One of the

the Justices, published in the church, and collected by the overseers in the townships for which they were so appointed, and acted, as herein before stated; and they also, previous to the appointment of an assistant overseer as hereinafter mentioned, paid the poor belonging, or supposed to belong, to the several townships. The general accounts of the overseers for the townships, at the end of each year, were settled in the parish vestry, and the balance of their several accounts struck, and the overseers who had a surplus in hand brought that surplus to the parish vestry, and those who were deficient received what was due to them from the surplus of the others; and if any balance afterwards remained in hand upon the general account, it was paid over to the new overseers, for the general expenses of the ensuing year. churchwardens, in or about 1823, was elected in the parish vestry, and afterwards acted (with a salary) as a general overseer for the Denbighshire part of the parish, consisting of the said eight townships, and the several overseers paid the rates collected by them in their several townships to the person so acting as general or assistant overseer, and he paid the poor belonging to the several townships in the Denbighshire part of the parish, and kept a distinct account for each township. That part of the parish formed of the Denbighshire townships, from the year 1730 to 1833, always removed and received paupers under orders of removal, drawn as from or to the parish of Gresford, in the county of Denbigh; but it cannot be ascertained that they ever removed paupers to or from each other; but the Flintshire townships of Marford and Hoseley removed paupers to the Denbighshire part of the parish of Gresford: and on the 11th of January 1787, an appeal touching the removal of Hannah Jonas, wife of Roger Jonas, and her five children, from the lordship of Marford and Hoseley to the parish of Gresford, was tried at Mold, in the county of Flint, and the order was confirmed, with costs. In the year 1832 an application was made to the Justices of the Peace for the division of Denbighshire, in which the parish is situate, to appoint two overseers of the poor of the township of Allington, being one of the said townships in the parish of Gresford,

and upon their refusing the inhabitants of Allington applied to the Court of King's Bench, and obtained a rule for a mandamus to compel such appointment; which rule, without argument, was made absolute, and the Justices of Denbighshire, in obedience thereto, in April 1833, appointed two overseers of the poor for the said township of Allington, and for each of the other Denbighshire townships including Gwersyllt. From that time two overseers have been regularly appointed for each township, which has since managed its own affairs entirely separate and without interference with or by any of the others. The pauper Mary Lloyd was married to her deceased husband Ellis Lloyd, about the year 1772, at Gresford. Ellis Lloyd, in 1771, gained a settlement in the appellant township, by hiring and service, and died in the year 1815. A few months after the death of her husband, the pauper received regular relief from the overseers of the poor of the appellant township of Gwersyllt, and continued to do so up to the formation of the Wrexham Union in 1837, and subsequently from the relieving officer, on account of the said township of Gwersyllt, until the 12th of April 1844; during the whole of which time the pauper was living in the township of Acton, and not having done any act to gain a settlement since her husband's death. The statement of the grounds of appeal was signed by the two overseers of the appellant township only, and not by either of the churchwardens of the parish of Gresford. The questions for the opinion of the Court were, first, whether the grounds of appeal were properly signed in compliance with the 81st section of the 4 & 5 Will. 4. c. 76; and, secondly, if they were properly signed, whether, upon the foregoing facts, the pauper Mary Lloyd was settled in the said township of Gwersyllt. If the Court should be of opinion that the grounds of appeal were properly signed, and that the pauper was not settled in the township of Gwersyllt, the judgment of the Sessions was to be confirmed; if the Court should be of opinion either that the grounds of appeal were not properly signed, or that the pauper was settled in the township of Gwersyllt, the judgment of the Sessions was to be quashed.

Hayes (Dowling, Serj. with him), in support of the order of Sessions.-As to the signature to the grounds of appeal. The churchwardens of the parish act only in ecclesiastical matters. The Flintshire townships have removed paupers to the Denbighshire part of the parish; if the signatures of the churchwardens were necessary, they might be in the same case both appellants and respondents.

[Arnold, contrà, admitted that the grounds of appeal were properly signed.]

Then, as to the main question, the case is not distinguishable from The Queen v. Tipton (1) and The Queen v. Hunnington (2). In 1771 no settlement could be gained in Gwersyllt alone, for it was not then a district maintaining its own poor, but part of a larger district, consisting of Gwersyllt, Erthig, Borras and Riffre, which has since been dissolved. As to the relief, it was evidence only of a settlement, not conclusive evidence, and the Sessions, by their decision, have found that the pauper was not settled in Gwersyllt.

