These are the provisions of the statutes material to the present question, which we have stated thus at length, because they appear to us to furnish very cogent inferences as to the right now in dispute. No one can read the clauses without being satisfied that, subject to the limitations specified, the Legislature has placed the whole control, as to the imposition and expenditure of the county rate, in the Court of Quarter Sessions. And with regard to the particular matter of publicity, they provide specifically for the preservation of the vouchers, and for their inspection by a particular class, the members namely of the Court which controls the expenditure; and provide also for information to be conveyed to the rate-payers in general, by the annual publication of the receipts and payments, in such a form as was deemed sufficient for the purpose.

This latter provision may perhaps throw some light upon the construction which the former ought to receive; but, looking at the former by itself, it is difficult to understand why a specific provision should have been made for the inspection by the justices without fee or reward, if by the common law the same right (and it is that same right which is now claimed) existed in favour of every rate-payer. It is remarkable, moreover, that, in the same statute, 12 Geo. II. c. 29, s. 14, respecting the repairs of public bridges, banks, &c., a similar provision is made for the preservation and deposit of contracts for the repairs; and, as to these, the purpose is declared to be the inspection, not only by the justices, but by "any person" "employed by any parish, township, or place, contributing to the purposes of this Act." The difference in the two clauses can hardly be conceived to have been unintentional.

It is also material to observe that the duty of preserving the vouchers appears to have been first created by stat. 12 Geo. II. c. 29. Upon examination of all the statutes recited in the preamble, no such enactment appears among them, though the provision for the absolute discharge of the treasurer, by the acquittance of the justices, is copied from one of them, 11 & 12 Will. III. c. 19, s. 2. Independently of the statute, we know of no direct obligation on the justices to preserve the vouchers of audited accounts, however prudent such a preservation might be : nor do we know of anything which should make it compulsory on 27

R.R. VOL. XLV.

REX

THE

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the clerk of the peace to receive such documents, and preserve them among the county records. If this be so, and the statute JUSTICES OF Which first directs their preservation, and place of deposit, defines also the purpose of such preservation, and the persons who are to have access to them, what right can others have to inspect them for other and undefined purposes?

SHIRE.

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We are of opinion, therefore, upon a review of the provisions of the statutes, that they raise a direct inference against the existence of any such right. It is fitting, however, to consider the weight of the argument independently of these provisions. It is alleged that these are public documents, and that every one having an interest in them has therefore a right to inspect them. It is not necessary to inquire whether these are, strictly speaking, public documents; and, though most of the cases cited on this point were examples of the exercise of a power by the Court to compel one of two litigating parties to make reasonable disclosures to the other, we are by no means disposed to narrow our own authority to enforce by mandamus the production of *every document of a public nature, in which any one of the King's subjects can prove himself to be interested. For such persons, indeed, every officer appointed by law to keep records ought to deem himself for that purpose a trustee. But the difficulty is to see that the present applicants have such an interest as brings them within the rule. During the argument, we enquired what interest in the applicants was relied on as entitling them to the inspection. In answer, it was conceded that the rate-payers had no direct interest in ascertaining the expenditure of the by-gone rate, because, even if discovered to be illegal, the monies paid by the treasurer could not be recovered from him; and it is obvious that they could not be recovered from the parties to whom they had been paid, nor from the individual justices who had sanctioned the payments. But it was said that, as the justices at Sessions were prohibited from imposing a new rate until three fourths of the former had been lawfully expended, the rate-payers were interested in ascertaining the nature of such expenditure, to enable them to oppose the imposition of a new rate. The answer to this is, that the ratepayers as such cannot by law interfere in the matter. Let it be assumed that the inspection prayed for should disclose an illegal

REX

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THE

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SHIRE.

expenditure of a former rate, or the fact that more than one fourth of the former rate still remained unexpended in the treasurer's hands, still no rate-payer, as such, could be heard in JUSTICES OF the Court of Quarter Sessions to object to the imposition of a new rate: Rex v. The Justices of Nottingham (1). The subject-matter is not one which the rate-payer can bring before the Court as a litigant; nor is he, as such, a member of the Court.

The utmost, therefore, that can be said on the ground of interest, is that the applicants have a rational curiosity to gratify by this inspection, or that they may thereby ascertain facts useful to them in advancing some ulterior measures in contemplation as to regulating county expenditure; but this is merely an interest in obtaining information on the general subject, and would furnish an equally good reason for permitting inspection of the records of any other county: there is not that direct and tangible interest, which is necessary to bring them within the rule on which the Court acts in granting inspection of public documents.

But it is contended that these vouchers are substantially parcel of the orders which relate to them. But what in truth is the form of the orders, and whether the vouchers are or are not by any reference or otherwise so incorporated with them as to become parcel of them, is not disclosed either in the writ or return. The applicants, prior to the date of the writ, had a full opportunity of inspecting the orders; it is therefore their fault. that we have not this information; the language of their own writ raises a presumption against them; and there is every reason to suppose that in truth the orders are perfect instruments without the vouchers.

