PUBLIC WORKS. [See LANDS CLAUSES CONSOLIDATION ACT.] Provisions of the 1 & 2 Viet. c. 117. as to the custody of monies paid under the standing orders by subscribers to works or undertakings to be effected by authority of parliament, repealed and re-enacted by the 9 Vict. c. 20; 24 Law J. Stat. 61. Money advanced out of the Consolidated Fund for carrying on public works, fisheries, and the employment of the poor by the 9 & 10 Vict. c. 80 ; 24 Law J. Stat. 198. Provisions usually contained in acts respecting the constitution and regulation of Commissioners for carrying on undertakings of a public nature, consolidated by the 10 Vict. c. 16; 25 Law J. Stat. 43. QUARE IMPEDIT. A statute, regulating the building, &c. of a new church in a parish, enacted, that during the life of the incumbent of the old church, the curate of the new church should be appointed by such incumbent, and that, after his death, the new church should become the mother church, with all the rights, &c., and the old church should become a chapel of ease thereto, to be served by a minister capable of having cure of souls, and the patronage of or right of presentation to the same chapel, as well as the patronage of or right of presentation to the said new church, should be vested in the patron of the rectory, so nevertheless that the minister of the said chapel should not be removable at pleasure:-Held, that the right of appointment to the chapel given by this statute was presentative and not donative. Semble that if it had been a donative, it would have ceased to be such, after a single presentment by the patron. Regina v. Foley, 15 Law J. Rep. (N.S.) C.P. 108; 2 Čom. B. Rep. 664. In quare impedit the Bishop has no right to counterplead the patron's title, by setting up title in the Queen by lapse.-[Confirming Elvis v. Archbishop of York, Hob. 315, and Apperley v. Bishop of Hereford, 9 Bing. 681.] The incumbent of a parish church presenting himself to a district church within the parish, established under the 58 Geo. 3. c. 45. and the 59 Geo. 3. c. 134, and the yearly value of the two livings exceeding 1,000, the parish church, under the provisions of the 1 & 2 Vict. c. 106. ss. 4, 11, becomes ipso facto void. Storie v. Bishop of Winchester, 19 Law J. Rep. (N.s.) C.P. 217. QUEEN'S PRISON. The act establishing the Queen's Prison amended by the 11 Vict. c. 7; 26 Law J. Stat. 20. The Master of the Rolls cannot inquire whether the keeper of the Queen's Prison obeys the regulations established for the government of the prison, or give directions as to the mode of treating a person committed for contempt. Oldfield v. Cobbett, 11 Beav. 258. QUO WARRANTO. [Rowley v. Regina, 5 Law J. Dig. 665; 6 Q.B. Rep. 668.] A proceeding by information in the nature of a quo warranto will lie for usurping any office, whether created by charter of the Crown alone, or by the Crown with consent of parliament, provided the office be of a public nature and a substantive office, and not merely the function or employment of a deputy or servant held at the will and pleasure of others. The office of treasurer of the public money of the county of the city of Dublin is an office for which an information in the nature of a quo warranto will lie. Darley v. Regina, 12 Cl. & F. 520. An affidavit stating that the deponent had seen the defendant "present at meetings of the town council, and acting as town councillor," is sufficient to ground a rule for an information in the nature of a quo warranto. A rule nisi had been obtained for such an information, on affidavits stating the badness of several votes given for the defendant. In shewing cause against it, the defendant produced affidavits, impeaching such a number of votes given for the other candidate, as would leave him (the defendant) in a majority, if all the votes attacked on both sides were struck off. The Court made the rule absolute, declining to try the right between the parties on these affidavits. Regina v. Quayle, 10 Law J. Rep. (N.S.) Q.B. 231; 11 Ad. & E. 508. In 1556 certain lands were demised by Sir JP to trustees, for the purpose of providing a weekly allowance and almshouses for six poor men in the parish of E; and also for finding a schoolmaster, who was to preach twice a year in the parish church of E. By charter of King James I. the hospital and school were incorporated by the name of " the master, schoolmaster, &c. of Sir J P," and the charity and appointment of master was subsequently regulated by private act of parliament:-Held, that an information in the nature of a quo warrante would not lie in respect of the office of master. Regina v. Mousley, 15 Law J. Rep. (N.s.) Q.B. 89; 8 Q.B. Rep. 946. Upon a quo warranto information for exercising the office of coroner for a borough (appointed under the 5 & 6 Will. 4. c. 76.) judgment having been given for the Crown,-Held, that