admitted, on the authority of Bateman v. Bluck (a), that it might be a highway without being a thoroughfare), the title to land was in question and therefore the jurisdiction of the justices was ousted; and the only question submitted to the Court which it is necessary to report was, Whether, under the circumstances, the justices had jurisdiction to try the question whether the road was a highway or not. H. Matthews, for the respondent.-This order was made under sect. 73 of stat. 5 & 6 W. 4. c. 50., by which it is enacted "That if any timber, stone, hay, straw, dung, manure, lime, soil, ashes, rubbish, or other matter or thing whatsoever shall be laid upon any highway so as to be a nuisance, and shall not, after notice given by the surveyor," &c., " be forthwith removed, it shall and may be lawful for the surveyor," &c., "by order in writing from any one justice, to clear the said highway by removing the said stone," &c., "and to dispose of the same," &c., "Provided nevertheless, that if any soil, ashes, or rubbish shall be laid on any highway, and such soil, ashes, or rubbish shall not be of sufficient value to defray the expense of removing them, the person who laid or deposited such soil, ashes, or rubbish shall repay to the said surveyor," &c., "the money which he shall have necessarily expended for the removal thereof, which money, in case the same shall not be forthwith repaid, shall be levied as forfeitures are herein directed to be levied." The justices were bound to inquire into the fact whether the way in question was a highway; Thompson v. Ingham (b). (He was then stopped.) Gray, for the appellant.-This case is within the rule (b) 14 Q. B. 710. (a) 18 Q. B. 870. 1862. WILLIAMS V. ADAMS. 1862. WILLIAMS V. ADAMS. . stated by Coleridge J. in Reg. v. Cridland (a), that "the jurisdiction of justices to convict summarily ceases as soon as a claim of title is bonâ fide made." [Crompton J. In Paley's Law and Practice of Summary Convictions, 4th ed., p. 41, it is said to be a rule "that, 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 cognisance of." Wightman J. If justices could not try the question whether this is a highway or not, it would be a short formula for getting rid of the jurisdiction given to them by sect. 73 of stat. 5 & 6 W. 4. c. 50., because any stranger might dispute whether the way was a highway or not.] The question whether the land of a person is subject to the burden of a highway over it is a question of title; Dykes v. Blake (b); and the order affects the appellant, because under it the surveyor will proceed to sell his property; but if a stranger and not the owner had committed the nuisance, there would be no person before the justices whose title to the land could be set up. [Wightman J. Might not the appellant maintain an action against the surveyor for removing his property.] The action might perhaps be maintainable on the ground of want of jurisdiction. [Wightman J. The appellant might have appealed against this order to the quarter sessions under sect. 105.] H. Matthews, in reply.-The way in question was a church way, and the land belonged to the appellant; and therefore title to land did not come in question. [Wightman J. Would not the order be evidence against the (b) 4 Bing. N. C. 463. (a) 7 E. & B. 853. 868. appellant that the way in question is a highway? He is a party to the proceedings, seeing that he is called upon to answer a complaint for not removing the rubbish which he had deposited on the highway.] There is no provision in stat. 5 & 6 W. 4. c. 50., requiring that the person who has deposited rubbish on a highway should be summoned; besides which the order would only be evidence in a proceeding between the same parties. The whole jurisdiction of the justice fails if the way is not a highway; therefore he must decide the question whether it is one. [He cited Reg. v. Dayman (a).] [Wightman J. Sect. 73 of stat. 5 & 6 W. 4. c. 50. applies to a footway also.] The same question might arise on many other sections of this statute. WIGHTMAN J. I am of opinion that the order ought to be affirmed. In this case the question of title to land did not arise. The land belonged to the appellant, and there was a right of way over it. The only question was, whether it was a highway. There is no clause in the Highway Act, taking away the summary jurisdiction of the justice if title to land comes in question, like the proviso in sect. 24 of the Malicious Trespass Act, 7 & 8 G. 4. c. 30., excepting injuries done under a bonâ fide claim of right, or like the clause in the Game Act, 1 & 2 W. 4. c. 32. s. 30., which enables the person charged with a trespass upon land to prove by way of defence any matter which would have been a defence to an action for such trespass. Upon this information, under stat. 5 & 6 W. 4. c. 50. s. 73., the magistrate could not stir a step without deciding whether the way in question was a highway. This he was bound to determine, and the appeliant is not concluded by his decision. Therefore (a) 7 E. & B. 672. 1862. WILLIAMS V. ADAMS. 1862. WILLIAMS V. ADAMS. this case differs from Reg. v. Cridland (a), and from other cases which might be cited. CROMPTON J. (The only other Judge present.) At first I was struck by the way in which Mr. Gray put the case-that title to land came in question, because the appellant said, this is my land subject to an easement of a private right of way. It is clear, as I said in Reg. v. Cridland (a), p. 871, that the magistrates are not, under the guise of a conviction, to decide a question of freehold title to land; and, as Coleridge J. said in the same case, p. 869, this is a rule which does not depend upon a provision in any particular Act of Parliament. But when an Act of Parliament makes magistrates the very tribunal to decide whether the way is a highway or not, the legislature must have supposed them competent to decide it; and, as Mr. Matthews said, the question whether it is a highway or not lies at the foundation of their jurisdiction. What is the dispute?-not whether the appellant had title to land, but whether the way was a highway or not. With regard to every other person except the owner of the land, there is no doubt as to the right of magistrates to try that question; and where the main object of an Act of Parliament is to give magistrates jurisdiction over a matter connected with land, there should be a special provision in order to take the case out of their jurisdiction, or stay proceedings, where title is in question or there is a bonâ fide claim of right, as there is in the Malicious Trespass Act, 7 & 8 Geo. 4 c. 30. s. 24., the Act for ejectment by magistrates, 1 & 2 Vict. c. 74. s. 3., and the County Court Act, 9 & 10 Vict. c. 95. s. 58. Order confirmed (b). (a) 7 E. & B. 853. (b) See Reg. v. Harden, 2 E. § B. 188. 1862. The QUEEN against The Inhabitants of ST. GEORGE, Middlesex. Saturday, 9 & 10 Vict, c. 66. s. 4. 1. Stat. 9 & 10 Vict. c. 66. s. 4., by which "no warrant shall be granted. Order of for the removal of any person becoming chargeable in respect of relief removal. Sickness. made necessary by sickness, unless the justices granting the warrant shall state in such warrant that they are satisfied that the sickness will produce permanent disability," applies only to the case of sickness of the person removed. 2. Therefore where a man, in consequence of sickness, left his wife and children in the respondent parish, and went into an hospital in another, and his wife and children became chargeable to the respondent parish, it was held that an order for their removal to the parish of his settlement need not state that the justices were satisfied that the sickness would produce permanent disability. ON appeal against an order of two justices for the re moval of Sarah Hesketh and her two children from the parish of St. George, in the county of Middlesex, to the parish of St. Mary, Whitechapel, the sessions quashed the order subject to the opinion of this Court on the following case. In the order of removal above mentioned, dated 10th November, 1859, Sarah Hesketh was described as "the wife of William Hesketh, absent from her, and out of the said parish of St. George." And, at the time of making such order, the paupers named therein, and also the husband, William Hesketh, were legally settled in the parish of St. Mary, Whitechapel. In July, 1858, Sarah Hesketh,, the pauper, first came with her husband and children to reside in the parish of St. George. On the 14th April, 1859, the pauper's husband, in consequence of his sickness, left his wife (the pauper) and children in the parish of St. George, and went into St. Thomas's Hospital, which is situate in the parish of |