Lastly, however, we are strongly pressed with the authority of Rex v. The Justices of Leicester (2), in which Lord TENTERDEN and this Court made a rule absolute in the very terms of the present. The great authority attached to that decision rendered it necessary for us to grant the writ, and see what return should be made, that the principles on which it rested might undergo the *most deliberate revision. We cannot adopt the argument urged at the Bar, by which that case was sought to be distinguished from this: (1) 3 Ad. & El. 500. (2) 4 B. & C. 891.

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[ *102 ]

REX v. THE

STAFFORD

SHIRE,

because, though the refusal of the justices there was too extensive, and the return therefore properly quashed, the Court obviously JUSTICES OF intended to decide the present question also. After much consideration, we think in that respect it cannot be supported. It is observable that, although the material arguments at the Bar against the mandamus received no answer from the other side, and no reason is stated for the judgment of the Court, yet it appears that no argument was permitted upon the return. Our brother LITTLEDALE, who was a member of the Court at the time, permits us to say that he disapproves of that case.

[ *103 ]

Upon the whole, we conclude that this return is sufficient in law. Much has been said upon the practical irresponsibility. which our decision may occasion as to the expenditure of the county rate by the justices. If this consequence really flowed from our refusal of the writ, that would be no reason with us for straining the law to prevent it: the law must be altered by the proper authority, if too much discretion is now vested in the Court of Quarter Sessions.

But in truth, considering the number of the magistracy in every county, the large attendance usual on the days of transacting the county business, that the Court in which it is transacted is an open Court, that all these accounts are there publicly considered, and an abstract of the whole expenditure afterwards publicly circulated, and that the law is most explicit as to the matters to which the county rate is applicable, it appears to us very unreasonable to apprehend any evil consequences *from holding that the magistrates are not compellable to grant to ratepayers generally this inspection. If any abuse exists, it can hardly be supposed that, among so many, no one magistrate will be found to bring the order before this Court; and the law has given already to him every advantage which the granting of a peremptory mandamus would afford to the present applicants.

On the other hand, no slight inconvenience might result from holding that, in every county, all its thousands of rate-payers, with no other interest, and without fee or reward, have a right to the inspection now contended for. Nor can we believe that such a power would have been given by doubtful implications.

We disclaim, however, the being influenced on either side by

these considerations, and have attended only to the legal principles which appear to us applicable, in pronouncing that the return is sufficient.

Judgment for the defendants.

REX

v.

THE JUSTICES OF STAFFORDSHIRE.

HAYWARD v. PHILLIPS.

(6 Adol. & Ellis, 119-129; S. C. 1 N. & P. 288; W. W. & D. 1; 1 Jur. 102; 6 L. J. (N. S.) K. B. 110.)

Declaration in covenant upon an indenture, alleged one breach by non-payment of rent, and three by not repairing, &c. Pleas; first, that the indenture was obtained by fraud; and, next, performance as to the several breaches. The plaintiff traversed the fraud, and joined issue on the pleas of performance, except that there was an omission to perfect the issue on the fourth plea. By order of Nisi Prius, it was directed that the jury should give a verdict for the plaintiff on the first issue, and damages assessed on the first breach at 107., and costs 408., subject to the award of an arbitrator, to whom the cause and all matters in difference were referred, to order and determine what he should think fit to be done by the parties, respecting the matters in dispute, with liberty for him to amend the record, and to direct what should be done between the parties: the costs of the cause to abide the event of the award, and the costs of the reference and award to be in the arbitrator's discretion. The award recited that the only matter in difference, besides the cause, was a claim of 201. rent; and the arbitrator awarded that the verdict on the first issue, and the assessment of 107. on the first breach, should stand, and found for the plaintiff on the three other issues, and assessed damages upon each, directing the verdict to be entered for the aggregate of the damages on the four breaches; he also directed that the defendant should pay 207. for rent, and that the plaintiff should expend 1937. 6s. in repairs, for which purpose he should have power to enter on the premises; and that the defendant should pay the costs of the reference and award:

Held, that the award was entirely bad, the arbitrator having no power to increase the verdict, and, therefore, not having determined the matter in dispute.

Held, also, that the defendant did not waive the objection to the award, by permitting the plaintiff to enter and perform the repairs.

Nor by attending the taxation of costs in Hilary vacation.

Nor by applying to the plaintiff in Hilary vacation for delay of execution, which application was acceded to by the plaintiff on terms which the defendant did not accept.

The rule to set aside the award was drawn up on reading "the affidavit of the defendant, and the paper writing thereto annexed; " and the affidavit in support of the rule stated facts to show that the paper writing was a copy of the award: Held sufficient.

SIR W. W. FOLLETT had obtained a rule in Easter Term, 1836, drawn up on reading "the affidavit of the defendant, and

1837.

Jan. 12.

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