the relator was not entitled to costs by the 9 Anne, c. 20. Regina v. Grimshaw, 17 Law J. Rep. (N.S.) Q.B. 19; 5 Dowl. & L. P.C. 249. not exceeding five feet, calculated with reference to the datum line shewn on the plans and sections deposited in pursuance of the standing orders of the Houses of Parliament, is within the powers of deviation conferred by the Railways Clauses Consolidation Act for Scotland (8 & 9 Vict. c. 33. s. 11), although the deviation may exceed five feet, calculated with reference to the surface line shewn on the said plans and sections. North British Rail. Co. v. Tod, 12 Cl. & F. 722. The Railways Clauses Consolidation Act does not impose on a railway company, acting as carriers, any further liabilities than those which attach to common carriers. Therefore, although the company carry coals and other goods for hire from one end of their line to the other, and carry goods other than coals from an intermediate station, they are not bound to carry coals from that station, unless they have publicly professed to do so; and even if they have held themselves out as carriers of coals from that station, no action for refusing to carry coals from it will lie, unless it be shewn that the company have conveniences at the station for receiving and carrying the coals. Johnson v. Midland Rail. Co., 18 Law J. Rep. (N.S.) Exch. 366; 4 Exch. Rep. 367. By the Railways Clauses Consolidation Act 1845 (8 Vict. c. 20.) it is provided, by section 49, that where any railway is carried by a bridge over any turnpike road, the width of the arch is to be such as to leave thereunder a clear space of not less than thirty-five feet; and by section 51. where the former average available width of the road for the passage of carriages is less than thirty-five feet, the width of the arch need not be greater than such average available width, but so as not to be less than twenty feet; provided that if the average available width of the road be afterwards increased, the railway company shall, if required, increase the width of their bridge to an extent not exceeding the width of the road so widened, or the maximum width therein or in the special act prescribed for a bridge. By the special act (9 & 10 Vict. c. ccxxxiv.) it was provided "that in every case in which the railway shall cross a specified road otherwise than at right angles, the bridge shall be made with skew arches so as not in any manner to alter the direction of, or interfere with, the line of the roads, or the footpaths to the same." Held, that the latter section applied only to the case of a road being turned so as to carry it at right angles under a bridge and again bending it back after passing the bridge to its original direction, but that it did not affect any question as to the width of the bridge or the narrowing of the road. Held, also, that the meaning of the above clauses of the general act is, that where the average available width for the passage of carriages on any road exceeds thirty-five feet, it may be narrowed to thirty-five feet under the arch; where it is less than thirty-five feet, the arch may be of the same width as the road, so as it be not less than twenty feet, and if the road be afterwards increased, the arch must be proportionably widened up to, but not beyond, thirty-five feet. A turnpike road, with footpaths on each side, was crossed by a bridge having a skew arch. The average available width for the passage of carriages was unaltered, and the arch exceeded twenty feet in width. The piers projected upon and narrowed the footpaths by the side of the road, and were built parallel to the line of the carriage road. Held, that the acts had been complied with, and that the footpaths could not be taken as part of the turnpike road over which the arch was to be thrown, within the meaning of the acts. Regina v. Rigby, 19 Law J. Rep. (N.S.) Q.B. 153. The holder of a railway bond, transferred to him in pursuance of the 8 & 9 Vict. c. 16. ss. 46, 47, must sue upon it in his own name. Vertue v. East Anglian Rails. Co.; Mills v. East Anglian Rails. Co., 19 Law J. Rep. (N.s.) Exch. 235; 5 Exch. Rep. 280. An agreement was entered into between a landowner and a railway company, that the former should not oppose a projected railway, on condition that there should be a reference to arbitration for, among other purposes, defining the line of approach to his premises from a turnpike road which it was proposed to divert. After the award indicating such approach had been made, it became expedient for the company further to divert the turnpike road, but within the limits of deviation, and consequently necessary to alter the line of approach to the landowner's premises :-Held, that the company were not precluded from making such alteration. Wood v. North Staffordshire Rail. Co., 1 Mac. & G. 278; 1 Hall & Tw.611. By a