were inspected and reported on by the diocesan surveyor, and, in pursuance of the Ecclesiastical Dilapidations Act 1871 (34 & 35 Vict. c. 43). the Archbishop of Canterbury made an order respecting the necessary repairs, the cost of which was estimated at 1741. 188., for which the personal representatives of the late incumbent were declared liable. Mr. Dangerfield collected the tithes which had accrued due in Mr. Brothers' lifetime, and under an order of the court dated 31st March 1875, paid £650 into court on account thereof, having been advised that he was liable to pay the cost of repairs out of moneys coming into his hands as sequestrator. The court was now asked to make an order that Dangerfield should pay into court 1397. 158. 3d., the amount certified to be due by him on paying the final amount as sequestrator, in order to decide the question of his liability for dilapidations. Mr. Brothers, who had taken the benefit of the Insolvent Act in 1853, died intestate, and it was stated that there were no assets to administer. Davey, Q.C. and Rigby for the plaintiff, in support of the summons. Chitty, Q.C. and W. W. Karslake for the sequestrator and for Mr. Perry, the new incumbent. The condition on which sequestrations are granted is that the sequestrator keeps the buildings in repair, and is liable for dilapidations. Sect. 20 of the Act of 1871 enacts that the dilapi dations are to be charged to the sequestrator in respect of the profits of the benefice. referred to: Hubbard v. Beckford, 1 Hagg. Cons. 307; Cripp's Laws of Church and Clergy, 322. They Langley, for the official assignee of Mr. Brothers, claimed the balance of the fund after payment of the persons entitled under the deed of assign ment. case. Sir GEORGE JESSEL,-The question I have to decide concerns the liability of the sequestrator in respect of the balance in his hands from the profits of a sequestered benefice for dilapidations reported after the incumbent's death. The sequestration issued many years ago, and remained in force to the incumbent's death, in Oct. 1873. The avoidance occurred subsequently to the commencement of the Ecclesiastical Dilapidations Act 1871, and that Act, therefore, applies to this The law, whatever it was previously to that Act, is remodelled by it. By sect. 53 it is declared that no sum shall be recoverable for dilapidations in respect of any benefice becoming vacant after the commencement of the Act and to which the Act shall apply, unless the claim for such sum be founded on an order made under the provisions of the Act. Now the Act contains two distinct sets of provisions: the one, comprising ss. 12 to 24, provides for the inspection of buildings at times when a benefice is not vacant; the other, ss. 29 to 53, for the inspection of buildings on a vacancy. No inspection seems to have taken place of the buildings of this benefice in Mr. Brothers' lifetime; but after his death, that is, on the vacancy, an inspection took place, and the archbishop, according to sect. 34, made an order stating the repairs required to be done, and their cost, for which the late incumbent's executors and administrators were declared to be liable. [Q.B. DIV. It appears to me that the provisions of sect. 20, and the other sections of that Act, have no bearing on the present case, but that it falls under sect. 36, which casts the liability on the executors or administrators of the late incumbent. The result is that the sequestrator is under no liability for repairs. I must make an order in the terms of the summons, as I am of opinion that the sequestrator is not liable for the dilapidations, and is not entitled to have the amount deducted from the profits of the benefice collected by him. Solicitors, Kingsford and Dorman for Hallett, Curry, and Furley, Ashford; Dangerfield and Blythe; A. S. Twyford. QUEEN'S BENCH DIVISION. Reported by M. W. MCKELLAR, J. M. LELY, and R. H. AMPHLETT, Esqrs., Barristers-at-Law. Monday, Jan. 17, 1876. REG. v. RIPPON. Quo warranto-Local board-Election to casual vacancy-11 & 12 Vict. c. 63. A member of a local board resigned more than a year before his time for going out of office, as At the next election, regulated by the board. which annually took place to fill the three va cancies which occurred by rotation, notice was given that four candidates would be appointed; but no explanation of the fourth vacancy was pub lished, nor was any distinction made either in the notice or at the election between the candidates for the different vacancies. After the election, the board selected that one who received the smallest number of votes of the four successful candidates to fill the casual vacancy. Held, upon a quo warranto, that there was no authority before the Public Health Act 1875, for thus filling up a casual vacancy; and that the election was void. THIS was a rule to show cause why an information in the nature of a quo warranto should not be exhibited against the four defendants, Jabez Rippon and three others, for exercising the office of members of the Local Board of Newbold-cumDunston, in the county of Derby, on grounds therein sated. On 26th Feb. 1875, a member of the board, whose period of office would not expire according to the arrangement of the board until March 1876, resigned; and in consequence there were four