The KING v. CAMBRIDGE SHIRE. the justices, unless it be a joint view; and the finding must be the result of King's Bench. that joint act on the part of the justices. It must, however, be presumed, that in making this order the justices acted in concert together. As to the matter to be found although the jurisdiction is given by the 55 Geo. 3, c. The Justices of 68,-which is applicable to the stopping up of ways as useless-yet the form which has been followed, is precisely that which is given in the 13 Geo. 3, c. 78; the language used, "having upon view found," being that used in the Schedule to the latter Act. The legislature has therefore authorised that form of expression; and we must hold it to be sufficient. The second objection is, that the words, "for the full value thereof," are not twice inserted; as well in that part of the order, which requires the land to be sold to the owner of the adjoining land, as at the conclusion of the order. The enacting part, s. 17, of the 13 Geo. 3, c. 78, which requires the land to be sold by the surveyor, requires merely that it shall be sold to "some person or persons whose lands adjoin thereto, if he, she, or they shall be willing to purchase the same; if not, to some other person or persons, for the full value thereof." The form in the Schedule, No. 18, certainly has the words "for the full value thereof" twice. The language is "the land and soil thereof, to be sold by the said surveyor to whose land adjoins thereto, if he shall be willing to purchase the same, for the full value thereof, if not, to some other person or persons, for the full value thereof." I must own, however, that the objection is not entitled to any weight; because I think the words used in the Schedule cannot be understood in any other way than as fixed by the enacting part of the Statute. Then follows the objection, that there is no certificate of the approbation of the sale by the justices. Upon looking at the 55 Geo. 3, c. 68, s. 2, it appears that such part of the 13 Geo. 3, c. 78, s.17, as requires the certificate, is repealed: for the money is to be paid to the surveyor, to be applied to the general purpose of repairing the highways. On the face of the order there is therefore no good objection. It is however contended, that the party is at liberty to show, upon affidavit, facts which tend to prove that the magistrates had no jurisdiction, by showing, that at the time of the alleged view, circumstances existed which totally prevented the exercise of any judgment. It is said, that as the way was then already in fact stopped up, the justices could not come to a conclusion that it was unnecessary. I do not, however, think that there is any thing in that arguinent; a mere right to the use of a passage will give jurisdiction to the justices, as well as an existing way. The way in which the road became useless cannot be material. There is nothing therefore in this objection; nor do I see any thing in the objection, that Mr. Adeane was himself the surveyor at the time the order was made. If there had been any suggestion of fraud, it might have been otherwise. I therefore think that the order is good, both upon the face of it, and upon the facts which have been disclosed by the affidavits. PATTESON, J.-I entirely concur. The order appears to have been drawn up from the two forms in the Schedule to 13 Geo. 3, c. 68, Nos. 16 and 18. In No. 16, the form is "having upon view found." It is objected, that the order does not show that the road was found to be unnecessary upon a view had by the justices concurrently, or upon a view had by themselves at all. No doubt the Statute requires a personal view of two or more justices The KING บ. CAMBRIDGE SHIRE. King's Bench, viewing it together; and the legislature says, the form in which such view shall be stated in the order shall be "having upon view found;" this we are bound to believe means “ having upon our own joint view found" according The Justices of to the directions of the section. Then it is objected that the words " for the full value thereof" should have been inserted after the direction to sell to Mr. Adeane, if he was willing. In the clause of the Act the words occur only at the end, as in the order, and manifestly apply to the whole of that which precedes. But in the Schedule the words occur twice, and it is argued that the form in the Schedule should be closely pursued. This, however, is clear, that the words in the clause and the Schedule are intended to be ad idem. It is true that by the 69th section it is enacted, that the forms given in the Schedule shall be used, but the same section provides that no advantage shall be taken of a defect of form. Then, objections arising out of the facts in the affidavits are stated. I protest against its being understood as laid down, that we can on any occasion look into extrinsic matter upon affidavit upon a rule for a certiorari to remove an order of Sessions into this Court. I give no opinion upon the point. The general rule certainly is, that where any thing is brought up by certiorari, no objection can be taken which does not arise upon the face of it. Here, the objections which have been taken, might have been brought before the Quarter Sessions. However, supposing there were not such a rule, and that we could look into the affidavits as it has been contended, I can see no valid objections to this order. The road had been in fact stopped up for several years. I dare say, that when the magistrates went to view, they could not see the actual road in length and breadth, but they may, at all events, have seen the line and direction. The magistrates saying that they had viewed, is sufficient. If the road existed in point of law, that is enough. As to the fact that Mr. Adeane was the surveyor at the time, that appears to me to afford no ground of objection, in the total absence of fraud. Even if fraud did exist, I think it would be matter for the Sessions, and not for the consideration of this Court. It was also objected, that nothing is said in the order as to the application of the money to be paid for the soil of the highway. In the Forms Nos. 16 and 18, nothing is said about the application of the money, but a form of a certificate to be written underneath the order is given. The certificate is done away with by that part of the 55 Geo. 3, c. 68, s. 2, which directs that the money to be paid for the soil of the unnecessary road, shall be applied to the general fund for the repairs of the highways in the parish. WILLIAMS, J.