view of the constable; but taking the whole together, it is evident that the breach of the peace was actually continuing when he came in sight; and even if it was at an end, there was reasonable ground to apprehend its renewal. The King v. Howarth (6) is in point. The prisoner had been seen in a dwelling-house, and was found concealing himself, to avoid apprehension, upon other premises near; and it was held, that he could be arrested without warrant, even although the purpose was wholly ended. But next, even if there was no purpose of renewal, it is not clear that the constable has not this power. In Timothy v. Simpson, Mr. Baron Parke appears to treat it as still an open question, whether a constable can apprehend, on the information of a private individual that an affray has been committed, "after the affray has ceased, after the offenders have quitted the place where it was committed, and there is no danger of its renewal," with a view to take the parties before a Magistrate to give sureties. The authorities on both sides are cited by his Lordship in that case; but he treats it as clear that he may, if there be such danger; and the apprehension of this may arise from the facts reported by the witness to the constable. "For the sake of the preservation of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shews that the public are likely to be endangered by his acts." Ingle v. Bell is even stronger than Timothy v. Simpson; for in the latter case, the party was apprehended in the defendant's shop, creating a disturbance, and refusing to leave it: in the former, it appeared from the plea, that the plaintiff was apprehended in the street, only threatening to renew an attempt to break into the defendant's house. And this case only differs from both by the further circumstance, that here the plaintiff was taken, not on the exact spot where he had committed the offence, but near it. Then The King v. Howarth shews, that it is not necessary that it should be on the exact spot. The offender's remaining on the same spot, is only one circumstance among many to shew that he contemplated a renewal of the disturbance. His being found concealing himself might be another such circumstance. As to the general power to apprehend when (6) 1 Ry, & Moo. C.C. 207.

the act is over, whether renewal be apprehended or not, there are strong authorities in favour of it. Sharrock v. Hannemer (7), generally cited to shew that the constable has not such power, will, if examined, appear to prove the contrary. Compare s. c. cited in The Queen v. Wyatt (8), by which it appears, that the decision went on the ground of the disticntion there supposed to exist between a high constable and a petty constable; "for that a high constable was was not such an officer nor conservator of the peace, whereof the law takes any notice" -1 Hale P.C. 587. "If there be only an affray, and not in view of the constable, it hath been held, that he cannot arrest him without a warrant from the Justice; but it seems he may, to bring the offender before a Justice, though not compellable." See also 2 Hale P.C. 90. And the same is stated to have been ruled by Buller, J., in the argument in Hobbs v. Branscomb (9)— Dalton's Country Justice, cap. 8. tit. 'Affray,' 33.

Thesiger, contrà, was not heard.

LORD DENMAN, C.J.-This plea appears to be framed on the model of that in Timothy v. Simpson; but I must express my regret, that pleas of this description are getting into practice, by which Judges are made to do the office of a jury, and to find the law upon a great variety of alleged facts, such as are set forth upon this record. I will not touch upon the question whether the appointment of the officer is sufficiently stated: let us pass by that question. Taking the facts as they are alleged, no doubt the plaintiff was extremely troublesome, and, if any constable or policeman had found him. engaged in the commission of the acts recited, he would have been justified in interfering. But the annoyance had been discontinued the plaintiff had left the spot, and was found "in a certain close near the dwelling-house." How near the dwellinghouse? I cannot tell-the jury might have ascertained; and upon that might have partly depended the opinion they would have formed as to the plaintiff's intention. Next, we are informed, that the defendant requested the constable to take the plaintiff into custody; that is, when the plaintiff has

:

(7) Cro. Eliz. 375.