vacancies to be filled up in March 1875. On the 6th March 1875, the chairman of the board duly published a notice of the election, containing the particulars thereof required by sect. 23 of the Public Health Act 1848 (11 & 12 Vict. c. 63). He stated in the said notice that the number of persons to be elected was four, but made no reference to the cause of the fourth vacancy, nor explained that there was any distinction in the periods for which the successful candidates would serve. The election was held in the same manner as if all the vacancies had occurred by rotation. Eleven candidates were nominated, and the four defendants obtained the highest number of certified votes. They were declared by the chairman to be duly elected; and the local board subsequently selected the defendant Rippon, who had received the smallest number of votes of the four successful candidates, to fill the casual vacancy occasioned by resignation. The other three defendants, who received the highest number of votes, were at the same time selected to fill the vacancies caused by rotation. The objection upon which the relator relied was stated in the rule to be that there were only three vacancies for the term of office for which the election was held. Cave, Q.C. and Foulkes showed cause.-If this objection be valid, there must have been two separate elections, for which there is no provision in the Public Health Acts. By sect. 13 of the Act of 1848, with respect to all districts, "And the first election for any district or part of a district shall take place on a day to be appointed by order of Her Majesty in Council or by Parliament (as the cases may require); and one-third of the number elected for the whole or any part or parts of a district respectively shall go out of office on such day in each year subsequently to that of the first election as shall be appointed by such order in council or provisional order as aforesaid (as the case may require); and the order in which the persons first elected shall go out of office shall be regulated by each local board. . . . But no person elected shall in any case continuously remain in office for more than three years; and on the days appointed for going out of office a number of persons shall be elected equal to the number of those 30 going out, and so many others as may be necessary to complete the full number of the local board of health in respect of which the election is to be made." This last paragraph is perfectly consistent with what has been adopted as the practice in this case; and although there is no express provision for filling up vacancies caused by resignation, they are clearly contemplated in the statute. In the 14th section such vacancies are twice alluded to, and one of its paragraphs is, "And in the event of any vacancy in the number of persons elected by death, resignation, or otherwise, between the times appointed for election as aforesaid, or if at any time the said local board be without its full number of members, the remaining members shall continue and be as competent to act until the time appointed for election, or until the full number is selected or elected (as the case may require), as if no vacancy had occurred." There is no suggestion of any separate elections for any different kind of vacancies in the sections relating to notice, nomination, or election; e.g., sects. 23, 24, or 27. Where there is no express provision with respect to these elections, it has been held that the board must do its best to constitute itself: (Howitt v. Munfull, 6 E. & B. 736.) That in this case the board did its best, is clear from the fact that it obeyed by anticipation the provisions of the Public Health Act which [Q.B. DIV. has since been passed; by 38 & 39 Vict. c. 55, schedule 2, rule 65, this very course is prescribed in the case of a casual vacancy being filled up at an annual election. This new Act consolidates without altering the old law, so that it may be said retrospectively to justify the proceedings of the board in this case. Although 21 & 22 Vict. c. 98, s. 24, sub-sect. 7, provides one plan of filling casual vacancies by choice of the board within a month, that is merely permissive; and the board in this case has clearly followed the intentions of the statute. Bigham appeared for the relator to support the rule, but was not heard. COCKBURN, C. J.-I think the objection to this election is fatal. I do not say how many elections ought to have been held, but it is clear to me that a distinction ought somehow to have been made between the casual and the regular vacancies. In default of express regulation possibly this could only have been secured by separate elections. There was no provision in any of the Acts in force at the time of this vacancy for filling it by election; and although the Act of 1848 alludes to vacancies of the kind, it provides no means for filling them at all. The Legislature has now made good this omission by specific legislation; but previously to the Act of last year the voters should have had an opportunity for distinguishing the kinds of vacancies for which they supported their candidates. There was no such opportunity given them here, and I am therefore of opinion that the election was void. MELLOR, J.