-The most important question is, as to how far we can on affidavits go into the question, whether there was a total absence of jurisdiction. On this point, however, I give no opinion. Here, it is not made out that the magistrates were wholly without jurisdiction. The road may, at the time of the view, have been converted into arable land, but still it remained sufficiently a road to found a jurisdiction in the magistrates to stop it up. The case of Welch v. Nash (a) unquestionably leaves it open to parties to question the jurisdiction in an action, but it goes no further. Objections are made to this order as arising upon the face of it, and the first objection is, as to the words "having upon view found." We must read these expressions in the ordinary way. We must not make a violent construction in favour of the order, nor must we force it into nonsense. It must be taken to mean, (a) 8 East, 394. that the finding was upon the joint view of the justices who make the order. King's Bench. Another objection is, that the words "for the full value thereof" are not repeated. Upon this I agree with the rest of the Court. COLERIDGE, J.-I am of the same opinion. It is most important that this Court, which is to restrain inferior Courts in their proceedings, should be most cautious in exercising its powers, except in cases where it sees that those proceedings are contrary to law and justice, and except where the law has clearly defined that an appeal to this Court should lie. It is right too, that inferior Courts should know, that when their decision upon the subjectmatter before them is to be final and conclusive, this Court will not interfere without some good ground being clearly made out. The order in this case may be considered as subject to three objections; first, that there was a deficiency in the evidence on which it was founded; secondly, that it tended to inconvenience and injustice; and, thirdly, that it was made without jurisdiction in the justices. If the order was likely to produce inconvenience and injustice, the legislature has provided a remedy for that evil, in an appeal to the Quarter Sessions, and the decision of that Court is final. If the order has been made without jurisdiction in the magistrates making it, it is unnecessary for this Court to interfere to quash it, for he who asks that it may be quashed, may contest its validity in an action of trespass; and if his objection be well founded, the order will go for nothing, and nobody's interests will be affected by it. That is a point of law about which there can be no doubt. So that without laying down any broad rule upon orders which have been made by magistrates under highway acts, it is sufficient to say, that from any such order there may always be an appeal; and then, though such order may be confirmed, it will be good for nothing if it is made without jurisdiction in those who make it. This Court is then relieved from the necessity of looking at the objections of inconvenience that may be supposed to arise under such an order. I say nothing of the weight of these objections in the present case. I must observe this, that the more strong are the objections on the ground of inconvenience, the more strong must be the reason that those objections should be examined into at the Court of Quarter Sessions. That Court, we must presume, will act justly, and not allow the magistrates to exceed their jurisdiction; for if they do, the order made by them will be but a nullity. This brings me to the other class of these objections. The first is, that the order purports to be made on view without more; and the other is the omission of the words "full value" in the contingent directions as to the sale of the soil of the highway to the owner of the adjoining land. The words are 66 we having upon view found." What do they mean? Does not the expression imply knowledge? There is a distinction between what is done upon view, and what is done upon evidence. The Statute, in requiring the magistrates to make their order upon view, means, that they are to proceed upon their own view taken at the time; and we cannot, in my opinion, give any other meaning to these words, than that the magistrates here, have upon their own view, found certain facts to be as stated by them in the recital of the order. I come then to the observations made with respect to the words "full value." The objection founded upon the use of those words has been put in more than one way. The legislature, in the very section giving the power of sale, has used those words only once. Can The KING บ. The Justices of SHIRE. King's Bench. The KING v. The Justices of SHIRE. we then say that the omission of them in one part of the sentence is material; and that, placed as they are at the end of that sentence, they do not override the whole sentence? They must do so in order to effect the object of the section into which they are introduced. It would be productive of the most CAMBRIDGE inconvenient consequences to adopt any other construction of the sentence; and, it seems to me, that no other can fairly be given to it. There are one or two other objections less important in their nature. The first is, that there is no date given as to the time of payment. That was not a necessary part of the order, for the money was to go, under the former statute, to the owner of the land; but, under the 55 Geo. 3, it is to go into the hands of the person who is to make the sale,—namely, the surveyor; part of whose duty it is to obtain payment; and the direction to obtain payment was therefore in such a case quite unnecessary. With regard to there being no certificate of sale, the thing speaks for itself. There could be no certificate. The sale must follow the order-they could not be concurrent acts: and if you bring the order here, and thus prevent the sale, how is it possible that there should be any certificate of sale? I am therefore of opinion, that the objections made to this order have not been supported, and that the rule for the certiorari must be discharged. 