as aforesaid, was afterwards and before the said 6th day of June, to wit, on the 30th day of May, in the year of our Lord 1844, at the parish aforesaid, in the town and county aforesaid, personally served upon and left with the said W. Bidwell, who then and there had notice thereof, and of the contents thereof. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. Bidwell so being summoned and convened, and having had such notice as aforesaid, did not appear at the guildhall of and in the said borough, in the town and county aforesaid, or otherwise or elsewhere according to the exigency of the said warrant and summons or otherwise; and thereupon afterwards, to wit, on the said 6th day of June, in the year of our Lord 1844, at the time and place in the said warrant in that behalf mentioned, to wit, at the guildhall of and in the said borough, to wit, at the parish aforesaid, in the town, borough and county aforesaid, at the hour of eleven in the forenoon of the same day, the said J. Eaden, (then being such Justice of the Peace as aforesaid,) and Julien Shrine, Esq., then and there being one other of Her Majesty's Justices of the Peace of and for the borough and town corporate of Cambridge, in the said county, did proceed to examine, and did then and there examine upon oath into the merits of the said complaint, and did then and there after such examination make their certain order in writing in the premises under their hands and seals, whereby, after reciting the making of the aforesaid information and complaint of the said William Alliston and John Hall as aforesaid, and the making of the said warrant and the service thereof upon the said W. Bidwell as aforesaid, and that he had been duly summoned and convened to appear as in that behalf aforesaid, to answer to the said information and complaint, and to be dealt with in the premises according to law in that behalf; and that he did not appear according to the exigency of the said warrant and summons, or otherwise, but therein wholly failed and made default, they, the said J. Eaden and J. Skrine, then being such Justices of the Peace as aforesaid, and not being, and neither of them being patrons or patron of the said church, or in any way interested in the premises, or in any of the rights, dues or other payments of or belonging to the said

church or the said parish of St. Botolph, did find, declare and adjudge, that on the said 4th day of August 1842, the said church-rate was duly made as by law in that behalf required, and that the same was duly allowed as by law in that behalf required, on the 6th day of the same month of August, and that the said W. Bidwell, before and at the time of the making and allowance of the said church-rate, was and still is a parishioner and inhabitant of, and the occupier of, a certain dwelling-house in the said parish of St. Botolph, in the said borough, town corporate and county, and then and still was duly rated in and to the said churchrate at and in the sum of 16s., and that the validity of the said church-rate had not been questioned in any ecclesiastical court, and that the validity of the said rate hath not been and was not disputed, and that the liability of the said W. Bidwell to pay the same, or the said sum of 16s. at which he was so rated as aforesaid, or any part thereof, had not been and was not disputed, and that the said sum of 16s. then was unpaid, and was justly and truly due and payable by and from the said W. Bidwell, for and in respect to, and on account of, the said rate, and that the payment of the said sum of 16s. had been, and before the making of the said information and complaint was, duly demanded of and from him the said W. Bidwell, and that he had refused and neglected, and before the making the said information and complaint had refused and neglected, and still did refuse and neglect, to pay the said sum of 16s. and every part thereof, and that the said sum of 16s. then was due and payable from the said W. Bidwell, in respect to the said rate, and that the church of the said parish of St. Botolph, in the said borough, town corporate and county aforesaid, for which the said churchrate had been and was made as aforesaid, was situated in the said borough and town corporate, and within the jurisdiction of them, the said Justices, as such Justices as aforesaid, and did thereby order and direct the said W. Bidwell to pay the said sum of 16s. (which they did thereby find to be due and payable by the said W. Bidwell in respect to the said rate,) unto the said William Alliston and John Hall, the churchwardens of the parish aforesaid, in the town and county aforesaid, who ought to receive