Arnold, contrà (Whitmore with him).The Queen v. Tipton is distinguishable. That case only decided that a settlement in a parish consisting of several townships did not confer a settlement in each of those townships, after the appointment of separate overseers, under the statute 13 & 14 Car. 2. c. 12. s. 21. But in The Queen v. Tipton there had always, previous to 1832, been one set of overseers appointed for the whole of the twelve Shropshire townships, which therefore constituted but one parish. Here, on the contrary, the only instance in which there had been overseers for the whole parish of Gresford, in the county of Denbigh, was in 1831. The facts here shew that previous to that time Gwersyllt was a separate township, maintaining its own poor. There appears to have been a separate rate for each township, not a common fund, as in The Queen v. Marriott (3), for the poor of the whole district; and although the pay

(2) 3 Q.B. Rep. 215; s. c. 11 Law J. Rep. (N.s.) M.C. 89.

(2) 5 Ibid. 273; s. c. 13 Law J. Rep. (N.S.) M.C. 24.

(3) 12 Ad. & El. 35; s. c. 7 Law J. Rep. (N.S.) M.C. 95.

ment of the surplus at the end of each year may have been an illegal appropriation of the money, such appropriation does not negative the inference arising from the other fact of the case, which shews that the township of Gwersyllt was in substance a separate district, maintaining its own poor.

[WILLIAMS, J.-At least there was evidence both ways as to whether it was a separate parish; and the Sessions must be taken to have found that it was not, by quashing the order.]

But, lastly, the Sessions have distinctly found, as a fact, that the pauper's husband gained a settlement in the appellant township, and the relief given by that township for thirty years estopped the appellants from saying that Gwersyllt was not a district competent to maintain its own poor. There must be some statute of limitation in such case.

verdict; the jury finding that the highway was not within the parish of H. The Judge ordered the costs of the prosecution to be paid by the defendants. The Court set aside the certificate for costs, on the ground of the defect in the order of Justices.

Quære-Whether the certificate for costs must shew on the face of it, that the order of Justices was properly made.

Quære, also, whether the Judge had jurisdiction to make such an order, the jury having found that the highway was not in the parish of H.

This was an indictment for the nonrepair of a highway in the parish of Hickling, directed by Justices in special sessions, under the 5 & 6 Will. 4. c. 50. ss. 94. & 95. At the trial, before Coltman J., at the Nottinghamshire Summer Assizes, 1844, the prosecutor put in an order of Justices, made in 1816, in the form given in the appendix to the statute 34 Geo. 3. c. 64, dividing a road therein mentioned, and ordering that a part of it, for the non-repair of which this indictment was preferred, should at all times thereafter be repaired by the parish of Hickling. The learned Judge was of opinion, and so directed the jury, that this order was not conclusive of the fact of the liability of the defendants to repair the portion of road so allotted to them; and the jury ultimately found a verdict for the defendants, on the ground that the road was not within the parish of Hickling. There was no dispute at the trial that the road was a highway, and the learned Judge (who thought the verdict against the evidence) granted his certificate for the costs of the prosecution, to be paid by the defendants. A rule nisi to stay the judgment, and for a new trial, was afterwards obtained by the prosecutor, and made absolute in Michaelmas term last, on the ground that the order of Justices for dividing the road was conclusive of the liability of the defendants to repair the portion of the road allotted to them-The Queen v. the Inhabitants of Hickling (1).

Whitehurst had obtained a rule, calling on the prosecutor to shew cause why the certificate for costs should not be set aside.

(1) 14 Law J. Rep. (N.s.) M.C. 177.

Wildman shewed cause.-The allowance of costs under 5 & 6 Will. 4. c. 50. s. 95, by the Judge who tried the cause, is discretionary with him: it is not dependent on the verdict-The Queen v. Chedworth (2), The Queen v. Heanor (3). This road was admitted to be a highway; and although the obligation to repair it was disputed, the Judge, by granting costs, shewed that he thought the verdict perverse. Suppose the verdict for the defendants had proceeded upon the ground that the road was in fact not out of repair, would not the Judge have had power to award the costs of the prosecution?

Whitehurst, contrà.-First, by 5 & 6 Will. 4. c. 50. s. 95, the costs of a prosecution for the non-repair of a highway can only be directed to be paid out of the highway rate levied in the parish in which such highway is situate. Here, the jury at the trial expressly found that the highway in question was not in the parish of Hickling. The Judge therefore had no jurisdiction to make this order against the defendants. Secondly, the certificate for costs must itself shew whatever was necessary to give the learned Judge jurisdiction Christie v. Unwin (4), Harrison v. Wright (5). But it nowhere appears in the certificate for costs that the order of Justices directing the indictment was made at a special sessions for the division within which the highway in question was situate. Thirdly, the order of Justices was in fact bad, for want of such an averment-The Queen v. Martin (6).

