes is undoubted, and there is a strong case as to the road being a highway of the parishes; and this is an indictment that any one in the parish has a right to bring before a jury for decision; and we are of opinion that the prosecutor has been obstructed improperly in the attempted exercise of his right. We do not impute any improper motives to those who interfered, and we express no opinion on the merits of the case which may possibly receive an answer. We think, however, the connection of those gentlemen with the parishes ought to have prevented them taking any part in the discussion of the question; and the statement of the inutility of the road, though it might be irrelevant, was not unlikely to influence the grand jury in their decision. Without entering into the circumstances of the case, we think the statements of two members of the jury, where affidavits were produced, prove no more than that they were not aware

they were peculiarly active in opposing the bill; but the circumstances appeared to be so irregular, and so inconsistent with the administration of justice, that this Court is bound to exercise its controlling power to place the matter in a proper train of impartial investigation; and the rule accordingly must be made absolute.

Rule absolute.

E. W.

COURT OF QUEEN'S BENCH.

Easter Term, 1847.

DALE V. POLLARD.

Church-rate-53 Geo. 3, c. 127, s. 7—Jurisdiction of justices.

Where a bona fide intention is shewn of contesting the validity of a church-rate sought to be enforced by justices under 53 Geo. 3, c. 127, their jurisdiction is ousted under the proviso at the end of the 7th section of that statute, although the objecting party declines to dispute the rate in the ecclesiastical court.

Therefore, where the attorney of the party summoned stated that he should not dispute the validity of the rate before the justices, but should give a written notice, and then put in a notice, which, after protesting against the church-rate generally, continued thus, "I shall not contest the validity of the said rate in the ecclesiastical court; and I shall commence actions in the courts of common law against you and all other persons concerned therein, for all proceedings connected with the said rate which I shall be advised are illegal,"

Held, that the justices were ousted of their jurisdiction.

REPLEVIN tried at the York Summer Assizes, 1842. Verdict for the plaintiff, subject to a special case, with power to the Court to draw such inferences as they should think a jury ought to draw, with liberty to either party to turn it into a special verdict. The pleadings were set out at length in the case. The declaration was in the ordinary form. The defendants made cognizance, as bailiffs of certain justices, and under their warrant of distress, to levy 1s. 5d., the amount of a church-rate due from the plaintiff, as a rated inhabitant and occupier in the township of Bradford. It set out the demand by the churchwardens (two of the defendants), the refusal, the complaint to one justice, and summons thereon and appearance before the four justices, who thereupon issued their order for the payment of 1s. 5d. and 17s. costs, the service of the order upon the plaintiff, and the refusal to pay, and the warrant to distrain afterwards made by the justices directed to John Andrew, one of the defendants, and the levy by John Andrew, and the other defendants as his servants. The plaintiff pleaded in bar-first, De injuria; and second, that at the time of the examination into the merits by the said justices, the plaintiff disputed the validity of the said supposed rate, and then gave notice of his so disputing the validity of the said rate. Issue was taken upon the fact of dispute and notice at the trial. It appeared that on the 6th of May, 1841, a monition had issued from the Consistory Court of the Archbishop of York to George Pollard and B. B. Popplewell, the churchwardens of Bradford, in which they were peremptorily monished to take the necessary steps towards putting the parish church of Bradford in repair, and for providing necessaries for the decent celebration of divine service therein, and amongst other things to call a vestry to meet on the 14th of May, 1841, for the purpose of making a rate. Accordingly, on that day a vestry was held in the parish church, pursuant to notice, when the vicar, the Rev. William Scoresby, D.D., presided.