and collect the same over and above the sum of 11. 12s. 3d., the reasonable costs and charges of the said W. Alliston and J. Hall, in the premises as such churchwardens, which they, the said Justices did in and by the said order ascertain, find, and adjudge to be such reasonable costs and charges. And the jurors aforesaid, upon their oaths aforesaid, do further present, that a true copy of the said order was afterwards, to wit, on the 7th day of June, in the year of our Lord 1844, at the parish aforesaid, in the town and county aforesaid, personally served upon and left with the said W. Bidwell, and that the said W. Bidwell then and there had notice of the said order, and of the contents thereof, and of every part thereof, and that he, the said W. Bidwell, was afterwards, to wit, on the day and year last aforesaid, at the parish aforesaid, in the town and county aforesaid, requested by the said W. Alliston and J. Hall (who then continued and were the churchwardens of the said parish of St. Botolph, in the said town and county), and who by law then ought to collect and receive the said several sums of 16s. and 17. 12s. 3d., to pay to them the said several sums of 16s. and 17. 12s. 3d., but that he, the said W. Bidwell, not regarding the said order or his duty in that behalf, did not nor would when he was so requested, or at any time before or since, pay or cause to be paid to them or either of them, or any person or persons on their or either of their behalf, the said several sums of 16s. and 1l. 12s. 3d., or either of them, or any part thereof, but then wholly neglected and refused and continually since hitherto hath neglected and refused, and still does neglect and refuse to pay the same and every part thereof, to wit, at the parish aforesaid, in the town and county aforesaid, and the said several sums and each of them, and every part thereof, remain and remains, and are and is, wholly due and unpaid to the said W. Alliston and J. Hall, the said churchwardens, to wit, at the parish aforesaid, in the town and county aforesaid; and the said W. Bidwell hath not at any time complied with the said order, but hath wholly neglected and refused so to do, to wit, at the parish aforesaid, in the town and county aforesaid, in contempt of our Lady the Queen and her laws, to the evil example of all others in the like case

offending, and against the peace of our Lady the Queen, her crown and dignity."

The case was tried, before Parke, B., at the Cambridge Spring Assizes, 1846, when many objections were taken, both as to the sufficiency of proof and to the form of the indictment. It was agreed (on the suggestion of the learned Judge) by Gunning and Couch, who appeared for the Crown, and O'Malley and Burcham, who appeared for the defendant, that all the objections should be argued before the learned Baron in London.

The argument was accordingly heard before the learned Baron, at his chambers, in March 1847, when Couch appeared for the prosecution, and O'Malley, for the defendant.

The following judgment was delivered, at the request of Parke, B., at the Cambridge Summer Assizes, 1847, by

PATTESON, J.-Upon the argument which took place at my chambers, I intimated my opinion, that the allegation in the first count of the indictment, that the rate was duly made upon the defendant, which was the principal objection made to the evidence, was sufficiently proved; and it was thereupon agreed, by the learned counsel on both sides, that the available objections, if any, were to the form of the indictment, and that the case should be argued in arrest of judgment, the defendant being found guilty. Upon since referring to the indictment, I find that the second and third counts are each framed for the disobedience of an order on other rates than the one mentioned in

the first count: as there was only one rate proved, the defendant could only be found guilty on one count. The verdict must, therefore, be entered for the defendant on the second and third counts. The question then is, whether the first is bad, in arrest of judgment. I have considered this question very much; I have felt some doubt about it; but I proceed to state the conclusion to which I have come, and the reasons for it. The substance of this count, so far as it is necessary to notice it in order to explain the grounds of my decision, is, that the defendant was a parishioner and inhabitant of the parish of St. Botolph, in the town and county of Cambridge, and the occupier of a certain dwelling-house in the said parish, and liable to be rated in and to the said

church-rate; and that whilst the said defendant continued and was such parishioner, inhabitant and occupier, and so liable as aforesaid, to wit, on the 4th of August in the year of our Lord 1842, a certain churchrate, intituled "A rate or assessment of 2s. in the pound, made this 4th day of August in the year of our Lord 1842, by the churchwardens, overseers and inhabitants of the parish of St. Botolph, in vestry assembled, for defraying the necessary expenses and disbursements in and about the parish church, for the use of Mr. John Cole and Mr. William Alliston, church wardens," was duly made as by law in that behalf required, and that the same was afterwards duly allowed as by law in that behalf required, and that the validity of the said church-rate had not been questioned in any ecclesiastical court, and that the defendant was in and by the said church-rate duly rated at and in the sum of 16s., and that the said church-rate continued and was then in full force, validity and effect; and that, and whilst the said sums of 16s. remained due from, and unpaid by the defendant, to wit, on the 30th of May 1844, William Alliston and John Hall then and continually thence hitherto being the churchwardens of the parish aforesaid in the town and county aforesaid, personally went before John Eaden, Esq., one of her Majesty's Justices of the Peace of the borough and town corporate of Cambridge, and on their oaths informed the said Justice and complained before him, that on the said 4th of August 1842, the said church-rate was duly made as by law in that behalf required; and that the same was on the said 6th of August 1842, duly allowed as by law in that behalf required; and that the validity of the said church-rate had not been questioned in any ecclesiastical court; and that the defendant, who before and at the time of the making and allowing of the said church-rate had been and then was, a parishioner and inhabitant of, and the occupier of a certain dwelling-house in the said parish, was by the said church-rate duly rated to the said church-rate at and in the sum of 16s. ; and that the sum of 16s. had been duly demanded, as by law in that behalf required, of the defendant; that he had refused and neglected, and then did refuse and neglect, to pay the same and every part thereof to the said W. Alliston and J. Hall, who then were

