assessment which had previously been proposed, and in which those lands were not included. The second application being resisted on the part of the landholders, the justices, by consent of the parties, postponed the business to some future meeting, in order that they might inform themselves further on the subject; but, in the mean time (March 24th), another meeting of justices had been convened, at which Mr. Elton attended, but not Mr. Mirehouse; and there an order of two justices, Messrs. Lewis and Goldney, had been obtained for the assessment now in question, Mr. Elton being, as he now *stated, in[*635 duced by the parties applying to believe that no further opposition to the assessment was intended.

The occupiers of the newly inclosed lands in Clevedon conceived that they were not liable to contribute to the general repairs of the highways: and that, if they were so, a call ought to have been made upon the occupiers for statute duty or composition (under stat. 13 G. 3, c. 78, sects. 34 to 45,) before laying an assessment; whereas, in this case, it did not appear by the order, and they denied it to be the fact, that any such call had been made. Mr. Mirehouse and Mr. Elton deposed, that, upon the hearing of the summons, Maclean declared that he should commence an action against them if the warrant were granted: and Maclean himself now confirmed this, stating that he had, in fact, instructed his attorney to that effect. Messrs. Mirehouse and Elton further stated, that they did not adjudicate as to the liability of the inclosed lands to an assessment, but recommended, as the fairest mode of trying the question, that an assessment should be made upon the lands hitherto assessed, and an appeal entered against the rate for not including the newly inclosed lands: and that, upon an inquiry by the justices as to indemnity, Mr. Charles Macy, who professed to act as attorney for the parish, or for the surveyor, stated that he dared say the parish would indemnify the justices; but it did not appear (and a subsequent affidavit denied) that any vestry meeting was ever called on the subject; and no formal indemnity was ever offered. The two justices also deposed that they doubted the validity of the assessment on account of the statute duty not having been called for: and they added, that no notice had been given by any justice or high constable, of the special session (or adjourned session, if it was one, which, however, was *denied) of the 24th of March, at which the order for the assessment was made: and, further, that the rate was not in any part of it dated, so that it might have been (as Mr. Mirehouse and another deponent were informed and believed it was) made and signed by the surveyors before the order for making it was obtained. The objections as to the statute duty, the want of date to the assessment, and the unfair manner in which the order for an assessment had been obtained, were urged on behalf of Maclean when he attended before the justices on the summons; and he now stated on affidavit, as a further objection, that the order did not shew that the persons signing it did so in the capacity of justices. (a)

[*636

In a supplemental affidavit by Macy, it was stated that Maclean, on attending the summons for nonpayment of the rate, was asked by one of the surveyors whether he would do statute duty or pay composition if the assessment were abandoned; but that he refused to do so, on account of the exemption relied upon for the inclosed lands. Macy further stated that, when the rate was made, the roads in the parish were so much out of repair as to render an assessment necessary, even if the occupiers of the inclosed lands had all done statute duty or paid composition.

Sir John Campbell, and Rogers, now shewed cause. The Court will not grant

(a) The order ran as follows,-" Somerset to wit. At a special sessions for the highways, held at," &c., on, &c., "by justices of the peace for the said county, acting within the said hundred. Upon application made to us," &c., "and upon evidence given upon oath before us," &c., "and it appearing to us," &c. "We do hereby order," &c. Given under our hands and seals," &c.

"J. L. G. G."

