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Bridgewater (5), The King v. Wilson (6), hamlet is bound to maintain the highways The Queen v. Spackman (7), Welch v. of another hamlet. The Justices ought to Nash (8). If the order is to be supported have found positively that the hamlet was on the ground that the surveyors had notice, bound to repair all roads not reparable by and neglected to appear, that fact ought to the parish. The case of The Queen v. have been found by the Justices.

Rotherham (17) may be relied on by the [ERLE, J.— The order and the affidavit other side. There it was held unnecessary each shew jurisdiction, but there is a variance in an order of removal to state that a townbetween them.]

ship maintained its own poor ; but as soon The Justices never inquired into the as the Justices have appointed overseers the validity of the notice; if they had done so, liability attaches. it might have turned out to be bad. Second- [Erle, J.-The appointment of overseers ly, the notice, if relied on, is bad. It does would not conclusively bind the township not state that any part of the road is out of to maintain its own poor.] repair, nor the purpose to which the money It would in an order of removal. The is to be applied. Moreover, it does not order appointing the overseers might be state that the road was situate, or that the questioned directly. This case is different, special sessions were held, in the division- as a hamlet can only be liable to maintain The Queen v. Morice (9), The Queen v. its highways by custom. The King v. Holm, Hickling (10), The Queen v. Martin (11). East Waver Quarter (18), is very like this

[COLERIDGE, J.-Is the notice inore than case. This is a conviction fixing the hamlet a mere notice of trial?]

with the repair of the road, and the payment It is to be notice of the information which of a fine, and therefore the liability of the is to be given to the special sessions for the hamlet ought to be clearly established. division. It ought to give the surveyors [Erle, J.-How can there be legally a notice of the time when the inquiry is to surveyor of a hamlet unless it maintains its take place, as the notice of appeal should be own highways ?] given within six days after the making, not [COLERIDGE, J.-And what a burden after the service of the order— The Queen would be cast on the Justices if they are v. the Justices of Derbyshire (12). The bound to go into this inquiry.] statement of the party that he had notice is The statute seems to require that this not equivalent to a finding by the Sessions should be done- The Queen v. Stretford Suddlecomb v. Burwash (13), Weston (19). Next, the order is uncertain : it does

St. Peter's, Marlborough (14), not state how much of the road is out of The King v. Netherton (15). It is not found repair. It is like an indictment, and that the hamlet maintains its own highways. is founded on proof of the road being Prima facie the parish is liable The King out of repair, and of the liability of the v. the Hundred of Halfshire (16). The hamlet to repair. Lastly, the order ought fact that the order is made on surveyors of to pursue the statutory authority by shewing the hamlet is not conclusive, as they are the state of the revenues and debts of the said to be surveyors appointed under the trust, and the condition and length of the Act. Cases may occur where one roads-- The King v. Austrey (20). Then

the order does not state out of what rate this

money is to be paid-Rogers v. Davenant (6) . Ad. & E. 230; s. c. 4 Law J. Rep. (n.s.) (21). There might be a rate at common (%) 2 Q.B. Rep. 301; s. c. 11 Law J. Rep. (N.s.)

law for the repairs of the highways. The proper mode is that adopted in The Queen

v. Morice "out of the rate levied or to be (9) 14 Law J. Rep. (N.s.) M.C. 75.

levied by virtue of the Highway Act." The (11) 2 Q.B. Rep. 1037, n.; s.c. 13 Law J. Rep.

(17) 2 Q.B. Rep. 557; 8. c. 12 Law J. Rep. (N.s.) (12) 14 Law J. Rep. (N.s.) M.C. 84.

M.C. 17. (13) 2 Salk. 491.

(18) 11 East, 381. (14) Ibid. 492.

(19) 2 Ld. Raym. 1169. (15) Burr. S.C. 139.

(20) 6 M. & S. 319. (16) 5 Term Rep. 341.

(21) 1 Mod. 194, 236.



(5) Cowp. 139.

M.C. 19.

M.C. 15.

(8) 8 East, 394. (10) Ibid. 177.