the churchwardens of the said parish of St. Botolph in the said borough, town corporate, and county, who by law ought to have received and collected the same; and that the said sum of 16s. and every part thereof, then remained and was unpaid, and then was due and payable by and from the said defendant, for the said church-rate; and that W. Alliston and J. Hall, as such churchwardens, prayed justice in the premises, and that the said defendant might be convened before two or more of Her Majesty's Justices of the Peace of the said borough and town corporate, to answer to the said complaint. The count then proceeds to state the warrant of Mr. Eaden, under his hand and seal, whereby, after reciting as is therein recited, he required, summoned and convened the defendant to appear before two Justices for the said borough, on the 6th of June, at a certain hour, to answer the said information; and that the warrant was afterwards, and before the said 6th of June, to wit on the 30th of May, personally served on the defendant; that he did not appear, and thereupon two Justices of the Peace made the order which was afterwards served on the defendant, and which he disobeyed.

The first and principal objection made to this count was, that the allegation that the rate was duly made and allowed as by law in that behalf required, and that the defendant was duly rated therein at 16s. was insufficient, and that the facts ought to have been stated which constitute a due making and allowance of the rate, and a due rating of the defendant; as for instance, that it was made at a vestry meeting by the churchwardens and inhabitants there assembled, and that the defendant was fairly rated thereby, in proportion to the value of the property occupied by him; and many authorities were cited to shew that the word "duly" will not supply the want of such averments. It is not necessary to refer to all these authorities, the principal of which is The King v. Horne (1), for the general rule is undisputed, that the facts and circumstances constituting the offence itself must be averred in an indictment, otherwise the law resulting from the facts would be a question for the jury.

(1) Cowp. 683.

But there are two answers to this objection. The first is, that there is a distinction between the allegation of facts constituting the offence, and those which must be averred by way of inducement. In the former case, the circumstances must be set out with particularity; in the latter, a more general allegation is allowed. An "inducement to an offence does not require so much certainty"-Com. Dig. 'Indictment,' G, 5; as in an indictment for escape, debito modo commissus is enough, without shewing by what authority; and even commissus is sufficient-The King v. Wright (2). So in The King v. Wade (3), which was an indictment for disobeying an order of Justices to re-admit a member of a friendly society under the 33 Geo. 3. c. 54. s. 15, by which it was enacted, "that if a member of a society established by the act should think himself aggrieved, two Justices might determine the matter according to the rules of the society confirmed pursuant to the act," an averment that the society was established and the rules duly confirmed according to the act, was held sufficient; and Lord Tenterden observes, "that the matter objected to in the introductory part of the indictment was not, properly speaking, matter relating to the offence, but to the authority of the Justices who made the order." In The King v. Soper (4) under a similar indictment the allegation was, that the rules under the same act had been " duly exhibited, confirmed, deposited and filed of record," without stating how, and no objection was taken; and in The King v. Sainsbury (5) an averment that a meeting of Justices was "duly" held for the purpose of licensing seems to have been thought sufficient by Buller, J. and Ashurst, J. Unless indeed some general allegations were allowed, embracing both fact and law in such cases, it would tend greatly to the prolixity of indictments and pleadings. Now there can be no doubt in the present case that the offence for which the defendant is indicted is the disobedience of the order; the introductory facts are alleged only to shew that

(2) 1 Vent. 169.

(3) 1 B. & Ad. 861; s. c. 9 Law J. Rep. M.C. 113.

(4) 3 B. & C. 857.

(5) 4 Term Rep. 451.

