rate signed is the rate resolved on, I think this rate has been well signed. The 69th section does not seem to make the signing a judicial act any more than the allowance by justices, which is merely ministerial.] The Commissioner's signature to the jurat under an affidavit is not a signature of the affidavit itself.

The main question is, whether vestrymen de facto could make this rate. If the old vestrymen are still in office because they have not been duly replaced by their successors, then the old vestrymen should have had notice of the original meeting; the act of the vestry was void, unless every vestryman had due notice of it; Dobson v. Fussy, 7 Bing. 305 (E. C. L. R. vol. 20). "All voluntary acts, not necessary to carry on the business of the corporation, seem to be void, whether done by an usurper or a mayor de facto, or under the authority of either: some *711] necessary acts, too, are certainly void, in both cases;" 1 Kyd on Corporations, 451. The act of making this rate by vestrymen de facto was not necessary in any sense. It was not necessary for the purpose of maintaining the existence of the vestry; for it had no such object or tendency: nor was it necessary for the relief of the poor, for there was a sufficient number of vestrymen de jure to do the act.

Watson replied. Cur. adv. vult. ALDERSON, B., now delivered the judgment of the Court. Upon the pleadings in this case, and upon the facts found by the special verdict, several questions arose, and were fully argued.

The first and most material question was, whether the rate was a valid rate. Under the 69th section of the local act power is given to seven or more of the vestrymen to meet, at such time and place as to them shall seem proper, to make a rate, notice of such meeting and of the purpose thereof having been given on the Sunday immediately preceding; and the rates and assessments so to be made, when signed by the vestrymen, or any seven or more, and allowed and confirmed by two Justices of the Peace for Middlesex, and notice given upon the Sunday next after in the parish church, may be collected and received by the person or persons appointed to receive them by the vestry. At a meeting on the 12th August, which was duly convened, due notice having *712] been given of the purpose of the meeting, *namely, the making of the rate, it was resolved by the vestrymen then present, exceeding seven in number, that a rate of 18. in the pound, for the relief of the poor, should then be made; but, as the number of parishioners was very large, it was impossible at that meeting actually to make a rate by assessing each individual in a certain sum; the meeting was therefore adjourned to a future day, and from that day to another, and so on until the 14th September, when the rate had been written out in four books, containing all the requisites of stat. 6 & 7 W. 4, c. 96, and agreeing with the resolutions of the 12th August. One of these books included the name of the plaintiff. The vestry proceeded to

resolve on signing, and to settle and sign, the rate books in pursuance of notice given to each vestryman for that purpose, and also resolved that application should be made for the allowance and confirmation of the rate to two justices; and a declaration was therefore written in each of the books at the end, to this effect; that the subscribing vestrymen, nine in number, declared the particulars specified in the above rate to be true and correct as far as they knew: and the nine vestrymen signed their names. Notice was given of several adjournments, but not of the purpose of these adjournments.

Several objections were made to the validity of the rate, none of which we think well founded.

One objection was, that the forty-six vestrymen appointed in May, 1839, were not duly elected, as was the fact; and that no notice of the meeting was given to some of the vestrymen, who, if their election was to be held void, still continued to act like legal vestrymen. The answer to that objection is, that, as the forty-six *vestrymen were de [*713 facto vestrymen, the rate made by them or all of them, having had due notice, was valid as the rate of the churchwardens and overseers de facto.

Another objection was, that there were four books, and that there ought to have been but one; and this also we think untenable.

Then it was said that the signature of nine vestrymen was not a sufficient signature within the meaning and intention of the local act, it being only a declaration to satisfy stat. 6 & 7 W. 4, c. 96, and not with the intention of authenticating the rate as a complete rate, which should be acted upon under the local act. We have already intimated our opinion in the course of the argument that the signature may very well answer both purposes: and this objection therefore must fail.