-I am of the same opinion. I do not see why all the four new members should not have been elected at the same time; but at all events, there should have been some notice as to the difference in the offices for which the votes were to be given. There was at that time no means of fixing which of the elected candidates should fill the casual vacancy, and the voters were not consulted on the subject. I do not consider this can be a valid election. FIELD, J.-I am of the same opinion. Rule absolute. Solicitors for relator, Stevens and Co., for W. T. Jones, Chesterfield. Solicitors for defendants, Palmer Bull and Fry, for C. S. B. Busby, Chesterfield. Wednesday, Jan. 19, 1876. Highway-Indictment for non-repair-Highway nok By 5 & 6 Will. 4, c. 50, s. 95, if, on the hearing of any summons respecting the repair of any highway, the duty or obligation of such repairs is denied by the surveyor on behalf of the inhabitants, the justices may direct an indictment, and the judge of assize before whom the indictment is tried may direct the costs to be paid by the parish. Upon the trial of an indictment directed under this section, it was found that the common highway for horses, carts, and carriages, as described in Held, that the justices had no jurisdiction to make their order upon this summons; and that therefore an order for costs made by the judge of assize at the trial must be quashed. A RULE nisi had been obtained calling upon Robert Lee, the prosecutor, to show cause why a writ of certiorari should not issue to remove into the High Court of Justice a certain order of assize made by Field, J., at York, on 3rd Aug. upon an indictment against the inhabitants of the township of Ellerton, for the non-repair of a certain highway in the said township, ordering the costs of the prosecution to be paid out of the rates and levied on the said township, in pursuance of 5 & 6 Will. 4, c. 50. By sect. 95 of that statute it is enacted "That if on the hearing of any such summons respecting the repair of any highway, the duty or obligation of such repairs is denied by the surveyor on behalf of the inhabitants of the parish, or by any other party charged therewith, it shall then be lawful for such justices, and they are hereby required to direct a bill of indictment to be preferred and the necessary witnesses in support thereof to be subpoenaed at the next assizes to be holden in and for the said county, or at the next general quarter sessions of the peace for the county, riding, division, or place wherein such highway shall be, against the inhabitants of the parish or the party to be named in such order, for suffering and permitting the said highway to be out of repair; and the costs of such prosecution shall be directed by the judge of assize before whom the said indictment is tried or by the justices of such quarter sessions, to be paid out of the rate made and levied in pursuance of this Act in the parish in which such highway shall be situate; provided, nevertheless, that it shall be lawful for the party against whom such indictment shall be so preferred at the quarter sessions aforesaid, to remove such indictment by certiorari or otherwise into his Majesty's Court of King's Bench." It appeared that on the 5th Aug. 1874 the said Robert Lee preferred an information before justices against the surveyors of highways of the township of Ellerton alleging that part of a highway described as a common highway for horses, carts, and carriages, within the said township, was out of repair. At the hearing of the summons issued upon this information the surveyor of the township denied their liability to repair the highway, and the justices thereupon ordered an indictment to be preferred against the inhabitants of the township; an indictment was accordingly preferred before the grand jury at York at the assizes in March 1875. A true bill having been found, the indictment came on for trial before Field, J. at York, in Aug. 1875, when, the evidence being insufficient to support the allegation that the highway was a cart and carriage way, the learned judge so directed the jury. It was, however, not disputed at the trial that the highway was a public bridleway and footpath, and at the close of the case the learned judge, under the provisions of 14 & 15 Vict. c. 100, amended the indictment by striking out all the words having reference to a cart and carriage way, and upon the indictment, so amended, a verdict of guilty was recorded. Application was made on behalf of the prosecu [Q.B. DIV. tion to the judge for an order under the above sect. 95 of 5 & 6 Will. 4, c. 50 for payment of the costs, and he, considering himself bound to do so under the Act, made the order. It was sought to remove this order by certiorari for the purpose of quashing it. now At the hearing of the information before] the justices there appeared to have been no admission then made on the part of the inhabitants that the road was a highway of the limited character afterwards admitted at the trial; but their solicitor objected to the jurisdiction of the justices on the general ground that the highway was not a common highway repairable by the township. It seemed also that the information being for nonrepair of the road as a cart and carriage way, no special attention was called to the liability, whether admitted or otherwise, of the township to repair it as a bridle road. Maule, Q.C. and Wilberforce showed cause against the rule on behalf of the prosecutor.