(8) 2 Lord Raym. 1195. (9) 3 Campb. 420.

actually left the place, he tells the constable to go after him, to prevent his repeating the outrage. But the defendant did this "to prevent the plaintiff from continuing to commit the outrage." Are we to infer from those words, after verdict, that the jury have found, in point of fact, that there was an intention to continue the outrage, and that the arrest was necessary to prevent it? I think not: it is too loosely stated. It is not averred that there was a continuing outrage, or danger of the outrage being repeated, but that the plaintiff thought so. The averment of a motive influencing his mind, is to be taken by us as equivalent to an averment of the fact of continuance. The King v. Howarth has no application. In that case, Mr. Justice Littledale reserved for the Judges the point, among others, "whether, under the circumstances of the case, the prisoner might be apprehended for the misdemeanour without a warrant"-Moo. C. C. 212; and the Judges thought that he might, because it was upon fresh pursuit; that is, the circumstances of that case were such as to afford a reasonable ground for considering it a continuing transaction. It was, therefore, matter of evidence, and not of law. We cannot enter into a discussion of the particular effect of each of these circumstances, which ought never to appear on the record at all; but it is sufficient to point out these deficiencies, which render the plea insufficient.

WILLIAMS, J.-It has been stated, in the argument, that doubts have been entertained how far a constable is justified in interfering on the information of an affray not actually going on. I say nothing upon that question; but I think, generally speaking, it has been understood, that if the affray was really over, the constable requires a warrant for his justification; not so, if there were symptoms of its continuance. Those symptoms are facts of which he may take cognizance, as well as of the actual breach itself; although no doubt there is a distinction, with respect to public danger, between an affray raging, and one no longer existing. But the facts stated upon the plea fall short of the supposition, on which alone, by the argument, it could be maintained. It is averred, that, in point of fact, the knocking and disturbance were discontinued; and that after such discontinuance, and to prevent their repetition, the defendant, accompanied by certain persons, followed the plaintiff, and overtook

him in a certain close near the dwellinghouse-how near, and how soon, are left entirely to inference. Unless then we can say, that if there has been a breach of the peace, no matter at what distance of time and place, a constable is justified in taking up the offender, the plea cannot be sustained. All its facts together fall short of the required justification.

COLERIDGE, J.-My judgment proceeds upon the assumption that the constable was acting within his jurisdiction. There is still not enough shewn to justify him. The facts stated are simply these: a breach of the peace, a threat to continue it all night, and its actual continuance for a certain space of time; that afterwards the constable is sent for, and the plaintiff goes away. It is true, that the plea goes on to say, that, in order to prevent the plaintiff from continuing to break the peace, the defendant caused him to be apprehended; but there is nothing to shew that the plaintiff did actually intend to continue it. To assert that the defendant expected its continuance, is by no means equivalent to asserting that it was about to continue or to be repeated. Therefore, on these pleadings, we are reduced to the question, whether a constable is justified generally in apprehending after a breach of the peace. As to the argument, that this defect is cured by verdict, it cannot be supported. That which it is required that we should presume to have been proved, cannot be deduced from any or all of these allegations, by any reasonable process of intendment.

WIGHTMAN, J.-It is unnecessary to determine whether or not the plea sufficiently sets out the authority of the constable. The point is, whether the defendant appears by it to have been justified, under the facts and at the time, in causing the imprisonment. The authorities which seem, or are thought to be, at variance, are collected in Timothy v. Simpson; and the result is, as stated in the judgment of the Court of Exchequer, that, "for the sake of the preservation of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shews that the public peace is likely to be endangered by his acts." The facts here alleged by no means bring the case within this principle; it only appears that the plaintiff, when he heard that the constable was coming,

ran away, and was pursued: all the rest is a mere explanation of the defendant's motives. It may have been, that the plaintiff was in the very act of going away when arrested; and it would be going an extreme length to hold, that, if so, the arrest was lawful.

1841. June 10.

Rule absolute.

THE QUEEN v. THE JUSTICES OF

ST. CLEMENT'S, IPSWICH. Church-Rate-Churchwardens de facto, Proceedings by-Order of Justices.

An order of Justices under 53 Geo. 3. c. 127, for payment of a church-rate, is not bad, because made upon the complaint of persons who were churchwardens de facto, but not de jure.