It was scarcely contended by Mr. Peacock, for the plaintiff below, that the rate was invalid simply because made on different days, if made at different meetings duly adjourned for the purpose from the first day; but he contended that a special notice of the purpose of each meeting, although an adjourned one, was necessary. We think that, as due notice, containing a statement of the purpose of the meeting, was given for the first meeting, it was good for all the adjourned meetings, which are in truth merely continuations of that meeting; and the objection therefore must fail. The rate, therefore, in our opinion, was a valid rate. The remaining questions are, whether all the material allegations contained in the avowry, and the whole of which are traversed by the plea in bar, are proved; and, if they are, whether, after the verdict, the avowry is good. The allegation that at the first meeting, [*714 *namely, that on the 12th August, a certain rate was made by all the vestrymen present at it, according to the form required by stat. 6 & 7 W. 4, c. 96, was proved by the fact found that it was begun at that meeting, and completed finally on the 14th September, to which day the

meeting was duly adjourned by different continued adjournments. In point of law all these meetings constituted one; and at one meeting the rate was begun and completed.

The avowry then states that, after the making of the rate, a certain other meeting was held on the 14th September, on which day the rate was duly signed by eight vestrymen then present. It was proved that a meeting was held on that day: and it was contended by Mr. Peacock that, if this was only part of the same meeting, and not a different meeting from that at which the rate was made and completed, the meeting could not be called one for one purpose and two for another. We felt considerable doubt as to this allegation; but we think the continued meeting may be treated as a different meeting. That held for making the rate was pursuant to a public notice specifying the purpose to be the making of the rate; and it continued to be the same meeting by reason of the adjournment until the rate was completed; and, after the rate was made, the meeting on the 14th continued, but continued for other purposes, pursuant to the notice by the vestry clerk that the rate book would be settled and signed on that day; and the declaration required by the statute was made and signed. It seems to us that the continuance of the meeting after the making of the rate was complete may be properly termed another meeting, so that there is really no variance between the *allegation in the avowry and the proof. Such *715] being our opinion, it is unnecessary to consider whether the word "other" in the avowry may not be rejected as surplusage, on the ground that it is wholly immaterial whether the signature was made at the same meeting at which the rate was made, or at another.

Then follows in the avowry some allegation as to the meeting on the 28th August, at which the rate was confirmed, which appears to be unnecessary, and may be all struck out without in any way affecting the validity of the avowry. The avowry then states the allowance and confirmation of the rate by the magistrates, and the proper steps to enforce it by distress; all of which are satisfactorily proved.

The result therefore of the whole is, that the avowry was, in our opinion, supported by the evidence, and is, as we think, unobjectionable in arrest of judgment; and we think the judgment should be for the defendant below. Judgment reversed. (a)

(a) The case in the Exchequer Chamber is reported by H. Davison, Esq.

The case was carried to the House of Lords by writ of error; and the judgment of the Court of Exchequer Chamber was there affirmed, July 11th, 1851. Lorant v. Scadding, 3 House of Lords Cases.

*In the Matter of MERCY CATHARINE NEWTON.

May 24.

[*716

A prisoner committed by a justice of the peace for murder was indicted at the assizes, pleaded Not Guilty, and was given in charge to a jury. The jury, after hearing the evidence and the summing up, retired at two in the afternoon, and remained in deliberation all night. Next day, being brought into Court, they stated that they had not agreed, and were not likely to agree, on their verdict. The other business of the assize for that county was over; and the Judge's duty called him to the next assize town. He discharged the jury and remanded the prisoner. On motion for a habeas corpus at common law:

Held: That, whether the Judge was or was not justified in discharging the jury, the discharge was not equivalent to an acquittal, and the prisoner was properly detained in custody under the original commitment. But

Held also that the Judge acted rightly in discharging the jury.

HUDDLESTON, in last Easter term, obtained a rule calling upon the prosecutors of the after-mentioned indictment to show cause why a habeas corpus ad subjiciendum should not issue, directed to the keeper of the gaol at Shrewsbury, to bring up the body of Mercy Catharine Newton upon notice of the rule to be given to the said prosecutors and to the solicitor for the Treasury.

