prosecutor, namely, R. L., of, &c., the sum of 4s. each for his costs in this behalf, and if the said several sums be not paid on or before the 10th of November instant, we adjudge each of them, the said J. Cridland, J. Bannister, W. Wilton, and J. Saunders, so making default, to be imprisoned in, &c. for the space of one month, unless the said several sums and the costs and charges of conveying each of them, the said J. Cridland, J. Bannister, W. Wilton, and J. Saunders, so making default, to the said common gaol, shall be sooner paid. Given under our hands," &c.

It appeared from the affidavits that the land upon which the alleged trespass was committed, was part of the property in dispute, between Capt. Swinfen, who claimed as heir-at-law of the testator, and Patience Swinfen, who was in possession under the will. On the trial of an issue directed by the Master of the Rolls, a compromise was come to by the counsel on each side, according to which the estate was to be conveyed by Patience Swinfen to Capt. Swinfen, subject to certain conditions. This compromise was repudiated by Patience Swinfen, as having been made without her knowledge or consent, and at the time of the conviction, proceedings were pending to enforce the compromise. The information, which was upon the first clause in sect. 3. of statute 1 & 2 Will. 4. c. 32, was against the four defendants and a person named Bacon, but the evidence failing as to Bacon, the other four were convicted. The defendants stated before the Justices that they had authority to enter upon the land in search of game from Capt. Swinfen, who was owner of the land, and not being at that moment prepared to prove that fact, they asked for an adjournment, which was refused.

Kennedy and Gray shewed cause (June 3 and 6). First, the description of the offence in the conviction is sufficient. It follows the words of the section, and the conviction is drawn up in the form given in the schedule to 11 & 12 Vict. c. 43.The Queen v. Hyde (1), In re Allison (2). Secondly, as to the costs; the power depends on section 23. of the 11 & 12 Vict.

(1) 21 Law J. Rep. (N.s.) M.C. 94.

(2) 10 Exch. Rep. 561; s. c. 24 Law J. Rep. (N.S.) M.C. 73.

c. 43. There is no dispute as to the first amount of costs, but the objection is, that the conviction makes each defendant liable for the costs of all. But by section 28. "in all cases in which any person shall be imprisoned as aforesaid, for non-payment of any penalty or other sum, he may pay or cause to be paid to the keeper of the prison in which he shall be so imprisoned, the sum in the warrant of commitment mentioned, together with the amount of costs, charges, and expenses (if any) therein also mentioned, and the said keeper shall receive the same, and shall thereupon discharge such person." It must be implied by necessary intendment that each person convicted is only to pay the costs incurred by each. The words are equivalent to "until payment by each of the sum in respect of which he has made default." The defendants might have been summoned separately and at different times; there is nothing which points at any joint act. Here, each person who trespasses was liable to a separate penalty under the 1 & 2 Will. 4. c. 32. s. 30. Before the passing of the statute an action against one would have been a bar to an action against the others. The penalty of 21. is not given by way of compensation, but by way of punishment; no part of it goes to the owner of the land. Looking to the amount of the penalty, there is no reason to suppose that the legislature did not intend in each case the full penalty to be paid by each.

[CROMPTON, J.-Then can four persons be joined in one conviction ?]

It may be informal to do so, but it is matter of form only. In such cases the certiorari is taken away by section 25. They may be brought up by one summons. The conviction treats each as a separate offender; and the effect is, that each has not so much to pay for the costs of the conviction as if they had been convicted separately. They cited The Kingv. Hube (3), The Queen v. Dean (4), and The King v. Clark (5). Morgan v. Brown (6) was an

action arising out of an information for an assault, which is an offence several in its nature. As to the claim of title, it is provided in section 30, "that any person charged with any such trespass shall be at liberty to prove by way of defence any matter which would have been a defence to an action at law for such trespass." The words of the proviso intimate that the Magistrates are to hear the evidence in support of the claim. In this case no such evidence was offered. This point is not mentioned in the rule for the certiorari.

[LORD CAMPBELL, C.J.—It is open upon the face of the conviction.]

No admissible evidence was tendered which was rejected. This Court cannot decide whether the Justices were right or wrong in refusing the adjournment which was applied for. The claim of title was not judicially brought before the Justices.

[COLERIDGE, J.-Is the party bound to prove his right before the Justices because the act enables him to do so?]

The party must shew that he was not committing a trespass.

[ERLE, J.-The word " trespass " in a criminal proceeding implies mens rea.]