clause in a special railway act, after reciting that plans and sections of the railway, shewing the respective lines and levels thereof, and also books of reference, containing the names of the owners, &c. of the lands through which the respective lines of railway were intended to pass, had been deposited with the clerks of the peace, it was enacted that, subject to the provisions in that and the recited acts contained, it should be lawful for the company to make and maintain the railway and works on the line and upon the lands delineated upon the said plans. On the said plans was shewn by a cross-section the manner in which a street, intersected by the railway cutting, was to be carried across by means of a bridge, and also the ascent to the same bridge as 1 in 40. The company, in executing these works, proceeded to make the approach to the bridge by an ascent of 1 in 115, whereby the embankments were extended at a higher level along the front of the plaintiff's premises, to his damage:-Held, that the recital of the plans deposited did not incorporate them into the special act so as to preclude the company from exercising the power of altering the level of streets, &c. given by the 16th section of the Railways Clauses Consolidation Act. Also, that the plans deposited were referred to as shewing the datum line and level of the railway itself, and constituted no contract between the parties, except so far as they were incorporated into the act. The words "other engineering works," in the 14th section of the Lands Clauses Consolidation Act, refer to engineering works ejusdem generis, that is, in the formation of the railway itself. Rules by which the Court is guided in putting a construction upon two sections of a statute which are apparently inconsistent with each other. Where an order for an injunction was discharged upon an appeal, the defendants were held entitled to the costs of the original motion. Beardmer v. London and North-Western Rail. Co., 18 Law J. Rep. (N.S.) Chanc. 432; 1 Mac. & G. 112; 1 Hall & Tw. 161. A railway act (incorporating the Railways Clauses Consolidation Act) authorized the construction of a railway in the line and upon the lands delineated in the plans deposited, and crossing a turnpike road on a level, as represented in the plans. By an agreement with a landowner, it was recited that the company had purchased the land for the purpose of constructing the railway according to a certain plan and section deposited:"Held, that they had power to carry the turnpike road under the line instead of on a level. Breynton v. London and North-Western Rail. Co., 10 Beav. 238. Payment of or security for compensation in respect of damage consequential upon the execution of certain works by a railway company, is not, under the Railways Clauses Consolidation Act, 1845, made a condition precedent to the commencement of such works. Therefore, where a company, in the lawful execution of its powers, commenced the construction of works, by which the enjoyment of an easement by a neighbouring occupier of land might be interrupted, and damage sustained, a bill by such occupier to restrain by injunction the further progress of the works until the prospective damage should be ascertained, and the amount thereof paid or secured by the company, pursuant to the Lands Clauses Consolidation Act, 1845, was dismissed, with costs. Hutton v. London and South-Western Rail. Co., 18 Law J. Rep. (N.s.) Chanc. 345; 7 Hare, 259. RAPE. Where, on the trial of a case of rape, it was wished on the part of the prisoner that the jury should see the place at which the offence was said to have been committed, and the place was so near to the court that the jury could have a view without inconvenience, the Judge allowed a view, although the prosecutor did not consent to it. Regina v. Whalley, 2 Car. & K. 376. An acquittal on an indictment for a rape could not be successfully pleaded to a subsequent indictment for an assault with intent to commit a rape, nor could an acquittal on an indictment for feloniously stabbing with intent to do grievous bodily harm, be successfully pleaded to an indictment for an assault, although, in each case, the transaction was the same, and the accused might have been convicted of an assault, under section 11. of the statute 1 Vict. c. 85. Regina v. Gisson, 2 Car. & K. 781. RATE. [See STATUTES.] (A) CHURCH RATE. (a) Validity of. (b) Persons and Property rateable. (c) Recovery of. (B) POOR RATE. (c) Persons and Property rateable. (2) Exemption under the 6 & 7 Vict. c. 36. (C) COUNTY RATE. (H) RETROSPective Rate. (K) COMMITMENT FOR NON-PAYMENT OF RATES. Overseers and surveyors of highways enabled to recover the costs of distraining for rates by the 12 Vict. c. 14; 27 Law J. Stat. 16. A mode of levying and collecting rates in parishes situated partly within and partly without