(N.s.) M.C. 45.

notice is in that form, and the order differing on which this order was founded, which is a from this notice is therefore invalid.

further answer to the objection that the [Erle, J.— The order distinctly mentions parts of the road and purposes for the money rates " by virtue of the statutes,” &c.] are not specified; and, with respect to

Archbold and J. T. Ingham were then omitting a statement that the road was heard against the rule (22).—The order is within the division, no such particularity is made under statute 4 & 5 Vict. c. 59, required in a notice. Secondly, it was oband not under the 2 & 3 Vict. c. 81 ; and it jected that the order did not adjudicate on shews jurisdiction : indeed, that appears on

the truth of the application by the clerk, or the affidavit in support of the rule, as it on the fact of notice by the surveyors. The sets out a sufficient notice. The information order recited that the clerk informed the shews that the road was within the divi. Justices of the state of the road, and of sion. It is not necessary that the order notice to the surveyors, and prayed their should adjudicate that the information or consideration; it then stated an examination the various allegations contained in it are into the matters, and finally an order to true, or that notice was sent. It must be pay. One answer to this objection is, that taken to have been so, and indeed it appears the order states what the statute has specified from the affidavits for the rule. It is said as preliminary to examination, so that no to be distinctly sworn that the surveyor did addition is necessary, the power to examine not attend before the petty sessions ; but being given upon information by the clerk non constat that they did not authorize the being exhibited, notice of such information Justices to enter upon the matter in their having been previously given on the part of absence; they might have done so by letter. such clerk. It is not unreasonable to supThe order distinctly states that they did pose that the information of the clerk as to attend “in pursuance of the notice.” the notice by him, was intended by the

Cur. adv. vult. legislature to be as satisfactory as his inThe judgment of the Court (23) was,

formation in respect of the state of the road.

Also with respect to not adjudicating on subsequently (July 12) delivered by

notice, where the party is stated to have LORD DENMAN, C.J.-In this case an appeared, and no objection on accountof want order of Justices on surveyors of highways of notice is mentioned, the intendment ought to make a payment to the trustees of a turn- to be made that notice was given- Taylor v. pike road out of the highway rate had been Clemson (24), judgment of Lord Brougham. removed by certiorari; and on a rule for Also considering the nature of this instruquashing such order several objections on ment and of the objection, we think that points of form, and one upon a statement of there is a further answer of wider applicafact, have been relied on. First, it was ob- tion. It is an order for the payment of jected that the notice of application to the money, which is to be enforced in case of surveyors was insufficient, for not shewing disobedience by summons, inquiry, convicwhat part of the road was out of repair, nor tion, and warrant. It differs materially from for what purpose the money was to be paid, convictions and warrants immediately interand also for not shewing that the road was fering with rights secured by the general within the division. The answer is, that laws of the land ; and there is no reason for the notice appears to give full knowledge extending to such an order as this the strict of the nature of the application, so as to rules of construction required for the instruhave enabled the surveyors to prepare any ments above described. The general rule ground for resisting it that they might have is, that courts of law should give effect to had; and, therefore, to be sufficient. We the lawful intentions of parties, and adopt have stated below our views of the statute the construction which gives effect to, rather

than that which defeats an instrument; and (22) They were also heard against another rule in for this purpose to make the intendments the case of The Queen v. Longbottom, in which which are reasonably to be inferred from case similar objections were raised to a similar order.

the language used. The distinction between (23) Lord Denman, C.J., Coleridge, J. and Erle, J.

(24) 11 Cl. & Fin. 610.


convictions and some other judicial acts of available materials are known, the average Justices was adverted to in The Queen v. expense of maintaining a line of road can Stainforth (25). Lord Hale also recognizes be calculated. The information is to shew it when he distinguishes between acts of that the funds are insufficient for the repairs voluntary jurisdiction, such as taking recog- generally, and the inquiry is to be into the nizances and examinations, and acts of total of available revenue and the total of compulsory jurisdiction, such as committing probable expenditure, and the order is to for a crime, or imprisonment for not giving be founded on this general view. The recognizances (26). Also a different standard rules relating to indictments for non-repair for construction between convictions and have no relevancy to the exercise of this orders was established in Ormerod v. Chad jurisdiction, and the objection therefore wick (27). In this present order the Justices fails. set forth that the clerk informed them of The fourth objection is, that this order certain matters and of notice having been directs the money to be paid out of the given ; and thereupon they proceed to state rate which shall next be made for the repair that they exercised their jurisdiction, which of the highways, the statute being confined would be clearly legal, if they adjudicated to rates under the 5 & 6 Will. 4. c. 50, expressly that such information was true, and the suggestion being that there may be but inasmuch as they set it forth as the a common-law rate for repairs of highways ground on which they act, it is to be rea- to which the order may apply, and so be sonably intended that they judged it to be comprised in the order and beyond the

If they stated expressly that they power given by the statute. We will not adjudicated the information to be true, their

stop to inquire whether we should be jusorder would be admitted to be correct. It tified in imagining a process that has not appears also to us to be correct, if such been made use of probably for some centustatement is to be reasonably intended; ries, for the purpose of making an ambiguity and we think that it is from their setting in a Magistrate's order, because it appears forth the information as the ground on to us that there is no ambiguity.