The COURT postponed the case, to allow Wildman time to answer the last objection, and, on a subsequent day, no further cause being shewn, made the

Rule absolute.

(2) 9 Car. & Pay. 285. (3) 14 Law J. Rep. (N.s.) M.C. 38. (4) 11 Ad. & El. 373; s. c. 9 Law J. Rep. (N.s.) Q.B. 47.

(5) 13 Mee. & Wels. 816; s. c. 14 Law J. Rep. (N.S.) Exch. 196.

(6) 2 Q.B. Rep. 1037, n.; s. c. 13 Law J. Rep. (N.S.) M.C. 45.

1845. Nov. 24.

THE QUEEN v. THE INHABIT

ANTS OF THE TOWNSHIP OF
DOWN HOLLAND.

Highway-Indictment for Non-Repair under 5 & 6 Will. 4. c. 50.—Costs.

An order for the costs of the prosecution under 5 & 6 Will. 4. c. 50. s. 95. can only be made when the road is proved affirmatively to be a highway; and the Court will not go into that question on affidavit.

An order had been made by Coltman, J. for the costs of the prosecution in this case under 5 & 6 Will. 4. c. 50. s. 95. It appeared that the township of Down Holland had been indicted by an order of Magistrates for the non-repair of a highway within it; and at the trial, it was attempted to be proved, that the township had immemorially repaired all highways within it. This immemorial usage was disputed, and a verdict passed for the defendants on the plea of not guilty. The way was out of repair, and it was not disputed that it was in point of fact within the township.

Cowling had obtained a rule for setting aside the order of Coltman, J. (1). In answer to the rule, affidavits were put in, stating that the road was in fact a highway, and that, on the part of the prosecution, there was ample evidence to have proved that fact if it had been disputed, but that in reality no point was made of this at the trial.

Starkie shewed cause.-The Queen v. the Inhabitants of Heanor (2) will be cited on the other side; but that case, if it has any bearing, supports the order. Patteson, J. there says that, the act contemplated an

(1) The order of Coltman, J. was in the following terms:-"The way in dispute in this case being maintained on the one side to be a public way, and the prosecutor being prepared with evidence to prove it to be so; and it being contended on the other side, that it was an occupation way only, and the defendants being prepared with evidence in support of their case on that point, but it being clear, that even if it were a public way, the defendants were not liable to repair the same; and the jury having found their verdict, acquitting the defendants on the latter ground only, without being called upon to decide the question, whether it was a public highway or not, I order that the costs of the prosecution be paid out of the rate made and levied, in pursuance of the act, by the township of Down Holland."

(2) 14 Law J. Rep. (N.s.) M.C. 38. NEW SERIES, XV.-MAG. CAS.

actual highway and cases where the duty of repair or the fact of non-repair was disputed. This was an actual highway; there was nothing to shew that it was not.

Cowling, contrà.-The verdict of not guilty shews that this was not a highway; and the Court will not upon affidavit go into the question.

[LORD DENMAN, C.J.-Your own affidavits call it a highway.]

But they also state that the defendants denied it to be a highway at the trial, and that is not distinctly denied on the other side. The defendants were charged with the duty of repair by immemorial usage. They pleaded not guilty, and under that plea they came prepared to dispute every allegation. It came out in evidence that even if the road was a highway, the township was not liable; and the question, whether it was a highway or not, was never gone into. The Court will not now, therefore, go into that question on affidavit for the purpose of giving costs to the prosecutor.

LORD DENMAN, C.J.-I think the road indicted should be shewn affirmatively to be a highway, in order to give the Judge jurisdiction to grant costs. That does not appear in this case, and the rule must therefore be made absolute.

Lunatic 2 & 3 Will. 4. c. 107.—8 & 9 Vict. c. 100.-Detainer in Asylum-Habeas Corpus-Return.

A return to a habeas corpus, directing the keeper of a lunatic asylum to bring up the body of R. F, certified that the said R. F. was, on a certain day, received under 2 & 3 Will. 4. c. 107, and that on the day and year aforesaid the keeper received an order and medical certificates, in the form directed by that act (setting them out). It then further certified, that on the 22nd of November 1845, an order and two medical certificates, under 8 & 9 Vict. c. 100. (setting them out), were delivered to the keeper; and concluded, "that the said R. F. is now

E