the limits of boroughs not liable to such rates provided by the 12 & 13 Vict. c. 65; 27 Law J. Stat. 91. An act for better assessing and collecting poor and highway rates on small tenements, 13 & 14 Vict. c. 99; 28 Law J. Stat. 294. (A) CHURCH RATE. (a) Validity of. The Court will not interfere by mandamus to enforce the making of a valid church rate, on the ground that the irregularity of the proceedings at the vestry, at which a church-rate has already been voted, has rendered such rate wholly void, it not appearing that such rate was actually made. Semble, also that, were it made, the Court is not the tribunal to decide on its validity. Regina v. Churchwardens of St. John the Baptist, Cardiff, 16 Law J. Rep. (N.s.) M.C. 54. The obligation of the parishioners to repair the body of the church is by the common law, and is not qualified or voluntary, but absolute and imperative; and when repairs are needful the only question on which the parishioners in vestry can by law deliberate is, how the obligation may be best, most effectually, most conveniently, and fairly between themselves carried into effect. If at a vestry meeting duly convened under a monition from the ecclesiastical court, calling upon the parishioners to make a rate for the repair of the church, the majority refuse to make any rate, no question being made as to the necessity and amount of the rate required, the minority can make a valid rate. So held, per Platt, B., Cresswell, J., Maule, J. and Alderson, B., affirming the judgment of the Court of Queen's Bench, (16 Law J. Rep. (N.S.) Q.B. 201; 7 Q.B. Rep. 406.) Dissentientibus Rolfe, B., Parke, B. and Wilde, C.J. At a meeting of the parishioners of Braintree, duly assembled in vestry, in pursuance of a monition from the ecclesiastical court directing them to make a rate for the necessary repair of the church, a rate of 2s. in the pound was duly proposed and seconded. No one disputed the necessity of the repairs, or objected to the amount of the estimate, or questioned the propriety of the amount of the rate; but an amendment was proposed, put from the chair, and carried by the majority on the show of hands, objecting to all church-rates on general principles, and declaring that the vestry refused to make a rate. The question was then put, whether any other amendment was proposed, or any proposition as to the amount of the rate was made; and no answer was given. The original proposition was not again formally moved or put from the chair; but the churchwardens and the minority proceeded then and there to make the rate of 2s. in the pound:Held, per Platt, B., Cresswell, J., Maule, J. and Alderson, B., affirming the judgment of the Court of Queen's Bench (ubi supra) (dissentientibus Rolfe, B., Parke, B. and Wilde, C.J.), that such rate was valid, because the conduct of the persons refusing to make such rate was equivalent to taking no part in the proceedings, and could not prevent the minority from obeying the law and performing their duty by making the necessary rate. In prohibition to prevent the rate being enforced, the declaration, after stating the above proceedings until the question was put, whether there was any other amendment or proposition, averred that no answer in the affirmative was given, and "that the majority of the said vestry having by the acts and means aforesaid refused to furnish the churchwardens of the said parish with the necessary funds as aforesaid, the now defendants, the churchwardens aforesaid and others of the rate-payers and parishioners of the said parish then and there present in vestry, on &c. did, in obedience to the aforesaid monition, and in discharge of the aforesaid obligation, cast upon them and the other parishioners of the parish of Braintree by the law and custom of this realm, at the said meeting of the said parish, and while the parishioners continued as aforesaid in vestry assembled," make the rate of 2s. in the pound:-Held, per Platt, B., Cresswell, J. and Rolfe, B., that it sufficiently appeared that the rate was made by persons other than the majority, who had previously voted for the amendment; and per Alderson, B. and Parke, B., that if the matter were left doubtful prohibition ought not to be granted; but per Wilde, C.J., that the probibition ought to be granted, because the question had not been properly put to the meeting, and the rate did not appear to have been made by any majority of the vestry constituted in any manner. Semble-Per Cresswell, J., Maule, J. and Alderson, B., that a rate is the only mode by which the parishioners in vestry assembled can compel the repair of the church. Gosling v. Veley, 19 Law J. Rep. (N.s.) Q.B. 111; 12 Q.B. Rep. 328. A chapel rate, duly made, but objectionable from extrinsic circumstances, can only be questioned in the ecclesiastical court. Where a chapel-rate was laid