The order recites an application to the The third objection was, that the order Justices to order a portion of the rates levied did not specify the part of the road out of or to be levied by virtue of the statutes in repair, nor the part to which the money was that case made and provided, to be paid to be applied. The answer is, that the ob- over, and adjudges that a portion of the jection is founded on a misconception of the rate which shall next be made be paid. effect of the statute 4 & 5 Vict. c. 59, which The adjudication here must be intended to authorizes the Justices, on information that apply to the rate mentioned in the applithe funds of the turnpike trust are insuf- cation; and that is a rate under a statute, ficient for the repairs of the turnpike roads, not a rate at common law, and no other to examine the state of revenues and debts, statute is shewn to apply but the statute and the state and condition of the repairs, required by the objection. We also are of and the length of turnpike and other high- opinion that the Justices may order the ways in the parish, and thereupon to order portion either out of a rate levied or to be a portion of a rate to be paid. The objec- levied, or leave the option of the rate to tion assumes that a given spot must be out the surveyor, as decided in The Queen v.

as in case of indictment, and that Morice. the application must be for the repair of that Fifthly, it was objected that the order did spot, whereas the statute is directed to pro- not state Bradley to be a hamlet mainviding funds to prevent any part of the road taining its own highways. But the order from becoming out of repair at all. When throughout names the defendants surveyors the amount of traffic and the nature of the of the highways of the hamlet of Bradley,

and names the rates to be for the repair of (25) 17 Law J. Rep. (N.s.) M.C. 25. (26) 2 Hale, P.C. 51, 52.

the highways within the hamlet. Now, as (27) 16 Mee. & W.367; s.c. 16 Law J. Rep. (n.s.)

there would be neither a surveyor nor a rate

for the bamlet unless it was a hamlet mainNew Series, XVIII.-Mag. Cas.

which they act.

of repair,

M.C. 143.



taining its own highways, that fact is stated 1848. | THE QUEEN V. PRESTON AND by reasonable intendment.

Nov. 15. S Sixthly, it was objected that the order

Overseers, Appointment of Borough did not set out the state of revenues, the

Justices— Authority of Mayor. length of roads, and other matters which the Justices are to inquire into ; but it The mayor of a borough has the sole power appears to us that there is no reason and no of appointing the overseers under stat. 43 Eliz. precedent for requiring them so to do. c. 2. s. 8. and stat. 5 8 6 Vict. c. 76. s. 6.

Seventhly, besides these objections to the form of the order, it was further ob- A rule had been obtained on behalf of jected that the order was untrue in a fact E. H. L. Preston, one of the Justices for the essential to the jurisdiction, namely, in borough of Great Yarmouth, for a certiorari stating that the defendants appeared before to bring up the following appointment of the Justices: the affidavits deny that the overseers for that borough, in order that the defendants ever appeared, and at the same same might be quashed. time they shew that there was jurisdiction in At a special session held for the parish, truth, because they shew that a legal notice town, and borough of Great Yarmouth, in was duly served, and that they purposely the county of Norfolk, we, William Norton absented themselves.

Boroughs, Esq., mayor, and William Henry If there was the least reason for supposing Palmer, Esq., two of her Majesty's Justices that the order was intentionally false, or if of the Peace acting in and for the said we had not been satisfied that the Justices borough, inhabiting within the said borough, had clear jurisdiction, as far as notice is by virtue of and in pursuance of an act of concerned, we should at once have yielded parliament made in the 43rd year of her late to this objection. But considering that the Majesty Queen Elizabeth, intituled 'An defendants applied for and obtained the rule act for the relief of the poor,' and of another for the certiorari absolute in the first in- act made and passed in the 54th year of the stance, upon objections of form, apparent on reign of his late Majesty George the Third, the face of the order, and so have occasioned intituled 'An act to amend such part of an a heavy expense, whereas if they had relied act passed in the 43rd year of her late on an objection of fact to be introduced by Majesty Queen Elizabeth as concerns the affidavit, they should have obtained a rule time of appointing overseers of the poor,' to shew cause, so that the question of fact do nominate and appoint James Taylor, might have been, decided by admission or George Arbon, Robert Barns, and William answer in the ordinary way; and consider- Livingstone, substantial householders in the ing also that the objection is wholly beside said parish of Great Yarmouth, with the any real merits, because, looking at the church wardens of the said parish of Great affidavits and order together, we see that Yarmouth, to be overseers of the poor of the there is in effect a variance in the statement said parish within our jurisdiction for the upon the order of the evidence which was present year, and we require them to do all before the Justices, and that such variance such things touching the said office as the is wholly immaterial to the validity of the law requires. Given under our hands, &c. proceeding, we have come to the conclusion this 7th day of April 1847. Signed,” &c. that we ought not to support this objection. It appeared, by the affidavits, that the The rule for quashing the order will, there- four overseers mentioned in the rule were fore, be discharged, with costs.

appointed at a meeting of the Justices of the Rule discharged.