Further, by sec. 7. of the stat. 12 & 13 Vict. c. 45, this Court has the power of amending a judgment of Justices brought up by certiorari, if it shall be shewn to the satisfaction of the Court that sufficient grounds were in proof before the Justices to have authorized the drawing up thereof free from the omission or mistake.

Pashley, contrà.-First, a joint conviction of four persons for an offence under the 1st section of stat. 1 & 2 Will. 4. c. 32. is bad. By including several in one information they are prevented from being witnesses in support of any matter of title or

excuse.

[LORD CAMPBELL, C.J.-Stat. 11 & 12 Vict. c. 43. s. 10. points rather against charging more than one offence against the same person. In case of a conspiracy the parties may be all charged jointly, or each may be charged separately.]

[Kennedy.-By the proviso to the 1st section of stat. 11 & 12 Vict. c. 43. no objection shall be allowed to any information for any alleged defect therein in substance or in form, or for any variance between the information and the evidence; and if such

variance was calculated to mislead the party, the Justice may adjourn the hearing. The Justices ought to have amended it.]

It would have been a strong exercise of the power given by that section to amend by making four informations out of one, but the power was not exercised. The summons does not follow the words of the statute. Section 34. of stat. 1 & 2 Will. 4. c. 32. defines what the daytime mentioned in sec. 34. creating the offence is, and the conviction ought to shew that the offence was committed in that statutory daytime.

[LORD CAMPBELL, C.J.-Would not the daytime mentioned in the conviction be presumed to be that which is statutory ?]

Secondly, according to the conviction the length of the imprisonment is to depend on certain contingencies. Suppose all but one are willing to suffer the imprisonment, how can he obtain his release?

LORD CAMPBELL, C.J.-I am of opinion that on this last objection the conviction is bad, and must be quashed. It adjudicates "each of them, the said John Cridland (naming them) so making default to be imprisoned" for one month, "unless the said several sums, and the costs and charges of conveying each of them, the said John Cridland (naming them) so making default to the said common gaol be sooner paid." If it had followed the directions in sec. 23. of stat. 11 & 12 Vict. c. 43. no harm would have followed, and Mr. Kennedy is fully justified in the observation that it would then have been only an expression of what the law under the circumstances would have implied. But if this conviction were acted upon, it would render the defendants liable to be imprisoned, when the law would not justify the imprisonment; for the language clearly implies that each defendant. is to be imprisoned until he has paid the penalty and the expense of conveying to prison not only himself, but the other persons convicted. Therefore, if one of them pays his own penalty and costs, he would still be imprisoned until the costs of conveying all to gaol had been paid; that is the plain and grammatical meaning of the words, and it is a departure from the form prescribed in the schedule to stat. 11 & 12 Vict. c. 43, which most anxiously and properly points out the amount of the

costs for non-payment of which the party is to be detained in prison. The statute has not rendered all the defendants liable to be imprisoned, until the costs of conveying all to gaol have been paid, and therefore this conviction adjudicates an unlawful imprisonment, and cannot be maintained. I think this is not a case in which we should exercise the discretionary power of amendment under section 7. of statute 11 & 12 Vict. c. 45. It is not necessary to give an opinion on the other point; but, according to my impression, the Justices did not act properly in proceeding, when there was laid before them a bona fide claim of property. No evidence was offered, but a bona fide claim was made; and where such a claim is put forward, I think the Magistrates have no jurisdiction, and ought not to convict.

COLERIDGE, J.-Each defendant was only answerable for his own default. Imprisonment is not a primary punishment, but it follows, under sec. 38, on non-payment of the sums of money awarded to be paid under sec. 30; and stat. 11 & 12 Vict. c. 43. s. 23. makes the imprisonment continue until the penalty, and also the costs and charges of conveying the party to prison, have been paid. The natural meaning of the words, and the good sense of the thing itself, are, that the party is to go to prison as a mode of enforcing payment. The time of imprisonment is limited, and the party is at all events to be free as soon as those sums are paid. In the case of a joint offence, the statute might have imposed, as the conditions of release, the payment of costs in respect of all the persons convicted; but that would hardly have been a reasonable provision, because the expense of conveying one of them might be more than the expense of conveying another, and one might be able to pay the costs of conveying himself to prison and not the expense of conveying the rest.