on the occupiers of land in the chapelry, excluding the owners and occupiers of mills and houses,-Held, that an occupier of land in the chapelry who had been summoned for non-payment of the rate, and had not objected to it before the Justices, could not question its validity in an action of replevin after distress on his goods under the Justices' warrant. An order of Justices for payment of a chapel-rate need not state the proceedings to have been on oath. Ramsbottom v. Duckworth, 19 Law J. Rep. (N.S.) M.C. 74; 1 Exch. Rep. 506. (b) Persons and Property rateable. By an act for rebuilding a parish church, (the preamble of which recited, that the steeple, by falling on the body of the church, had utterly demolished the same,) trustees were empowered to borrow money, and for payment thereof to make rates upon the yearly rent of all "lands, houses, shops, warehouses, vaults, mills, or other tenements within the parish." By other clauses one half of the rate was payable by the owner or landlord of the premises so assessed, and the other half by the occupier or tenant thereof, and the tenant was to pay the whole of such rate, and deduct one half of the rate out of the rent to the landlord. If any person assessed should quit his land, dwelling-house, warehouse, shop, vault, mill, or other tenement, without payment, the collector was authorized to follow and distrain the goods of such person. By another clause, the collector was at liberty to inspect the books of the poor-rates or land-tax, in order to ascertain the rates and assessments to be raised and levied by virtue of the act :-Held, that under the first-mentioned clause, the vicar was not rateable in respect of the tithes. Regina v. Neville, 15 Law J. Rep. (N.S.) M.C. 33; 8 Q.B. Rep. 452. (c) Recovery of. A proposition for a church-rate having been rejected by a majority of the parishioners assembled in vestry pursuant to a monition from the ecclesiastical court, the churchwardens proceeded to lay a rate of their own authority, with the consent of the minority of the vestry meeting. The plaintiff, who was a rated inhabitant of the parish, having refused to pay his proportion of this rate, was summoned by the churchwardens before two Justices, and his liability and default having been proved, he was asked if he had anything to say against payment of the rate; when he said, he should not try the validity of the rate before the Justices, but that he would put in a written notice, which he accordingly served on the Justices before making the order. The notice stated, first, a protest against church-rates in general, as being unscriptural and oppressive; secondly, a declaration that the plaintiff would not contest the validity of the rate in the ecclesiastical court; and, lastly, that he would commence actions in the courts of common law against all persons concerned in any proceedings connected with the rate which he might be advised were illegal. At the time of the hearing, the Justices were aware that the plaintiff disputed the right of the minority to impose a church-rate:-Held, that this amounted to a notification of an intention to dispute the validity of the rate so as to oust the jurisdiction of the Justices under the 53 Geo. 3. c. 127. Dale v. Pollard, 16 Law J. Rep. (N.s.) Q.B. 322; 10 Q.B. Rep. 504. Though the Justices, under the 53 Geo. 3. c. 127. s. 7, have no power to inquire into the goodness of a church-rate, yet the Court will not grant a mandamus to compel Justices to convene a party before them for non-payment of a rate, which is bad or very questionable on the face of it. Semble-that a church-rate, which purports in the heading of it to be made "for and towards the repairs of the church, and other incidental charges of the said parish and hamlet," is a rate bad on the face of it. Regina v. Byron, 17 Law J. Rep. (N.S.) M.C. 134; 12 Q.B. Rep. 321. In an indictment for disobeying an order of two Justices made under the statute 53 Geo. 3. c. 127, for the payment of a church-rate, an averment, stating (inter alia) by way of inducement, that a rate 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, &c., and that the defendant was in and by the said rate duly rated, &c. is sufficient, without setting out the facts which constituted the alleged due making, allowance, and rating aforesaid. Such an averment would not be sufficient, where it purported to be an allegation of the matter of the offence itself, and not merely by way of inducement. Where the same count of the indictment, after the above averment by way of inducement, went on to aver (inter alia) an information by the proper parties to the Justice by whom the warrant was issued, that the said rate was duly made, &c., and that the same was afterwards duly allowed, &c., and that the defendant was duly rated, &c., and that the party refused to pay, such