-The jurisdiction given to justices by the Highway Act 1835 in such a matter as this is now governed by 25 & 26 Vict. c. 61, by sect, 19 of which it is enacted that "When on the hearing of any summons respecting the repair of any highway the liability to repair is denied by the waywarden on behalf of his parish, or by any party charged therewith, the justices shall direct an indictment to be preferred at the next assizes or at the next quarter sessions for the county, &c., wherein such highway is situate, against the inhabitants of the parish or the party charged therewith for suffering the said highway to be out of repair." It has been held under that section that the jurisdiction of the justices is limited to admitted highways; and that justices have no jurisdiction to order an indictment to be preferred where it is bona fide denied by the parties charged that the road is a highway, and the liability to repair the road if it is a highway is not denied (Reg. v. Farrer, L. Rep. 1 Q. B. 558; Reg. v. Heanor, 6 Q. B. 745). Here, however, the liability was denied generally, and therefore the justices had jurisdiction to direct the indictment. The prosecution succeeded in establishing a highway, and the judge at the assizes was compelled by the statute to make the order for costs which is now in question. [MELLOR, J.-The justices did not direct an indictment for the repair of a limited highway, which was the only highway established by the verdict.] There is nothing in the words of the section to limit the order for costs to a successful indictment. The amendment was made in the indictment upon the authority of Reg. v. Sturge (3 E. & B. 734). Wills, Q.C. appeared to support the rule. COCKBURN, C.J.-We do not think it will be necessary in this case to call on Mr. Wills. The power of a judge to order the costs of a prosecution ordered by justices under sect. 95 of the General Highway Act must depend on whether the justices who made the order had jurisdiction to make it. Now, it seems upon examination of the statute, that they only have jurisdiction when the highway in question is found to be a highway. The order here, ac ordingly, proceeded on the assumption that this road was a general highway, for it was in respect of the non-repair of such a highway that the inhabitants of the parish indicted were charged. This assumption failed to be proved in fact at the trial. It was only proved that this was a special or limited highway, and the prosecution having failed in this respect, the jurisdiction of the justices to order the prosecution failed, and consequenly the judge had no power to make this order for costs. MELLOR, J.-I am of the same opinion. I think that the order was made by the justices, they assuming that the road in question was a highway; and the costs which a judge on the trial of the indictment is empowered to give are limited to the costs of such a prosecution as that which the justices had jurisdiction to order and did order. There is here no question as to the amendment of the indictment at the trial because that was done by consent of both sides in order that it might accord with what was actually proved; but as the highway proved was not that ordered to be indicted, the costs of the prosecution cannot be ordered. FIELD, J.-I am of the same opinion. I made the order at the trial reluctantly, because I thought I was compelled by the terms of the statute to do so. But now, on further consideration, and after hearing the argument of the case, I am satisfied that my Lord and my brother Mellor are right, and that in this and other cases where the prosecution fail in establishing that which is the foundation of the jurisdiction of the justices, substantial justice will be done by a construction of the section adversely to their right to claim an order for costs. The costs of this case were really those incurred by the prosecution in endeavouring to establish the cart way, in which endeavour they entirely failed. Rule absolute. Solicitors for the prosecution, Learoyd and Co., for Bantoft, Selby. Solicitors for the defence, Williamson, Hill, and Co., for England and Son, Howden. Jan. 20 and Feb. 25, 1876. REG. v. COLLINS. Quo warranto-Scrutiny of votes-Certificate of chairman-Titles of votes-Mistakes in counting -11 & 12 Vict. c. 63. s. 27. At an election of members of a local board of health, the chairman certified under 11 & 12 Vict. c. 63, 8. 