Peace of the borough, held in pursuance of notice on the 7th of April 1847. That

Great Yarmouth is one of the boroughs The same judgment applies to The Queen

mentioned in Schedule (A.) of the Muniv. Longbottom.

cipal Corporation Act, 4 & 5 Will. 4. c. 76, and that under the 90th section twentyseven persons were nominated to be Justices of the Peace for the borough, together with


the mayor and deputy mayor, who are Jus- It was admitted, on the argument, that tices of the Peace by virtue of their office. the appointment of overseers by the Justices That at the meeting the mayor and thirteen of the borough was made expressly for the Justices were present, and the mayor stated purpose of raising the question as to the he should appoint the overseers accord- authority of the mayor to nominate. ing to the custom adopted by his predeces- Sir J. Jervis ( Attorney General), Archsors, and that he had such power; and he bold, and Palmer shewed

The accordingly nominated the four mentioned question is as to the power of the mayor in the rule. That such appointment was under the 43 Eliz. c. 2. s. 8. to appoint protested against by a majority of the Jus- overseers, confirmed as his authority is by tices present at the meeting, on the ground the 5 & 6 Will. 4. c. 76, s. 6. Since the that the mayor had not the appointment, passing of the former statute the overand that the appointment ought to be made seers have been invariably nominated by the by a majority of the Justices present. mayor, and under the latter statute he still That four other qualified persons were then retains his power. The case of The King v. nominated by E. H. L. Preston, one of the Butler (2) may be relied on upon the other Justices present, and such nomination was side ; but in that case it was not necessary duly seconded and approved of by the to decide whether the mayor had the right majority of the Justices present, and a formal of appointment. It was there moved to appointment of four overseers was accord- quash an appointment made by two Jusingly made out, purporting to be made at tices, on the ground that there was a prior a special session by the defendant E. H. L. appointment by the mayor. The motion Preston and seven others of her Majesty's was made after the year of office of the overJustices of the Peace, acting in and for the seers had expired, and Lord Mansfield said borough, inhabiting within the said borough that on that ground alone the rule must by virtue of the 43 Eliz.; but the mayor have been discharged. His subsequent repersisted in the appointment made by marks, though strong, were obiter dicta. bimself, and the four so nominated and All that can be contended on the other side appointed by him bad taken upon them- is, that the mayor has no more authority selves to act as overseers (1).

than any other Justice ; but the question

depends on the words of the statute. It is 1.(1) The 43 Eliz. c. 2. provides, by section 1,

not unusual to give the mayor exclusive that the overseers of every parish are to be nomi

authority in matters cognizant by Jusnated by two or more Justices of the Peace for the tices of the Peace ; e.g., the Weights and county, and section 8. enacts, “That the mayor, Measures Act, 5 & 6 Will. 4. c. 63. s. 33, bailiffs, or other head officers of every town and

provides that in all counties, ridings, &c. place corporate and city within this realm, being Justice or Justices of the Peace, shall have the same

penalties under that act shall be sued for authority by virtue of this act, within the limits and before two or more Justices, or before the precinets of their jurisdictions, as well out of sessions as at their sessions if they hold any, as is lose and forfeit for every such default 51., to be herein limited, prescribed, and appointed to Justices employed towards the relief of the poor of the said of the Peace of the county, or any two or more of parish or place corporate, and to be levied as aforethem, or to the Justices of the Peace in their Quarter said of their goods, by warrant from the general Sessions, to do and execute for all the uses and pur- sessions of the peace of the said county, or of the poses in this act prescribed, and no other Justice or Justices of the Peace to enter or meddle there; and

city, town, or placec or porate, if they keep sessions."

By the Municipal Corporation Act, 5 & 6 that every alderman of the city of London within

Will. 4. c. 76. s. 6, it is provided, that “after the his ward shall and may do and execute in every first election of councillors under this act, the body respect so much as is appointed and allowed by or reputed body corporate named in the said schethis act to be done and executed by one or two Jus- dules in connexion with such borough shall take tices of the Peace of any county within this realm.” and bear the name of The mayor, aldermen, and

Section 10. enacts, "That if in any place within burgesses of such borough, and by that name shall this realm there happen to be hereafter no such nomi- have perpetual succession, &c. .... And the mayor nation of overseers yearly, as is before appointed, of each of the said boroughs shall be capable in that then every Justice of the Peace of the county, law to do and suffer all acts which the chief officer dwelling within the division where such default of of such borough may now lawfully do and suffer, so nomination shall happen, and every mayor, alder- far as the same respectively are not altered and man, and head officer of the city, town, or place annulled by the provisions of the act.” corporate where such default shall happen, shall (2) 1 W. Black. 649.

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