By the affidavits on which the rule was obtained it appeared that the prisoner was committed on 13th December, 1848, by the warrant of a justice of the peace, for wilful murder. She was indicted at the ensuing Shrewsbury assizes before COLTMAN, J., and pleaded Not guilty. A jury was sworn, and charged to try the prisoner, on 21st March, 1849. The trial was begun, and adjourned to the following day; and about two o'clock on the 22d the jury retired. They continued locked up all the remainder of that day and all that night; and on the ensuing day, the 23d, were brought into court. They then stated to the Judge that they had not agreed and were not likely to agree upon their verdict. The learned Judge therefore discharged them, without their giving any verdict, and remanded the prisoner; and she still remained a prisoner in Shrewsbury gaol.

*On this day, as Sir J. Jervis, Attorney-General, was beginning [*717 to show cause, COLERIDGE, J., observed that it did not appear on the face of the affidavits that the day on which the prisoner was discharged was the first day of the assizes in the next county, that all other business at Shrewsbury had been disposed of, and that the duty of the Judge called on him to leave the town. His lordship stated that from a conference which he had had with COLTMAN, J., he knew this to be the fact: and he observed that in Conway & Lynch v. The Queen, 7 Irish Law Reports, 149, the Irish Judges had laid much stress on the absence of these circumstances. After some discussion, it was agreed that an affidavit supplying these facts should be filed, and that cause should now be shown as if the affidavit were already filed.

Sir J. Jervis, Attorney-General, then showed cause. It is clearly VOL. XIII.-54 2N2

settled to be the practice in civil cases, that if the Judge, in the exercise of his discretion, thinks it will tend to the furtherance of justice that the jury should be discharged, he may do so, independently of the consent of parties and the first question here is, whether a different rule prevails in criminal or at least in capital cases. The Judge, whether presiding at a trial for a capital offence or at a civil trial, has the same power, and the same duty to perform: if, after the jury are sworn, circumstances arise which render it necessary to discharge them in order that there may not be a failure of justice, he should discharge them in each case. In each he is to determine judicially whether the discharge is necessary. The authorities relied upon on the other *side are: Co. Litt. 227, b, *718] where it is said: "A jury sworn and charged in case of life or member, cannot be discharged by the Court or any other, but they ought to give a verdict:" and 3 Inst. 110, where COKE says: "To speak it here once for all, if any person be indicted for treason, or of felony, or larceny, and plead Not guilty, and thereupon a juryis re turned, and sworn, their verdict must be heard, and they cannot be discharged:" also an Anonymous placitum in Carthew, (a) where it is said: "Nota; per HOLT, C. J., at the sittings in Westminster, 9th Novemb. 1698, in a case of perjury tried before him, between The King and Perkins, he said, that it was the opinion of all the Judges of England, upon debate between them,―(1.) That in capital cases a juror cannot be withdrawn, though all parties consent to it. (2.) That in criminal cases, not capital, a juror may be withdrawn, if both parties consent, but not otherwise. (3.) And that in all civil causes, a juror cannot be withdrawn, but by consent of all parties." It is, however, very doubtful whether these passages were an accurate statement of the law, even in early times. Sir Thomas Raymond(b) says that: "In the case of one Ferrars, against whom an information was exhibited for forgery: it was resolved by all the justices, that although the jury be charged and sworn in the case of a plea of the Crown, yet a juror may be drawn or the jury dismissed, contrary to common tradition, which hath been held by many learned in the law." And in Doctor and Student, p. 271, the Doctor puts the case: "If one of the twelve men of an inquest know the very truth of his own *knowledge, and instructeth his fellows thereof, and they will in *719] no wise give credence to him, and thereupon, because meat and drink is prohibited them, he is driven to that point, that either he must assent to them, and give their verdict against his own knowledge and against his own conscience, or die for lack of meat: how may the law then stand with conscience?" It is answered: "I take not the law of the realm to be, that the jury after they be sworn may not eat or drink till they be agreed of the verdict: but truth it is, there is a maxim and an old custom in the law, that they shall not eat or drink after they be sworn, till they have given their verdict, without the assent and license (a) Carthew, 464. (b) Ferrars's case, T. Ray. 84.