If

the conviction is so worded as to impose a larger obligation than is imposed by the statute, it is bad; also, if the gaoler, trying to give a proper meaning to the words, would read them as requiring the party to pay more than the statute required, the conviction is bad. I should say that the words "costs and charges of conveying each of them, the said J. Cridland (naming

them) so making default" would be the proper language to use, if it was intended to impose the larger obligation on each party. Without saying whether we might get at a different meaning, which it would be difficult to do, I am of opinion that the conviction is bad. It is unnecessary to pronounce an absolute opinion upon the other graver matter; but it may be useful now to state, that apart from the particular words of sect 30. of stat. 1 & 2 Will. 4. c. 32, where a bona fide claim, as in this case, is laid before Magistrates their jurisdiction ceases. Sec. 30. of stat. 1 & 2 Will. 4. c. 32. introduces a very singular provision :-" Provided always, that any person charged with any such trespass shall be at liberty to prove, by way of defence, any matter which would have been a defence to an action at law for such trespass." The beginning of the enactment relates to charging a person with a trespass. The proviso has reference to the previous words. It enables the Magistrates to go into evidence of any matter, which would have been a defence to an action at law; but it by no means follows that the Magistrates can, against the will of the person charged, try that question. On the contrary, the words giving an option to the person charged with the trespass are pregnant with the conclusion, that the question of title cannot be disposed of against his will. I throw this out for the guidance of Magistrates.

ERLE, J.-I am of opinion that the conviction ought to be quashed for excess of jurisdiction. Four persons have been included in one conviction, and the power given to the Magistrates is to imprison until the penalty and the costs have been paid. The Magistrates have no power to add anything further; but by this conviction it is ordered that each of the parties convicted shall be imprisoned further for one month, unless the said several sums, and the costs and charges of conveying each of them to the gaol, shall be sooner paid. It makes one of the four surety for the others, and imposes a duty on the gaoler to imprison until the costs and charges of conveying them all to prison have been paid. The conviction might have been amended by guessing or conjecturing that no Magistrate would have

intended such a consequence; but the power of amendment is discretionary, and I think ought not to be exercised in this case. On the other ground which has been alleged, I think, if the case was heard out, it would be found that the Justices had no jurisdiction to convict in this case. On the first cursory reading of section 30. of statute 1 & 2 Will. 4. c. 32, it imposes the duty to try, and it has been contended that if the words are taken in their literal and evident sense, that is the proper construction. But I strongly incline to the opinnion that the statute authorizes and calls upon the Magistrates to try whether the party accused entertained an honest belief that he had a claim of right, and if he had an honest claim of right, it would be a defence in a civil action of trespass. And in criminal proceedings there are old authorities, as in The Queen v. Burnaby (7); the dicta of Powell, J. and Holt, C.J., that in matters of summary proceeding, when a party charged has an honest claim of title, the proper course is to dismiss the information. The question in that case arose in a curious way. A conviction for cutting trees was removed by certiorari into this court, and it was proposed to put in a plea to the conviction, suggesting a title in the defendant; and Powell, J., who, with two other puisne Justices, was of opinion that the plea ought not to be allowed, was also clearly of opinion that the right of the Justices to convict was at an end, and said, "If they had not jurisdiction, and I take it, they have not where property is in question, then an action lies against the maker and him that executes the conviction." Holt, C.J., who was of opinion that the plea ought to be allowed, said, "For now this conviction is come hither, no prohibition can go. Whereas, upon putting in such a suggestion as this while the conviction remained below, the parties might have a prohibition after conviction to stay the Justices from proceeding upon it; for without doubt, if the defendant had but a colour of title, the Justices of Peace had no jurisdiction in the cause." It was a datum in the minds of those eminent Judges that bona fides in the party charged put an end to the jurisdiction of the Jus

(7) 2 Ld. Raym. 900.

tices. In this case, at all events, the Justices ought to have dismissed the information, and allowed the title to be tried by the ordinary tribunals.