a mandamus to the justices to enforce this rate by a distress warrant, *6371 since there is, at least, a reasonable doubt whether the warrant could be justified, and there is another mode in which the question of liability to such an assessment may be tried, namely, by appeal, as suggested by the justices. [COLERIDGE, J. The act 13 G. 3, c. 78, s. 80, makes the determination of the sessions final, and forbids the removal of any proceedings under the act by certiorari.] If the thing is done without jurisdiction, a certiorari lies: Rex v. The Justices of Somersetshire, 5 B. & C. 816. That the Court will not grant a mandamus to justices to do that which would expose them to an action, has been decided in many cases; Rex v. Newcomb, 4 T. R. 368; Rex v. The Justices of Buckinghamshire, 1 B. & C. 485; Rex v. Broderip, 5 B. & C. 239. [Lord DENMAN, C. J. I do not see what is to exempt the inclosed lands from the general rate.] The Court has not, at present, the proper materials for deciding that point. It is clearly contrary to the statute, 13 G. 3, c. 78, ss. 34 to 45, to lay a rate before it is proved that the statute duty has been done, and the composition money expended: and those requisites have not been fulfilled as to the lands in question, although the order purports to be founded on an application by the surveyor for Clevedon, stating upon oath, generally, that the duty has been performed and the money laid out. The order, so far as is shewn by the statement of these facts contained in it, is regular; but if it came to the knowledge of the justices who were required to grant the warrant, that the statement on which the order proceeded was not true, they could not have justified in an action of trespass if they had issued such warrant; Low*638] ther v. The Earl of Radnor, 8 East, 113; Pike v. Carter, 3 Bing. 78; Stanley v. Fielden, 5 B. & Ald. 425. Then, as to the other objections; where magistrates are to make an order in that capacity under a statute, their authority ought to appear by the order; Rex v. Fylingdales, 7 B. & C. 438. Here the order did not shew that the parties making it acted by any authority. And, again, whether the session at which this order was made was an original or an adjourned session, notice of it should have been given according to stat. 13 G. 3, c. 78, s. 61. The order, therefore, not only having been obtained by deception, but being irregular in itself, the magistrates would not be safe in acting upon it, and ought not to be compelled to do so by mandamus.

Erle, contrà. The parties making this application are willing that the rule should be enlarged till a vestry can be convened for the purpose of indemnifying the magistrates. As to the objections made to the order, nothing has been shewn which can exempt these inclosed lands from the general highway rate. The functions, therefore, which the magistrates are called upon to exercise in granting a warrant, are little more than ministerial. It is not, indeed, stated in the order, nor does it appear to have been proved before any of the justices, that statute duty has been performed, or composition levied for these particular lands; but, so far as the surveyors had control, the duty has been done and the raised: it cannot be said that a rate shall be illegal because some money *639] person may be able to say to the surveyor, "I have not done statute duty or paid composition." And the order recites, that the highways within the parish are stated by the surveyor on oath to be so far out of repair, as to render application for a highway rate for the parish absolutely necessary. This is sufficient to authorize the imposing of a rate, according to the second alternative stated in 13 G. 3, c. 78, s. 45. Macy's affidavit shews, that even if the inclosed lands had done statute duty, or paid composition, a rate would still have been necessary. It is said that the special session at which the order was made was not legally convened; but the justices now shewing cause attended the session of March 17th, at which the application for an order was postponed to a future meeting; and it does not appear that the notice for the special session of March 24th, was not given by authority of the high constable, which would have been sufficient. As to the authority of the justices not appearing on the order, the document, by its context, sufficiently shews that the parties VOL. XXIX.-20

[*610

signing are justices. Then, as to the alleged insufficiency of the order by reason of its being grounded on an incorrect statement; Lowther v. The Earl of Radnor, 8 East, 113, does not prove, that if the warrant was granted upon a representation which, upon inquiry, would have been found untrue, such warrant was therefore illegal. There the question was, whether the facts relied upon could invalidate the warrant, not having been laid before the justices when the same justices made the adjudication on which the warrant was grounded. Here, the facts *now alleged as to statute duty had been considered by other justices than those granting the warrant, and were no longer in question when it was applied for, nor could those facts have been gone into if the justices had granted the warrant, and been sued in trespass. Fawcett v. Fowlis, 7 B. & C. 394, shews that this would have been so held in the case of a warrant granted upon a conviction. Here, the magistrates who were applied to for the warrant had before them an order of two other justices, which was good upon the face of it; they were not bound to enter anew into the facts which had been adjudged upon, and ought to have been duly inquired into, by the former justices. Stanley v. Fielden, 5 B. & Ald. 425, differs entirely from this case in the circumstances on which the decision proceeded. It is suggested here that an assessment should be made, excluding the inclosed lands, and an appeal entered against it at the sessions. But if the sessions decided that those lands ought to be rated, and a rate were made accordingly, the parties seeking to enforce it would but stand in the same situation as they do now.