NEW SERIES, XVII.-MAG. CAS.

the Justices had jurisdiction to make that order, and that the order was therefore obligatory, and they fall within the description of inducement. There is another answer to the principal objection. It is this, that independently of the allegation of the fact of the rate being duly made, and supposing that allegation to be struck out, the rest of the count shews that the Magistrates had sufficient authority to make the order, by reason of there being a sufficient information by competent persons to give them jurisdiction. The churchwardens, on whose information the Justices acted, were the proper persons to receive and collect; for the rate being unpaid, those who then fill the office can alone sue for it in the ecclesiastical court, and I think that their information alone gives jurisdiction irrespective of the truth of the facts contained in it. According to the words of the section in question (s. 7. of the 53 Geo. 3. c. 127.) taken in their ordinary sense, the fact of a rate duly imposed on a party, and also the non-payment of it by the party, are made conditions precedent to the jurisdiction of the Magistrates to make an order for payment; but the provision which follows, "that the Justices are to examine upon oath into the merits of the said complaint," and the power of appeal to the Sessions, lead me to think that these are not conditions precedent, and that an information on oath of a rate duly made, in which the party was rated, and of the refusal by that party to pay, would be enough, if supported by sufficient evidence, (of which they are to judge,) to give the Magistrates power to decide and make order for payment, so that the order, if made, would be valid and could be enforced, whether de facto there was a proper rate and proper demand and refusal, or not. This is, generally speaking, the case where Justices have power to decide judicially-Lowther v. the Earl of Radnor (6). The case of a poor-rate is not the same under the 43 Eliz. c. 2. s. 4, which is very differently worded. The validity of the rate is essential to the power of a Justice to issue a distress warrant, s0 that if the rate has not been duly published, or the party proceeded against be not an occupier within the parish, the warrant is

(6) 8 East, 113.

P

unauthorized, and the Justice liable to an action of trespass. Whether the fact of a demand on and a refusal by the occupier be essential to the jurisdiction of the Justice to issue the warrant, or his decision on the evidence thereof on oath before him, be sufficient, has not, I believe, been decided; but I have always thought it would be sufficient, and that in a special plea by a Justice to an action of trespass, it would be enough to state a rate duly published, and that the plaintiff was an occupier, and rated, and that there was a complaint on oath by the overseer that he did not pay on demand, and that that fact was proved to the satisfaction of the Justice: and I think that in this case, if there was a sufficient information on oath of a church-rate on which the defendant was assessed, and of the demand and refusal, the Magistrates had jurisdiction, and the order was valid; for why are the Magistrates to inquire into the merits of the case, and adjudicate upon them, unless their adjudication is to be binding, especially when it may be made the subject of appeal?

If this be so, the information is sufficient, as set out in the first count. It shews that the Magistrates have jurisdiction, for the rate is alleged to have been duly made, and no case has been cited, nor can I find any to shew that the order of a Magistrate is not valid, if founded upon information which does shew jurisdiction, merely because the information is open to the objection of informality in making a mixed allegation of fact and law, instead of stating the facts only. I think, therefore, that the first count is good, as far as relates to the principal objection. On the other objections I have never entertained any doubt. I think they are all unfounded. The second was, that it does not appear that the churchwardens were authorized to collect and receive when they demanded the rate. I think it is sufficient that they were so, when the rate was neglected and refused, which is the offence. The third objection was, that the averment of the warrant was defective, because it is stated, "that it was recited as therein recited," without stating what was so recited. Enough of the warrant would be stated without mentioning the recital. It was said also, that it was not addressed to any one. I think it is sufficiently

Justices satisfied themselves upon that point, otherwise they would have acted unjustly in making the order in the absence of the party, and the intendment is always favourable to the validity of an order. Another objection was, that the order should be set out verbatim, according to the tenour. There are precedents both ways, and there is no authority that it is necessary. It is not necessary in an action on a judgment. I do not see why it should be so on an indictment on an order. I think it is enough to set out the substance correctly. There are still two more objections, neither of them of any weight: one that the church-rate is not averred to have been in force when the order was made; the other, that the warrant was without date. As to the first, it is averred that it continued in force at the time of the indictment, and that the Justices found the portion of the rate assessed on the defendant to be due to the churchwardens, complaints which are, I think, quite sufficient; and the date of the order is in this case quite immaterial. In The Queen v. Fletcher (7), a date was necessary to the warrant of commitment to describe the time when the imprisonment was to commence. For these reasons, I think the judgment ought not to be arrested (8).