Bridgewater (5), The King v. Wilson (6), The Queen v. Spackman (7), Welch v. Nash (8). If the order is to be supported on the ground that the surveyors had notice, and neglected to appear, that fact ought to have been found by the Justices.

[ERLE, J.-The order and the affidavit each shew jurisdiction, but there is a variance between them.]

The Justices never inquired into the validity of the notice; if they had done so, it might have turned out to be bad. Secondly, the notice, if relied on, is bad. It does not state that any part of the road is out of repair, nor the purpose to which the money is to be applied. Moreover, it does not state that the road was situate, or that the special sessions were held, in the divisionThe Queen v. Morice (9), The Queen v. Hickling (10), The Queen v. Martin (11). [COLERIDGE, J.-Is the notice more than a mere notice of trial?]

It is to be notice of the information which is to be given to the special sessions for the division. It ought to give the surveyors notice of the time when the inquiry is to take place, as the notice of appeal should be given within six days after the making, not after the service of the order-The Queen v. the Justices of Derbyshire (12). The statement of the party that he had notice is not equivalent to a finding by the Sessions

Suddlecomb v. Burwash (13), Weston Rivers v. St. Peter's, Marlborough (14), The King v. Netherton (15). It is not found that the hamlet maintains its own highways. Prima facie the parish is liable-The King v. the Hundred of Halfshire (16). The fact that the order is made on surveyors of the hamlet is not conclusive, as they are said to be surveyors appointed under the Highway Act. Cases may occur where one

hamlet is bound to maintain the highways of another hamlet. The Justices ought to have found positively that the hamlet was bound to repair all roads not reparable by the parish. The case of The Queen v. Rotherham (17) may be relied on by the other side. There it was held unnecessary in an order of removal to state that a township maintained its own poor; but as soon as the Justices have appointed overseers the liability attaches.

[ERLE, J.-The appointment of overseers would not conclusively bind the township to maintain its own poor.]

The

It would in an order of removal. order appointing the overseers might be questioned directly. This case is different, as a hamlet can only be liable to maintain its highways by custom. The King v. Holm, East Waver Quarter (18), is very like this case. This is a conviction fixing the hamlet with the repair of the road, and the payment of a fine, and therefore the liability of the hamlet ought to be clearly established.

[ERLE, J.-How can there be legally a surveyor of a hamlet unless it maintains its own highways?]

[COLERIDGE, J.-And what a burden would be cast on the Justices if they are bound to go into this inquiry.]

The statute seems to require that this should be done-The Queen v. Stretford (19). Next, the order is uncertain: it does not state how much of the road is out of repair. It is like an indictment, and is founded on proof of the road being out of repair, and of the liability of the hamlet to repair. Lastly, the order ought to pursue the statutory authority by shewing the state of the revenues and debts of the trust, and the condition and length of the 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 (21). There might be a rate at common 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 levied by virtue of the Highway Act." The

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

(18) 11 East, 381.

(19) 2 Ld. Raym. 1169.

(20) 6 M. & S. 319.

(21) 1 Mod. 194, 236.

notice is in that form, and the order differing from this notice is therefore invalid.

[ERLE, J.-The order distinctly mentions rates "by virtue of the statutes," &c.]

Archbold and J. T. Ingham were then heard against the rule (22).-The order is made under statute 4 & 5 Vict. c. 59, and not under the 2 & 3 Vict. c. 81; and it shews jurisdiction: indeed, that appears on the affidavit in support of the rule, as it sets out a sufficient notice. The information shews that the road was within the division. It is not necessary that the order should adjudicate that the information or the various allegations contained in it are true, or that notice was sent. It must be taken to have been so, and indeed it appears from the affidavits for the rule. It is said to be distinctly sworn that the surveyor did not attend before the petty sessions; but non constat that they did not authorize the Justices to enter upon the matter in their absence; they might have done so by letter. The order distinctly states that they did attend "in pursuance of the notice."

Cur. adv. vult.

The judgment of the Court (23) was, subsequently (July 12) delivered by

LORD DENMAN, C. J.-In this case an order of Justices on surveyors of highways to make a payment to the trustees of a turnpike road out of the highway rate had been removed by certiorari; and on a rule for quashing such order several objections on points of form, and one upon a statement of fact, have been relied on. First, it was objected that the notice of application to the surveyors was insufficient, for not shewing what part of the road was out of repair, nor for what purpose the money was to be paid, and also for not shewing that the road was within the division. The answer is, that the notice appears to give full knowledge of the nature of the application, so as to have enabled the surveyors to prepare any ground for resisting it that they might have had; and, therefore, to be sufficient. We have stated below our views of the statute

(22) They were also heard against another rule in the case of The Queen v. Longbottom, in which case similar objections were raised to a similar order.

(23) Lord Denman, C.J., Coleridge, J. and Erle, J.

on which this order was founded, which is a further answer to the objection that the parts of the road and purposes for the money are not specified; and, with respect to omitting a statement that the road was within the division, no such particularity is required in a notice. required in a notice. Secondly, it was objected that the order did not adjudicate on the truth of the application by the clerk, or on the fact of notice by the surveyors. The order recited that the clerk informed the Justices of the state of the road, and of notice to the surveyors, and prayed their consideration; it then stated an examination into the matters, and finally an order to pay. One answer to this objection is, that the order states what the statute has specified as preliminary to examination, so that no addition is necessary, the power to examine being given upon information by the clerk being exhibited, notice of such information having been previously given on the part of such clerk. It is not unreasonable to suppose that the information of the clerk as to the notice by him, was intended by the legislature to be as satisfactory as his information in respect of the state of the road. Also with respect to not adjudicating on notice, where the party is stated to have appeared, and no objection on account of want of notice is mentioned, the intendment ought to be made that notice was given-Taylor v. Clemson (24), judgment of Lord Brougham. Also considering the nature of this instrument and of the objection, we think that there is a further answer of wider application. It is an order for the payment of money, which is to be enforced in case of disobedience by summons, inquiry, conviction, and warrant. It differs materially from convictions and warrants immediately interfering with rights secured by the general laws of the land; and there is no reason for extending to such an order as this the strict rules of construction required for the instruments above described. The general rule is, that courts of law should give effect to the lawful intentions of parties, and adopt the construction which gives effect to, rather than that which defeats an instrument; and for this purpose to make the intendments which are reasonably to be inferred from the language used. The distinction between