The fact of a suit having been commenced in the Consistorial Court, but which was stated to have been abandoned at the time the churchwardens complained, will not oust the Justices of their jurisdiction.

G. Christopherson appealed to the Ipswich Quarter Sessions, against an order made upon him by two Justices, for the payment of a church-rate. The Court of Quarter Sessions quashed the order, subject to a case for the opinion of this Court, which stated, that at a vestry on Easter Monday, in 1838, Messrs. Cobbold and Scott were elected churchwardens for the parish of St. Clement, Ipswich, and were duly sworn in, and made the declaration required by law. The notice of the vestry was given only upon the day before Easter Monday. They acted as churchwardens in that year, and were reelected in 1839. In September 1838, these churchwardens made a church-rate, and afterwards summoned the appellant for nonpayment of it, before two Justices, under 53 Geo. 3. c. 127, but he did not appear. No notice was given of his intention to dispute the validity of the rate, but the validity of the appointment of the churchwardens having been questioned by another person summoned for non-payment, the Justices refused to proceed further. Christopherson

was afterwards cited by the churchwardens, for the subtraction of church-rate, to the Consistorial Court of Norwich, but that suit was abandoned, and a fresh complaint having been laid against him, before two Justices, NEW SERIES, XI.—MAG. CAS.

for non-payment of the rate, when he did not appear, nor give any notice of intention to dispute the rate, the order in question, directing him to pay it, was made. The Court of Quarter Sessions quashed this order.

Gunning, in support of the order of Sessions. The order of the two Justices was bad, as Cobbold and Scott, not being legally churchwardens, were not competent to take any proceedings against the appellant. Three days notice of all vestries is required by section 1. of 58 Geo. 3. c. 69; here, only one was given, and consequently these churchwardens were not well chosen. By the statute 53 Geo. 3. c. 127. s. 7, the Justices are only empowered to act" upon the complaint of any churchwardens who ought to receive and collect the rate." That makes it necessary that they should be churchwardens de jure.

[LORD DENMAN, C.J.-You contend, that those words really meant to put in issue, their being churchwardens. They have been admitted and sworn in.]

That they act as churchwardens, is not sufficient. To an ejectment brought by them, would it not be a good answer to shew, that they were not churchwardens? Secondly, the jurisdiction of the Justices was taken away by the proceeding in the Ecclesiastical Court. That suit may still be going on; it is not enough to say, that it has been abandoned.

O'Malley, contrà.-The only questions are, whether churchwardens de facto are competent to make an application to the Magistrates; and whether what is stated as to the proceedings in the Ecclesiastical Court, ousts the Magistrates of their jurisdiction. (He was stopped by the Court.)

LORD DENMAN, C.J.-It appears to me perfectly clear, that churchwardens filling the office, may proceed in the recovery of church-rates. The whole argument rests upon the words in section 7, and it is said, these are not parties who ought to receive and collect the rates. The words used there, cannot have the meaning put upon them that is contended for.

LITTLEDALE, J., PATTESON, J., and WILLIAMS, J. concurred.

Order of Sessions quashed.
Order of Justices confirmed (1).

(1) See Turner v. Baynes, 2 H. Bl. 559.

C

An order of Justices, under the Highway Act, 5 & 6 Will. 4. c. 50. s. 65, directing a party to cause certain hedges, complained of as injurious to a highway, by excluding the sun and air," to be cut, pruned, or plashed, and the said trees to be pruned and lopped, and the said obstruction complained of, to the injury or damage of the highway, removed," is bad in substance, as not sufficiently explicit in its direction; and, where the party has refused to obey it, affords no justification to the defendant, in an action of trespass against the surveyor for cutting hedges and

trees.

Trespass for breaking and entering a close of the plaintiff's, and cutting and breaking down hedges and fences, cutting oak, ash, and birch trees, ornamental and other thorns. Plea-Not guilty, by statute.