27, that seven persons, of whom the defendant had the smallest number of votes, were elected. The relator, who was a candidate, had three votes less than the defendant. Upon a scrutiny before a judge of assize without a jury it appeared that, by correction of mistakes in counting, the votes for the relator and the defendant were equal; that one vote for the relator had been mislaid and not counted at all; and that two votes for the relator which the chairman had found to be valid, no objection having at that time been made to them, ought not to have been received; one being written by some other person than the voter, contrary to sect. 25; the other being that of a person who had not been rated or paid rates, contrary to sect. 20: Held by Mellor and Field, JJ., (Blackburn, J. dissenting), that by quo warranto only the mistakes in a chairman's mechanical acts, and not the titles of votes, can be rectified; and that LQ.B. DIV. therefore the relator was ahead of the defendant, and was duly elected. THIS was a quo warranto, the circumstances of which are fully described in the following judg ment of Blackburn, J., before whom the case was tried at the Dorchester Summer Assizes 1875. The verdict was entered for the defendant, leave being reserved to the relator to move to enter the verdict for him. The election of the members of the Local Board of Health for the Isle of Portland, the validity of which was questioned, took place in May 1874. The rule for the quo warranto was made absolute on the 28th Jan. 1875. (Reported 23 W. R. 325). The rule nisi in pursuance of the leave reserved at the trial was granted on the 4th Nov. 1875 upon the motion of Kingdon, Q.C. for the relator who relied upon the authority of Reg. v. Cross, 19 L. T. Rep. N. S. 35; Reg. v. Diplock, L. Rep. 4 Q. B. 549. The following is the 27th section of the Public Health Act 1848, (11 & 12 Vict. c. 63): That the chairman shall, on the day immediately following the day of the election and on as many days immediately succeeding as may be necessary attend at the office of the local board of health, and ascertain the validity of the votes by an examination of the rate books and such other books and documents as he may think necessary, and by examining such persons as he may see fit; and he shall cast up such of the votes as he shall find to be valid and to have been duly given collected or received, and ascertain the number of such votes for each candidate. And the candidates to the number to be elected who being duly qualified shall have obtained the greatest number of votes shall be deemed to be elected and shall be certified as such by the said chairman under his hand; and to each person so elected the said chairman shall send or deliver notice of such election; and the said chairman shall also cause to be made a list containing the names of the candidates together with (in case of a contest) the number of votes given for each and the names of the persons elected; and shall sign and certify the same and shall deliver such list together with the nomination and voting paper which he shall have received to the local board of health at their first or next meeting (as the case may be), who shall cause the same to be deposited in their office, and the same shall during office hours thereat be kept open to public inspection, together with all other documents relating to the election, for six months after the election shall have taken place, without fee or reward; and the said chairman shall cause such lists to be printed and copies thereof to be affixed at the usual places for affixing notices of parochial business within the parts for which the election shall have been made. Jan. 20.-Cole, Q.C. and Pinder on behalf of the defendant now showed cause against the rule. Kingdon, Q.C. and A. Collins were heard in support.-The arguments and the authorities discussed are fully stated in the following written judgments of the court. Cur. adv. vult. Feb. 25.-BLACKBURN, J.-This was a quo warranto on the relation of Andrews calling on the defendant to show by what title he acted as a member of a local board of health. The plea was that the defendant was duly elected and this was traversed. The issue came on for trial before me and a jury at the last assizes at Dorchester. As the case involved a scrutiny it was agreed that the jury should be dispensed with and that what I found as facts were to be considered as found by the jury. It appeared that there were seven vacancies and nine candidates. The voting papers were duly collected and received and the chairman proceeded on the proper day to ascertain the number of valid votes for each candidate in pursuance of the 11 & 12 Vict. c. 63, s. 27. The nine candidates consisted of six persons whose election was not disputed, and of Collins, Andrews, and Coombe. The chairman certified that, the six others and Collins were duly elected. He made out a list, containing the names of the candidates and the number of votes given for each and the names of the persons elected, which he signed and certified; and he delivered it along with the voting and nomination papers to the local board who, in pursuance of the section, deposited this list together with the voting papers for public inspection as required by the section. The chairman did what, though not in terms required by the Act, was fair. He not merely put down the number of votes given for each candidate, but also made out and kept a list, by reference to the numbers of the voting papers of the voters whom he had reckoned as voting for each candidate, so that there was no difficulty in fact in ascertaining how he made out the majority. According to this list the six persons whose elections were not disputed had most votes; Collins had 382 votes, Andrews and Combe, 379 votes each. If the certificate was conclusive, Collins was entitled to the verdict. Subject to objections on both sides, evidence was received of three classes of mistakes. It was agreed that no inquiry should be made as to Coombes's votes, and that if Collins had a majority over