1854. Friday, January 27th. The ratepayers of a district of a so much of the provisions of stat. 3 & 4 W. 4. c. 90. as relate to lighting, ordered a certain sum to be raised for the succeeding year, and elected in The QUEEN against DEVERELL and another. CROWDER, in last Term, obtained a rule calling on John Deverell and Robert Miller Mundy, Esquires, parish adopted two justices of Hampshire, and Edward H. Haggett, James Court White and George Small, overseers of the poor of the parish of Warblington, in the said county, to shew cause why the two justices should not issue a warrant of distress in pursuance of stat. 3 & 4 W. 4. c. 90. s. 38., for levying, by distress and sale of the goods of all or any of the said overseers, the sum of 150%, being the amount directed to be paid by the said overseers by an order, dated 6th July 1853, issued under the hands of five of the inspectors duly elected for carrying the provisions of the said Act into effect in the District of St. James, Emsworth, being a part of the parish of Warblington; or why a mandamus should not issue directed to the said two justices, commanding them to issue a warrant of distress for the purpose aforesaid. spectors; and a treasurer was ap The pointed. of the year, called upon the overseers of the parish to collect and levy, and pay to the trea surer, a part of this sum. The overseers not having obeyed, a summons was taken out, reciting an information that they had neglected to pay to the treasurer the amount of the order made on them by the inspectors in pursuance of the statute, and requiring them to appear to answer the information, and be dealt with according to law. They appeared, and made their defence against the complaint, which was supported on behalf of the inspectors; when the justices refused to issue a warrant of distress on the overseers in pursuance of sect. 38, though they were requested, on the part of the inspectors so to do. A rule was obtained, under stat. 11 & 12 Vict. c. 44. s. 5., calling on the justices and overseers to shew cause why the justices should not issue such warrant. The affidavit on which the rule was granted shewed the above facts, but did not show whether any or what evidence was given before the justices at the hearing, or what the defence was. The overseers having made no affidavit in answer, but opposing the rule on the ground that it did not appear that any facts had been laid before the justices making it incumbent on them to issue their warrant, this Court made the rule absolute, with costs to be paid by the overseers. From the affidavits on which the rule was obtained it 1854. appeared that, on 4th June 1841, an order in council The QUEEN issued, under stat. 59 G. 3. c. 134. s. 16., whereby Her Majesty assigned a district, part of the parish of Warblington, to a chapel in that parish, the district to be named St. James's District, Emsworth. Proceedings then took place (detailed at length in the affidavits) having the effect, as suggested, of an adoption, for this district, of the provisions of stat. 3 & 4 W. 4. c. 90., so far as they relate to lighting, by a resolution passed at a meeting held on 8th November 1852: and it was resolved, at the same meeting, that there should be twelve inspectors, who were accordingly then elected ; and that the money to be raised in the succeeding year for the purposes of the Act should be 250%.: and the affidavits set forth a notice of the above facts, and stated the circumstances under which it was given. A treasurer was afterwards appointed. At a meeting of inspectors (by adjournment) on 6th July, 1853, five inspectors were present; when it was unanimously resolved that the overseers of the parish of Warblington should be required to pay to the treasurer 150l., part of the amount which the inspectors were authorized to call for in the year. An order was then signed by the five inspectors, requiring the overseers to collect and levy the sum, and pay it to the treasurer within three calendar months: which order was delivered to J. C. White, one of the overseers; and a certificate of the election of the inspectors was served on the overseers. Further formalities (not material to the present report) were set out in the affidavits. The overseers did not pay the sum within the time named in the order: and the inspectors directed the treasurer to enforce payment: and the treasurer V. DEVERELL. 