The defendants were surveyors of the highways of the parish of Hasketon, in Essex. The plaintiff was owner of a farm, in the occupation of a tenant, but under a lease, reserving the fences and thorns to the plaintiff. The defendant Jenney laid an information against the plaintiff before a Magistrate, under section 65. of the Highway Act, alleging that he had refused to cut, prune, or plash certain hedges, on the right hand side of a high road in the parish. The plaintiff was summoned before two Magistrates, who, on hearing the information, made the following order :

Suffolk, to wit. Whereas, on the 23rd day of November 1839, information and complaint was made on oath unto me, George Thomas, Esq., one of her Majesty's Justices of the Peace for the said county of Suffolk, and re-sworn on the 27th day of the said month of November, before me, the said George Thomas and Robert Newton Shawe, Esq., one other of her Majesty's Justices of the Peace for the said county, by Edmund Jenney, of Hasketon, in the said county, Esq., and one of the surveyors of the highways of the said parish, that Abraham Brook, of Woodbridge, in the said county, wine-merchant, being the owner of a certain farm, hereditaments, and premises, situate in the said parish of Hasketon, in the occu

pation of Robert Butcher, farmer, had neglected or refused to cut, prune, or plash the hedges, and to prune or lop the trees hereinafter mentioned, upon his said farm at Hasketon aforesaid, that is to say, the several trees on the right hand side of the carriageway or cart-way, situate in the said parish of Hasketon, leading from Hasketon aforesaid, to Boulge, in the said county, growing or standing in the fence of a certain field, called Lower Tennings; also, the trees growing or standing in a belt or plantation, on the right hand side of the said carriage-way or cart-way, approaching the front entrance to the farm-house belonging to him, the said Abraham Brook; and also in the belt or plantation on the same side of the same carriage-way or cart-way, beyond the said. entrance and the gate leading into his said farm-yard; and also the trees and hedges on the same side of the same carriage-way or cart-way, growing or standing in a fence adjoining a certain field, called Shortlands; and likewise the trees and hedges on the left hand side of the said carriage-way or cart-way, growing or standing in the fence of a certain other field, called Whinney Field, whereby the sun and wind were excluded from the said carriage-way or cartway to the damage thereof, and whereby also obstructions were caused in the said carriageway or cart-way, contrary to the statute in that case made and provided; and whereas the said Abraham Brook having appeared before us, the said Justices of the special sessions for the highways, held at the Shire Hall, in Woodbridge, in the said county, on the said 27th day of November instant, in pursuance of a summons duly served upon him to answer the said charge, and the said offence having been fully proved before us, upon the oath of George Runnacles, also one of the surveyors of the said highways, we, the said Justices, do hereby order the said Abraham Brook to cause the said hedges to be cut, pruned, or plashed, and the said trees to be pruned or lopped, and the said obstruction complained of, to the injury or damage of the said highway, removed, within ten days from the service hereof. And we do also hereby order the said Abraham Brook to pay the sum of 6s. 6d. to the said Edmund Jenney, being the costs incurred by him up to the present time. Given under our hands, this 27th day of November 1839. R. N. Shawe, George Thomas.

These proceedings were taken under section 65. of the General Highway Act, 5 & 6 Will. 4. c. 50 (1).

The two defendants having deposed that the plaintiff made default in obeying this