Andrews, the verdict should be for him. The counsel for the relator proceeded to prove what may be called clerical errors by showing that votes which by the voting papers appeared not to have been given for Collins had been, as appeared by the list, by mistake put down for him, and that votes which as it appeared by the voting papers had been given for Andrews, bad, as appeared by the list, not been put down for him but for some one else. The counsel for the defendant showed that there were similar blunders made with respect to Andrews. On the balance of these mistakes Andrews had three in his favour, showing an equality of votes between him and Collins. The counsel for the relator then showed a second kind of mistake. One voting paper had been mislaid and was not reckoned at all. It was found next day in the room, and proved to be a vote in favour of Andrews. This, if properly received, put Andrews in a majority of one over Collins. The counsel for the defendant then gave evidence of a third kind of mistake. He proved that one of the voting papers received, and, as it appeared by the list, reckoned for Andrews, was a vote by a person who could not write, and was wholly written and signed in his name by another person. It was not alleged that there was any intended fraud in this, but the vote was bad under sect. 25. Another vote which also was reckoned for Andrews was that of a person who had not been rated nor paid rates, and this vote was bad under sect. 20. The chairman had not had his attention called to either of these two last votes, and consequently did not examine any persons as to the genuineness of the signatures in the first case, or the rate books as to the last, or in point of fact come to any conclusion as to the validity of those votes Lefore receiving them: though if his attention [Q.B. DIV had been called to them he had power, under sect. 27, to have investigated the matter. If evidence of this kind of mistake was admissible, Collins was again in a majority over Andrews. No further evidence was offered on either side. The counsel for the defendant contended that the certificate of the chairman was conclusive, and that no evidence of any mistake on his part was admissible; but that, if evidence of any one kind of mistake could be shown, all three sorts might be shown. The counsel for the relator contended that the certificate might be impeached by showing any errors in the mechanical process of reckoning and casting up the votes; but that no error could be shown in receiving votes as valid, as to which he might have made a judicial, or, at least, quasi judicial investigation, though an ex parte one. I directed a verdict for the defendant, reserving to the prosecutors leave to move with some arrangements as to appealing, which it is not necessary now to mention. A rule was ob tained, which was argued before my brothers Mellor, Field, and myself, when the same points which were made at the trial were again stated. The case of Reg. v. Cross (19 L. T. Rep. Ö. S. 35) was cited. In that case the election of the defendant was questioned on the ground that the election was held before a person who was not the chairman. The issue taken was like this, whether the defendant was duly elected. It was proved that the person who held the election was duly appointed as deputy to the chairman. Then the counsel for the relator said, that the defendant to prove his election must affirmatively prove that he had a majority of votes, and that the certificate was not even evidence of his being so. Lord Campbell very properly overruled this objection. In doing so, he is reported to have said that the language of this section made the certificate conclusive. It is very probable that he did use such language, but the point was not before him, and the case can hardly be considered as showing his deliberate opinion. At most, the opinion of Lord Campbell, was but a nisi prius decision, and as from the nature of the evidence, and the point really raised, it was not necessary for the decision of the case, it could not be reviewed in banc., and is therefore of less weight as an authority. It was decided in Reg. v. Backhouse (L. Rep. 2 Q.B. 16), that the duties of the chairman were so far of a judicial nature, that he could not delegate them, except in the manner allowed by the statute. And even if there was no decision to that effect, I should not entertain any doubt that such was the law. But it does not follow that his decision was final and incontrovertible. The duties of a mayor of a corporation acting as returning officer at the election of a councillor are to this extent judicial, Reg. v. Owens (2 E. & E. 86); Reg v. White (L. Rep. 2 Q. B. 557): yet his return may be questioned on quo warranto. The duties of the mayor and assessors revising the burgess list under 5 & 6 Will. c. 74, s. 18, are beyond doubt judicial. There have been several quo warrantos at least moved for to try the right to be on the bur gess roll (see R. v. Anderson, 2 Q. B. 740; Re Milner, 5 Q. B. 589), without any objection being raised on the ground that their decision was final. I do not find any reported case in which the burgess was actually ousted, but the objection lay on the surface, and, if it had been thought good, would surely have been taken. No doubt |