[*641

Lord DENMAN, C. J. This is an application for a mandamus to enforce a highway rate. If such a rate is invalid in any particular, the remedy pointed out by statute is an appeal to the sessions, and we must suppose that remedy a complete one; we are not to presume that the sessions would fail to do right between the parties. In this case, if a rate were made excluding the lands now in question, there are parties *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 authorize 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 warrant 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 performed, or composition paid." Under such circumstances 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 discharged, 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 [*642 *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 decision 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 sessions, 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 circumstances 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 merits, 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 subject 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. *643] *WILLIAMS, J. I am of the same opinion, and the more so because

case,

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 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 reluctance 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 *644] to express a more decided opinion on them; but I think 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 liability, 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)

*645] *PRUDHOMME against FRASER. Wednesday, January 28.

A count in libel contained several innuendoes connecting the different parts of the alleged libel with the plaintiff. The jury negatived some innuendoes, and affirmed others; and a general verdict was taken for the plaintiff.

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

The Court refused a rule for a new trial, but held the defendant entitled to his costs as to so much of the declaration as charged libellous matter the innuendoes respecting which had been negatived.

CASE for libel. The declaration contained one 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 remarks as to household servants in general; and there 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, in appeared that the plaintiff was a cook in the service of the Earl Grey, and that the alleged libel was an article in a periodical publication, entitled "Fraser's Magazine," relating to the conduct of servants in general, 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 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))

*Erle, moved for a rule to shew cause why there should not be a new [*646 trial or why the Master should not be directed to allow the defendant his costs on so much of the declaration as related to the parts of the libel as to which the innuendoes were negatived. The verdict ought to have been confined to those parts only of the libel which were found to relate to the plaintiff. Where there are several innuendoes, the issue on not guilty must be considered a divisible issue. [Lord DEN MAN, C. J. No doubt a plaintiff who succeeds may confine his verdict in that way, but there is some difficulty in saying that, if he has a general verdict, he may not retain it as to the whole.] If there had been no innuendo, then the finding of the jury, as to any part, might possibly have supported a general verdict. But the averments in the innuendoes are several and material; and some of those being negatived, the defendant is entitled to a verdict on them. In Sellers v. Till, 4 B. & C. 655, the inducement alleged that the plaintiff was treasurer and collector of certain tolls, and that the slander was spoken of him "as such treasurer and collector," and the innuendo connected the words with the plaintiff "as such treasurer and collector." On the trial, it could not he proved that he was collector, and a nonsuit was directed, which the Court here confirmed, on the ground that the innuendo made it necessary to prove the applicability of the words in each character. In Smith v. Carey, 3 Campb. 461, an action for slandering the plaintiff in his trade, the innuendo was, that the plaintiff " was guilty of felony and robbery:" the evidence failed as to the imputation of felony; and Lord Ellenborough said that, though the words ("he lived by swindling and robbing the [*647 public") were actionable in themselves, and the plaintiff would, if there had been no innuendo, have been entitled to a verdict, yet the jury must be satisfied that the meaning was to impute felony, not merely fraud: and the defendant had a verdict. In Heriot v. Stewart, 1 Esp. Ñ. P. C. 437, the plaintiff declared as proprietor and editor of a paper; and, upon its appearing that he was proprietor, and not editor, he was nonsuited. Then as to the second branch of the rule, the defendant is clearly entitled to costs as to the innuendoes which have been negatived. In Cox v. Thomason, 2 Cr. & J. 498, S. C. more fully, 2 Tyrwh. 411, there were several counts upon different sets of words, and a general plea of not guilty; and it was held that this plea raised several issues; and the jury having found for the defendant on some of the counts, the defend

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