(1) By which it is provided, "If the surveyor shall think that any carriage-way or cart-way is prejudiced by the shade of any hedges, or by any trees (except those trees planted for ornament or for shelter to any hop-ground, house, building, or court-yard, of the owner thereof,) growing in or near such hedges, or near other fences, and that the sun and wind are excluded from such highway, to the damage thereof, or if any obstruction is caused, in any carriage-way or cart-way, by any hedge or tree, it shall be lawful for any one Justice of the Peace, on the application of the said surveyor, to summon the owner of the land on which such hedges or trees are growing, next adjoining to such carriage-way or cart-way, to appear before the Justices at a special sessions for the highways, to shew cause why the said hedges are not cut, pruned, or plashed, or such trees not pruned or lopped, in such manner that the carriage-way or cart-way shall not be prejudiced by the shade thereof, and that the sun and wind may not be excluded from such carriage-way or cart-way to the damage thereof; or why the obstruction caused in such carriage-way or cart-way should not be removed. And the question, as to the cutting, pruning, or plashing such hedges, or the pruning and lopping such trees, or the removal of such obstruction as aforesaid, shall, upon proof of the service of such summons, and whether the said owner attend or not, be determined at the discretion of such last-mentioned Justices; and if such Justices shall order and direct that such hedges shall be cut, pruned, or plashed, or such trees pruned or lopped, in manner aforesaid, or such obstruction removed, the said owner shall comply therewith, within ten days after a copy of such order shall have been left at the usual place of abode of the said owner, or of his steward or agent; and in default thereof shall forfeit, on conviction, a sum not exceeding 40s. And the said surveyor, if the order of the said Justices is not complied with, shall, and he is hereby authorized and required to cut, prune, or plash such hedges, and to prune and lop such trees, for the benefit and improvement of the highway, and to remove such obstruction as aforesaid, to the best of his skill and judgment, and according to the true intent and meaning of this act; and the said surveyor shall be reimbursed by the owner as aforesaid, what charges and expenses he shall be at in cutting, pruning, and plashing such hedges, and pruning and lopping such trees, and the removal of such obstruction, over and above the said forfeiture; and it shall and may be lawful for the Justices, at a special sessions for the highways, upon proof to them made upon oath, to levy as well the expenses of cutting, pruning, and plashing such hedges, or pruning and lopping such trees, or removal of such obstructions as aforesaid, as the several and respective penalties hereby imposed, by distress and sale of the offender's goods and chattels, in such manner as distresses and sales for forfeiture are authorized and directed to be levied by virtue of this act."

order, the Justices aforesaid convicted the plaintiff of the offence charged in the information, and adjudged that he had forfeited 8s., and 14s. 6d. costs. The defendant Runnacles then proceeded to cut down the hedges, which was the trespass complained of.

At the trial of the action, before Patteson, J., at the Suffolk Summer Assizes, 1840, the defendants put in the order of the Magistrates, under the plea of not guilty, by statute. Several objections were taken to the form of the order, but they were overruled; and the jury found for the defendants.

A rule nisi was moved for and obtained, in the following term, for a new trial, on the ground of misdirection. It was objected to the order, amongst other things, that it did not appear by it that the plaintiff was the owner of the land next adjoining the highway; that it did not contain any sufficient finding of an offence under the act; and that it did not sufficiently direct the plaintiff what to do, he being ordered to "cut, prune, and plash" the hedges, &c., but without specifying to what extent this was to be done, or that it was to be performed in the manner required by the act.

Biggs Andrews and Byles now shewed cause. [The arguments on all the objections, except the last, are omitted, that alone having been noticed by the Court.]—They contended, that this objection was not tenable, because the order went on farther to state, that the said obstruction was to be removed, the obstruction being the privation of sun and air by reason of the trees, which sufficiently specified the extent to which the act was to be performed.

But,

at all events, this is only an objection of form, and cured by sections 107. and 118. of the act.

[LORD DENMAN, C.J.-The latter section can hardly apply, for the act gives no form for this particular proceeding.]

And it is, in the next place, immaterial to the defence of the surveyors, in this action, whether the order was good or bad. If an order be issued by the Justices, commanding the surveyor to act, he is bound to obey.

[LORD DENMAN, C.J.-The statute puts the surveyor in motion, on the disobedience by another party of a certain order: can you contend, that if the order is wholly irrelevant, the surveyor is bound to act?]

[COLERIDGE, J.-Must it not be such an order as that other party is bound to obey?]