CROMPTON, J.-We are not to be supposed to agree that, under section 10. of Jervis's Act, 11 & 12 Vict. c. 43, which enacts that "every such information shall be for one offence only, and not for two or more offences," two offenders can be joined in one conviction. But it is clear, on reading this conviction, that each party convicted is ordered to be imprisoned for a longer period than is authorized by law; no man being bound to pay the charges of conveying another person convicted with him to prison. We might guess that the Justices did not intend what is here expressed; but I am not sure of that. At any rate, I cannot read the conviction as if the word "respectively" were in it, which is the only way to cure it. Therefore the conviction is bad. Upon the second and more important question, whether when there is a bona fide claim of right the Magistrates have jurisdiction to go on and inquire into the title, against the will of the party charged with the trespass, according to the old authorities, and the · old principle of law which is supposed to be included in all these enactments giving jurisdiction, the law is, that after a boná fide and not a colourable claim of right, the jurisdiction ceases. In Paley on Convictions, p. 41, 4th ed., by Macnamara, it is said, "Where property or title is in question, the jurisdiction of Justices of the Peace to hear and determine in a summary manner is ousted, and their hands tied from interfering, though the facts be such as they have otherwise authority to take cognizance of." He mentions it as not arising from legislative enactment, but as a rule applicable to the summary mode of trial in general. I cannot think that the legislature, in carefully providing in section 30. that parties charged under that act should have as a defence any matter which would be a defence to an action, meant to abrogate the great prinsiple of law, that a bona fide claim of right chall be sufficient to oust the jurisdiction of the Justices. We have inquired on affidavit in county court cases whether the parties did really set up a claim of title.

Therefore, I am of opinion that the Magistrates had no jurisdiction to convict in this case, and the conviction must be quashed. Conviction quashed.

1857. July 4.

In the matter of THE OXFORD

UNIVERSITY AND THE CITY
OF OXFORD POOR-RATE.

Poor-Rate, Exemption from-University of Oxford Occupation for Public Purposes-Liability for Individual Occupation -Rateability of Colleges.

The University of Oxford is exempt from liability to be rated to the relief of the poor in respect of the occupation of the Bodleian Library, the Divinity and other Schools, the Convocation House, the Old Convocation House and Law School, the Clarendon Buildings, and the University Galleries, such occupation being necessary for the public purposes for which the University was erected, namely, the advancement of national religion and learning, and appearing not to be used for any quasi private purpose inconsistent with the public purposes of the University.

The same exemption applies to the parts of the Sheldonian Theatre, the Ashmolean Museum, and the Taylor Institution used for the ordinary purposes of the University; but not to a cellar under the Theatre which is used by an individual as a place of deposit for his books, though no rent be paid to the University; nor to the lower part of the building containing the Ashmolean Museum, which is fitted up and used as a residence by the reader in mineralogy; nor to so much of the Taylor Institution as is used as a residence for the librarian, not necessarily, but for his own convenience.

The University is also exempt in respect of the Botanic Garden, but this exemption does not apply to the residences of the Professor of Botany, the porter, and the gardener.

The colleges are liable to be rated in respect of the occupation of college chapels and college libraries.

This was a SPECIAL CASE stated for the opinion of this Court under the 17 & 18 Vict. c. ccxix.

NEW SERIES, XXVII.—MAG. CAS.

The buildings and lands hereinafter mentioned form parts of the said Laiversity, and are situate within one or other of the parishes of the Oxford Poor-Law Union, and, with the exception of the colleges, chapels and libraries, they are the property of the University. Members of the University as such use the buildings and land as hereinafter specifically mentioned. Members of the University pay certain fees annually some also at matriculation before examination and on each graduation. The monies so levied are now applied to the maintenance of the police, the keeping up of the public walks in and round the city of Oxford, the defence of property, the extinction of fire, the Bodleian Library (except as hereinafter mentioned), and the payment of its officers. The University and colleges claim all the property above mentioned as not subject or liable to rates under any of the poorlaw statutes. The guardians of the poor of the parishes, on the other hand, contend that the University or colleges occupy most of the buildings and land by their servants or their furniture or books, and all of them by their scholars and members, and that they are, therefore, occupiers of them and rateable in respect of them, under or by virtue of the statute 43 Eliz. c. 2, and the other poor-law statutes. enable the Court to judge whether the said University and colleges are rateable to the poor or exempted from rates in respect of the said several buildings, the following account of them is here given.

To

The Bodleian Library.-The library known under this title was first founded by Humphry, Duke of Gloucester, 1480, on that part of the present building which is now the Divinity School. Subsequently becoming very much decayed it was restored and enlarged by Sir Thomas Bodley, knight, from whom it derived its present name, and was re-opened in 1683. Very soon after this the quadrangular part of the building known as "The Schools" was erected to the eastward of the original library; and the present library consists of certain rooms, all under one and the same continuous roof, being the upper stories of the Schools quadrangle, with one room on the ground-floor in the same quadrangle, and also the room over the Divinity School

F