The monition having been read, it was moved that a church-rate, amounting to the sum of 3831. 4s. 2d., should be laid on the parish, for the purposes before mentioned; but it was rejected by a large majority, and an amendment, that there should be no church-rate for the parish church of Bradford for the current year, was passed. It was then, upon the chairman asking whether there was any other proposition, proposed by the opponents of the rate that a voluntary subscription should be raised instead; but that proposition was rejected by the churchwardens, as not being in accordance with their sense of duty and in obedience to the monition; but they proceeded, with the consent of the minority of the vestry, to make the rate. A protest was then signed against the rate by upwards of 200 persons; the assessment was made of 1s. 5d. upon the now plaintiff. The alleged rate was never questioned in an ecclesiastical court, and was apportioned upon the respective townships in the parish according to invariable usage. The churchwardens, the said Benjamin Briggs Popplewell and George Pollard, on the 17th of July, 1841, duly gave the plaintiff notice of the said rate, and demanded payment of the said sum of 1s. 5d., which he altogether refused to pay. The said George Pollard thereupon, on the 19th day of July, 1841, made his complaint to Lamplough Wickham Hird, Esq., a justice of the peace for the West Riding of Yorkshire, in which the parish of Bradford lies, and which complaint (assuming the rate to be valid) was duly made. Whereupon, Mr. Hird duly (on the same assumption) issued his warrant, under his hand and seal, requiring thereby the plaintiff to appear before him and others, her Majesty's justices of the peace for the said West Riding, on Wednesday, the 21st of July then instant, to shew cause why he refused to pay the above sum, the validity of the said rate not having been questioned in any Ecclesiastical Court. On the last-mentioned day, the plaintiff appeared accordingly before John Plumbe Tempest, Charles Hardy, John Green Paley, Matthew Thompson, and H. W. Hird, Esquires (the justices mentioned in the cognizance), justices of the peace for the said West Riding, none of them being patrons or patron of the said church, nor having any interest in any of the rights, dues, or other payments belonging to the said church, who then duly examined upon oath into the merits of the said complaints and thereupon then duly (upon the same assumption, and also on the assumption that notice of the validity of such alleged rate, or the liability of the plaintiff to pay the same being disputed, was not given to the justices in conformity with the stat. 53 Geo. 3, c. 127, s. 7) made their order, under their hands and seals, directing the plaintiff to pay the said sum of 1s. 5d., together with the further sum of 17s. ascertained by the said justices to be reasonable costs and charges. That on the said attendance before the said justices, and before the order last mentioned was made, the said minutes of the said vestry-meeting were read to the said justices, and it was proved that the plaintiff's proportion of the rate, according to the said assessment or rate-book, was 1s. 5d., and that he was rateable to that rate (assuming it to be valid), and that the said 1s. 5d. had been demanded of him, and payment of it had been refused by him. That the said justices asked the attorney of the plaintiff, who attended with and on his behalf, if he had any thing to say against payment of the 1s. 5d., to which the attorney answered, "The course I intend to pursue is to put in a written notice," when the chairman of the justices said to him, "I suppose that is to dispute the validity of the rate;" to which the attorney answered, "No, we shall not dispute the validity of the rate; we shall not try the validity of the rate before these justices, but we will merely give you a written notice." That the attorney also said he would bring an action against the magistrates if they enforced the rate; and the following written notice was thereupon served upon

the justices:"To her Majesty's Justices, &c.-I, the undersigned, do give you and each of you notice, first, that I protest against the church-rate alleged to have been made for the parish of Bradford, in the said riding, as being an attempt to impose an unscriptural and oppressive tax upon all denominations. of Christians for the benefit of one denomination only. Secondly, that I shall not contest the validity of the said rate in the ecclesiastical court; and, thirdly, that I shall commence actions in the courts of common law against you and all other persons concerned therein, for all acts and proceedings connected with the said rate which I shall be advised are illegal."

The case further found, that the said justices, at the time of the said attendance before them, the said justices, and of the said notice being served, and before and at the time of the said order being made, knew that the plaintiff denied and disputed, and intended to deny and dispute, the rights of a minority to impose a church-rate against the votes of a majority. It was deposed to by a witness at the trial, that on the 1st of September, 1841, the said Benjamin Popplewell and George Pollard applied to the said justices for a warrant to levy the said sums of money; that on that occasion, the plaintiff not being present, it was sworn before the said justices by the defendant, John Andrew, the constable of Bradford, that he had shewn the plaintiff the said order and served him with it, and demanded the sums of 1s. 5d. and 17s. mentioned therein, and that the plaintiff had refused to pay either of them. The evidence of this witness was objected to, but received, subject as hereinafter mentioned. It also appeared that Andrew on that occasion produced at the same time the order bearing an indorsement thereon in his handwriting, stating the service thereof in conformity with the above evidence. A copy of the order and indorsement formed part of the case.

The said magistrates on that day, after hearing that evidence, made their warrant under their hands and seals to levy the said sums of 1s. 5d. and 17s. by distress and sale of the goods and chattels of the plaintiff, directing the said warrant to the said John Andrew, and others whom it might concern; and under this warrant two books of the plaintiff were seized in his house, which was the taking in respect of which the action was brought.

The questions for the opinion of the Court are:-1st, Whether the above evidence given before the magistrates was to any extent, and how far, admissible; 2nd, Whether, with or without it, the first issue should be found for the plaintiff or defendants, or any and which of them; 3rd, Whether the verdict on the last issue should be found for the plaintiff or defendant; 4th, Whether the above case is to be turned into a special verdict, and what facts should be found and inserted therein.

T. F. Ellis, on behalf of the plaintiff.-As to the last issue, if necessary to discuss it, I will distinguish the present case from the decision in Gosling v. Veley (supra, 113). But the Court, being in the place of the jury, are to decide whether the intention to dispute the validity of the rate was bona fide. I only know of two principal authorities upon this point, Rex v. The Chapelwardens of Milnrow (5 M. & S. 248) and Rex v. Wriotthesley (1 B. & Ad. 648). The first case shews that it is enough to give notice of an intention to bring an action, and in this case the notice is that an action will be brought if payment of the rate be enforced. In Rex v. Wriotthesley it was laid down that it was not simply enough to announce in general terms the intention to dispute the rate, but that there must be something from which a ground for disputing it can be inferred. Here the facts were fully before the magistrates, and the case finds that they knew that there was an intention to raise the question whether this rate had been made by a majority legally constituted. It is true that the