information as above will give jurisdiction to the Justices making the order, irrespective of the truth of the facts deposed to; and that, therefore, the count would have been sufficient, even had the above averment by way of inducement been insufficient or omitted. Under the statute 53 Geo. 3. c. 127. s. 7, the fact of a rate duly imposed on a party, and the non-payment of it by such party, are not conditions precedent to the jurisdiction by the Justices to make an order for payment; and, therefore, an order purporting to be made on such an information as is above given would be valid, and could be enforced, whether de facto there was a proper rate, and a proper demand and refusal, or not. It is sufficient in an indictment to aver that the churchwardens were authorized to collect and receive the rate at the time of refusal, without averring that they were so at the time of the demand. A warrant (by way of summons) whereof the mandatory part is substantially set forth, but the inducement merely as follows:-" after reciting as is therein recited"-is sufficiently averred: such warrant need not be dated. It will be intended in favour of an order, that the above warrant was served a reasonable time before the day of appearance; as otherwise the Justices would have acted unjustly in making the order, which will not be presumed. The order need not be set out according to the tenour; the substance of it is sufficient. If in the indictment it sufficiently appears by implication that the rate was in force when the order was made, that fact need not be positively averred. Semble-under the statute 43 Eliz. c. 2. s. 4. in a special plea by a Justice to an action of trespass, it would be enough to state "a poor-rate duly pub lished, 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 such fact was proved to the satisfaction of the Justice," even though it might turn out, on further inquiry, that there had not, in truth or fact, been any such demand and refusal as was alleged before the Justice. Regina v. Bidwell, 17 Law J. Rep. (N.S.) M.C. 99; 2 Car. & K. 564; 1 Den. C.C. 222. (B) POOR RATE. (a) Validity of. To an action of trespass for breaking and entering the plaintiff's mill, and taking his goods, the defendants pleaded a justification under 1 Vict. c. lxxix. (local), that the defendants, as commissioners under the act, completed one of three reservoirs mentioned therein; that the plaintiff's mill was benefited by the supply of water therefrom; that a certain rate was made, and that the trespass was committed and the goods were taken as a distress for the non-payment of the rate. The plaintiff replied that only one reservoir had been completed. General demurrer. The 38th section enacts, that "no rate shall be levied or assessed under the provisions hereinbefore contained, until the said reservoirs shall be actually made and in use, and water supplied therefrom."-Held, on error in the Exchequer Chamber, (affirming the judgment of the Court of Exchequer), that, upon the true construction of the act, the completion of one reservoir entitled the commissioners to levy a rate on the class of persons mentioned in the act actually benefited by it; and therefore that the plea was good. Sidebottom v. the Commissioners of the Glossop Reservoirs, 1 Exch. Rep. 611. The district of D, which is locally situate within the parish of W, before the dissolution of the monasteries, had a chapel with a chantry and an endowment of land. The chapel and lands were granted in the 31 Eliz. to trustees, who always nominated the minister to the exclusion of the vicar of W. Before the 43 Eliz. c. 2. the chapel had all parochial rights, and its own churchwardens separate from W. The inhabitants of D have never contributed to the repair of the church of W, and D has always had its own surveyors of highways and constable. The titheable lands within D have always paid tithes to the vicar of W. The minister of the chapel is supported by the profits of the land with which it is endowed, but never received any tithes. There was originally only one overseer appointed for D, but since 1785 two overseers have been appointed. Separate poor-rates have always been made for D and W, and the poor in each have been maintained separately as to out-door relief. The amount in the pound raised has always been the same in both districts, the overseers of D taking the amount fixed by the overseers of W, or consulting with them as to the amount to be fixed, according as their rate was made subsequent or prior to that of W. There is no workhouse in D, but its poor were sent to the workhouse of W, and there maintained out of the rate levied on the parish. At the end of the year, the officers of D and W compared accounts, and the balance was handed over. The accounts of D, after being allowed by their own vestry, were submitted to the |