interested who might appeal against it.
But, the
justices having made an order authorising such a rate,
and a distress-warrant having been applied for to levy
it, the question now is, whether we shall interfere to
enforce the granting of such a warrant. It may be a
doubt here, whether the proceedings by which it is
sought to authorise the warrant have been regular;
that is a question which the parties interested should
submit to the tribunal appointed by statute, namely,
the sessions. They have not done so, and it is now
said that we ought to grant a mandamus for the war-
rant to issue. But, if we did so, we might subject the
justices to an action, both on the general ground of the
alleged exemption from rate, and also upon others which
have been stated, and on which the justices would
certainly be exposed to an action. Those who wish
the warrant to issue should have given an indemnity :
as it is, the justices may say, "Here is an exemption
enjoyed by the landholders for nearly forty years; there
appears upon the order a want of statements shewing
jurisdiction, and it is not represented to us that, before
the making of the assessment, statute duty had been per-
formed, or composition paid." Under such circum-
stances it would be violent to grant a mandamus; and,
considering the conduct of the parties applying, and all
the facts of the case, we think the rule must be dis-
charged with costs.

LITTLEDALE J. I am of the same opinion. This is a dispute as to the liability of certain lands to highway rate. The proper course would have been that, upon such rate being made, either including or excluding the VOL. II.

Tt

lands,

1835.

The KING against MIREHOUSE.

1835.

The KING against MIREHOUSE.

lands, the party dissatisfied should have appealed to
the sessions. It cannot be expected that magistrates
should themselves decide such questions as this, upon
application to them for a distress warrant. After a de-
cision of the sessions in favour of the rate, a warrant
might have been applied for; though it is true that,
even after a judgment of the sesions, there might be a
reasonable doubt in such a case as the present, whether
the justices, if they granted a warrant, would not be
liable to an action. At all events the party applying
for a warrant should have indemnified the justices; and
it appears, upon the present statements, that no actual
offer of indemnity was made. Under these circum-
stances a motion is made for a mandamus. At the
meeting on the 17th of March, the magistrates took
considerable pains to determine whether the inclosed
lands were subject to rate or not; they adjourned the
inquiry; and then, on the 24th, an order was obtained,
as stated in the affidavits, for making the assessment in
question. I think we ought not now to interfere in the
manner proposed. There might be a reasonable doubt
(though I give no opinion on the subject) whether the
rest of the parish was right or not in insisting that these
lands should be assessed. And besides the general me-
rits, there were several formal objections; I do not mean
to pronounce that they were well founded, but they were
deserving of consideration, and might have been the sub-
ject of
great discussion. Were the justices, then, to be
put to the expense of litigating such a case? I think we
ought not to subject them to the liabilities they would
incur, if the objections to this rate should prove to be
maintainable.

WILLIAMS

WILLIAMS J. I am of the same opinion, and the more so because this question might have been raised in the first instance by appeal. I had some difficulty as to costs; but, considering the doubts which exist in the case, and that no indemnity was offered to the justices, and that there is not the slightest supposition that their refusal to issue the warrant proceeded from a mere unwillingness to act, I think they ought not to have been called upon to answer this application, and that the rule should be discharged with costs.

COLERIDGE J. The Court will not sanction magistrates in abstaining from the performance of a duty of this kind on grounds not sufficient in reason, or from reJuctance to incur any proper responsibility. But where there is no want of good faith, where no indemnity has been offered, and where there is reasonable ground to suppose that an action might be maintained against the magistrates with success, the Court will not interfere to compel them to issue a warrant. In the present case it is not suggested that the magistrates are not acting in good faith. As to the grounds for apprehending an action (which has, in fact, been threatened), I do not rely upon the alleged exemption of the moorlands from rate; upon that point, there is not enough before the Court to form ground for an opinion. At present I think that those lands might, perhaps, be included in the general rate. But the question is, whether there is any objection affecting the jurisdiction of the magistrates. Several have been pointed out sustainable in point of argument, and that is sufficient. It is unnecessary to express a more decided opinion on them; but I think

1835.

The KING against MIREHOUSE.

1835.

The KING against MIREHOUSE.

it right to state, that I do not as at present advised, agree with Mr. Erle, that a rate upon the lands in question would be justifiable under the second part of sect. 45. of the Highway Act, although nothing had been done by the proprietors as to statute duty; for this is the case, not of an individual but of a large division of a parish, which has never hitherto been assessed to the highway rate. Upon the whole I am of opinion, not on the general question of liabilitý, but on the objections to this particular rate, that the case is one in which this Court ought not to interfere: and the rule having been improperly obtained against magistrates, it follows, as matter of course, that it will be discharged with costs.

Rule discharged with costs (a).

(a) See Rex v. Trecothick, antè, p. 405.; Rex v. Dyer, antè, p. 606.; Rer v. Greame, antè, p. 615.; Rex v. Morgan, antè, p. 618. note (a).

1835.

PRUDHOMME against FRASER.

CASE for libel.

The declaration contained one

Wednesday, January 28th.

A count in libel contained

several innecting the

nuendoes con

different parts

of the alleged

libel with the

some in

nuendoes, and

affirmed others:

count, of very great length. The inducement stated that the plaintiff was a household cook, and that the libel was of and concerning him as such household cook. The alleged libel contained many plaintiff. The remarks as to household servants in general; and there jury negatived were innuendoes connecting these with the plaintiff, besides innuendoes connecting particular charges with him. In all, there were one hundred and eighty-seven innuendoes. Plea, Not Guilty. On the trial before Lord Denman C. J., at the last Middlesex sittings, it appeared that the plaintiff was a cook in the service of the Earl Grey, and that the alleged libel was an article

and a general taken for the

verdict was

plaintiff.

The Court refused a rule for a new trial,

but held the

defendant en

titled to his

costs as to so

declaration as

in a periodical publication, entitled "Fraser's Maga- much of the zine," relating to the conduct of servants in general,

charged libel

lous matter the

innuendoes respecting which

had been

but specifying particular circumstances respecting the plaintiff. The plaintiff, at the trial, applied to amend the declaration, by striking out a part; but the Lord negatived. Chief Justice held that the plaintiff must stand or fall by the declaration as then framed, and refused to allow the amendment. The jury found that some of the innuendoes were proved; but they negatived those connecting the general remarks with the plaintiff. A general verdict was taken for the plaintiff. In this term (January 13th (a) ),

(a) Before Lord Denman C. J., Littledale and Williams Js.

VOL. II.

U u

Erle