1. The sheriff cannot support an interpleader rule on a claim made on goods seized under a fi. fa., Rule discharged with costs. HOLMES V. MENTZE. THIS was a rule obtained by the Sheriff under the Interpleader Act. The plaintiff obtained a judgment against the defendant, who was a winemerchant carrying on business under the firm of L. Mentze & Co. On 17th February, 1835, the plaintiff issued a fi. fa. on the judgment, and the Sheriff took the stock in trade of the defendant. On 18th February, 1835, a person interest as a part- named John Heap came in and claimed the goods, and served the following notice on the plaintiff, and on the sheriff:-" I hereby give you notice, that all the goods, chattels, and effects in, &c., seized by you, or some or one of you, by virtue of or under colour of a writ of execution, issued against the in respect of an ner, even though the claimant states that on the balance of ac counts the part nership is in that, therefore, he alone is bene ficially interested. 2. Where, in such a case, the execution creditor refused debted to him, and goods and chattels of L. Mentze, of Manchester, wine and spirit merchant, are the property of the partnership concern subsisting between me and L. Mentze, and carried on under the firm of L. Mentze & Co.: and that L. Mentze hath not any property, part, or share in the said goods, chattels, and effects, but is, on the contrary, considerably indebted to me on the balance of accounts of the copartnership, and I am alone beneficially entitled or deny the part to and interested in all the goods, chattels, property, and effects of the said partnership and I therefore require you and every of you forthwith to withdraw from and quit the possession of the premises, and to deliver up to me the quiet possession thereof, without any injury or damage to the same: was indemnified. and, in default of your so doing, I shall commence against you respectively either to admit nership, the Court enlarged the time for re. turning the writ until the sheriff : such actions, suits, and other proceedings as I may be advised. Dated, &c." It appeared on the affidavits, that Heap had become a dormant partner with the defendant in April, 1831, and that on the annual accounts,—balanced on the 30th June, 1834,-the defendant was indebted to the partnership in 25571., and that the debt had been subsequently increased. Knowles, in Easter term, obtained the rule nisi on behalf of the Sheriff, and now HOLMES บ. MENTZE. The Attorney-General and Montagu Chambers showed cause on the part King's Bench. of the plaintiff.—It is clear that this case is not within the Interpleader Act. Where there is merely an equitable claim, the Court will not interfere under that Act; Sturges v. Claude (a). The Sheriff has a right to take the goods, and to sell the interest of the defendant; and the purchaser must be at the peril of the purchase, and must settle the account with Heap, the solvent partner; Parker v. Pistor (b), Chapman v. Koops (c). There is no issue which the Court could direct in this case which could affect the Sheriff. He is not in peril, and has only to put up the goods to sale, and let any person purchase them at his peril. The duty of the Sheriff is clearly pointed out in the 1 & 2 Wm. 4, c. 58, s. 6; and he will not expose himself to any action in pursuing it. There is, therefore, no pretence for this rule. Sir F. Pollock and Tomlinson appeared for Heap, to prevent his being barred under this rule, and relied on Harvey v. Crickett (d). Sir W. Follett and Knowles in support of the rule.-The right of the Sheriff to seize the goods is not denied, but he is not compelled, under circumstances like the present, to sell them. He does not know whether to sell the goods as the property of the partnership, or of the defendant. This case is precisely the same as that of a case of lien upon goods, in which case the Court will interfere; Cotter v. Bank of England (e). [Coleridge, J.— Does your affidavit show that after you received the notice you had any communication with the plaintiff?] The affidavit is in the form required by the Statute. [Coleridge, J.—Should you not show what is the nature of the danger which the Sheriff is in?] It is sufficient to show that there are opposing claims to the property. Heap claims the whole of the goods, and appears here to-day to support his claim. [Patteson, J.-What is the danger which the Sheriff incurs? He may give notice of the claim of partnership, and there may not be any purchaser.] That very circumstance justifies this application to the Court. If there was no dispute as to the property, the Sheriff might sell, but there is a bona fide dispute, and the Sheriff ought not to be called on to decide between the parties. After receiving notice, the Sheriff is clearly bound to act upon the knowledge which that notice gives him, of the existence of a claim to the goods on the part of a third person. That brings the case clearly within the Interpleader Act. The Sheriff cannot possibly sell a partnership interest; he cannot make himself a tenant in common with the other partner; Burton v. Green (f). If the execution creditor requires the Sheriff to sell the goods at all events, he should give an indemnity. Lord DENMAN, C. J.-This is a case in which the Sheriff is called on by the execution creditor to sell goods which a person, who says that he is a partner with the defendant, claims as belonging to the partnership. He requires the Sheriff not to sell the goods, as well on that ground, as because the defendant is indebted to him, the partner, in a greater amount than the (a) 1 Dowl. P. C. 505. VOL, I, (e) 3 Moore & Scott, 180; S. C. 2 Dowl. P. C. 728. U U (f) 3 Car. & Payne, 306. |