1854. The QUEEN V. Deverell. "did, on the 21st day of October last, make complaint to Robert Miller Mundy, Esquire," justice of Hampshire, "who thereupon issued a summons, under his hand and seal, of which a copy" was annexed to the affidavit. The summons recited that information had been laid before the justice, for that the overseers had neglected to pay "the treasurer duly appointed for the district of St. James Emsworth, in the said parish, of Warblington, by the inspectors of the said district, pursuant" to stat. 3 & 4 W. 4. c. 90., "the sum of 150%., the amount of a certain order made on you by the said inspectors in pursuance and for the purpose of carrying the provisions of the said statute into effect in the said district, three calendar months having elapsed since the delivery of the inspectors' order to collect and levy the said sum of 1501." The summons then commanded the overseers to appear on 25th October, "before such justices of the peace for the said county as may then be there, to answer to the said information, and to be further dealt with according to law." The three overseers were duly served with the said summons, and duly appeared, pursuant thereto, before" Mr. Deverell and Mr. Mundy, "and made their defence to the said complaint and summons, by Edwin Albery, of" &c., "gentleman, as their attorney; and the said complaint and summons were supported, on behalf of the" "treasurer of the said inspectors, by this deponent as his attorney." The further hearing was adjourned to 8th November, "and was then resumed, and concluded before the said two justices;" and "the said justices, at such conclusion of the said hearing, refused to issue their warrant for levying the said 150%, which the said overseers of the parish of Warblington were directed to levy, collect and 66 1854.. V. DEVERELL. pay by the said order, and which remained wholly unpaid as aforesaid; although this deponent, as the The QUEEN attorney or agent for the said inspectors and for" "their said treasurer, requested and demanded of them so to do. And this deponent further saith that the said justices have not granted their said warrant thence hitherto." It was further deposed that, by reason of the nonpayment, the inspectors had been prevented from carrying out the purposes of the Act. No affidavit in opposition to the rule was put in. Atherton and Cowling now shewed cause. Assuming that all the steps essential to the adoption of the provisions of stat. 3 & 4 W. 4. c. 90. had been taken, in conformity with sect. 5 and the following sections, and sect. 73 (a), still the Court cannot act on stat. 11 & 12 Vict. c. 44. s. 5. without further information than the affidavits supply as to what passed before the magistrates. All that appears is that the overseers were summoned for not paying, and a warrant of distress asked for; and that the summons was opposed: it may be that the inspectors failed to satisfy the magistrates that the Act had been duly adopted, or the resolutions duly passed, or the request duly made on the overseers. The provision of sect. 5 of stat. 11 & 12 Vict. c. 44. was substituted for mandamus: and, in conformity with the rule which prevailed as to mandamus, it must clearly appear (a) The counsel opposing the rule contended that the affidavits in support of the rule failed to shew that the Act had been regularly adopted, according to its provisions and those of stat. 7 W. 4. & 1 Vict. c. 45. The Court, however, were of opinion that the adoption was shewn by the facts deposed to; and the counsel did not finally persist in the objection. See Regina v. Overseers of Kingswinford, Easter Term, May 8th, post. 1854. V. HILARY TERM. that the magistrates had before them materials on which The QUEEN they ought to have acted, and have refused to act. DEVERELL. They have heard and decided, and, for anything that is shewn, rightly, The order of this Court, by sect. 5, is to issue "upon an affidavit of the facts:" the "facts" must be such as to bring the case within the circumstances under which the rule is to be applied for, namely, "where a justice or justices of the peace shall refuse to do any act relating to the duties of his or their office as such justice or justices." The duty is not shewn, unless it is shewn what case was made before the magistrates. The law in the case of mandamus appears from Rex v. Morgan (a) and Rex v. Mirehouse (b). The argument applies to both branches of the rule. Crowder, contrà, was not called upon. Lord CAMPBELL C. J. It seems as if some of the inhabitants of this district had a horror of sanitary reform. I see not the slightest ground for giving way to the objections urged: the proceedings appear to have been perfectly regular; and we are bound to interfere where justices refuse to issue a warrant which they ought to issue. It is said that we are not told what passed before them: but it is enough for us that we see a case in which the facts authorized the issuing of the warrant, and the justices refused to issue it. COLERIDGE J. No light is thrown on the subject by (a) Note (a) to Rex v. Greame, 2 A. & E. 618. (b) 2 A. & E. (32. See also Regina v. Justices of Worcestershire, post, P. 477. |