(24) 11 Cl. & Fin. 610.

convictions and some other judicial acts of Justices was adverted to in The Queen v. Stainforth (25). Lord Hale also recognizes it when he distinguishes between acts of voluntary jurisdiction, such as taking recognizances and examinations, and acts of compulsory jurisdiction, such as committing for a crime, or imprisonment for not giving recognizances (26). Also a different standard for construction between convictions and orders was established in Ormerod v. Chadwick (27). In this present order the Justices set forth that the clerk informed them of certain matters and of notice having been given; and thereupon they proceed to state that they exercised their jurisdiction, which would be clearly legal, if they adjudicated expressly that such information was true, but inasmuch as they set it forth as the ground on which they act, it is to be reasonably intended that they judged it to be true. If they stated expressly that they adjudicated the information to be true, their order would be admitted to be correct. It appears also to us to be correct, if such statement is to be reasonably intended; and we think that it is from their setting forth the information as the ground on which they act.

The third objection was, that the order did not specify the part of the road out of repair, nor the part to which the money was to be applied. The answer is, that the objection is founded on a misconception of the effect of the statute 4 & 5 Vict. c. 59, which authorizes the Justices, on information that the funds of the turnpike trust are insufficient for the repairs of the turnpike roads, to examine the state of revenues and debts, and the state and condition of the repairs, and the length of turnpike and other highways in the parish, and thereupon to order a portion of a rate to be paid. The objection assumes that a given spot must be out of repair, as in case of indictment, and that the application must be for the repair of that spot, whereas the statute is directed to providing funds to prevent any part of the road from becoming out of repair at all. When the amount of traffic and the nature of the

(25) 17 Law J. Rep. (N.s.) M.C. 25. (26) 2 Hale, P.C. 51, 52.

(27) 16 Mee. & W. 367; s. c. 16 Law J. Rep. (N.s.) M.C. 143.

NEW SERIES, XVIII.-MAG. CAS.

available materials are known, the average expense of maintaining a line of road can be calculated. The information is to shew that the funds are insufficient for the repairs generally, and the inquiry is to be into the total of available revenue and the total of probable expenditure, and the order is to be founded on this general view. The rules relating to indictments for non-repair have no relevancy to the exercise of this jurisdiction, and the objection therefore fails.

The fourth objection is, that this order directs the money to be paid out of the rate which shall next be made for the repair of the highways, the statute being confined to rates under the 5 & 6 Will. 4. c. 50, and the suggestion being that there may be a common-law rate for repairs of highways to which the order may apply, and so be comprised in the order and beyond the power given by the statute. We will not stop to inquire whether we should be justified in imagining a process that has not been made use of probably for some centuries, for the purpose of making an ambiguity in a Magistrate's order, because it appears to us that there is no ambiguity.

The order recites an application to the Justices to order a portion of the rates levied or to be levied by virtue of the statutes in that case made and provided, to be paid over, and adjudges that a portion of the rate which shall next be made be paid. The adjudication here must be intended to apply to the rate mentioned in the application; and that is a rate under a statute, not a rate at common law, and no other statute is shewn to apply but the statute required by the objection. We also are of opinion that the Justices may order the portion either out of a rate levied or to be levied, or leave the option of the rate to the surveyor, as decided in The Queen v. Morice.

Fifthly, it was objected that the order did not state Bradley to be a hamlet maintaining its own highways. But the order throughout names the defendants surveyors of the highways of the hamlet of Bradley, and names the rates to be for the repair of the highways within the hamlet. Now, as there would be neither a surveyor nor a rate for the hamlet unless it was a hamlet main

C

taining its own highways, that fact is stated by reasonable intendment.

Sixthly, it was objected that the order did not set out the state of revenues, the length of roads, and other matters which the Justices are to inquire into; but it appears to us that there is no reason and no precedent for requiring them so to do.

Seventhly, besides these objections to the form of the order, it was further objected that the order was untrue in a fact essential to the jurisdiction, namely, in stating that the defendants appeared before the Justices: the affidavits deny that the defendants ever appeared, and at the same time they shew that there was jurisdiction in truth, because they shew that a legal notice was duly served, and that they purposely absented themselves.

If there was the least reason for supposing that the order was intentionally false, or if we had not been satisfied that the Justices had clear jurisdiction, as far as notice is concerned, we should at once have yielded to this objection. But considering that the defendants applied for and obtained the rule for the certiorari absolute in the first instance, upon objections of form, apparent on the face of the order, and so have occasioned a heavy expense, whereas if they had relied on an objection of fact to be introduced by affidavit, they should have obtained a rule to shew cause, so that the question of fact might have been, decided by admission or answer in the ordinary way; and considering also that the objection is wholly beside any real merits, because, looking at the affidavits and order together, we see that there is in effect a variance in the statement upon the order of the evidence which was before the Justices, and that such variance is wholly immaterial to the validity of the proceeding, we have come to the conclusion that we ought not to support this objection. The rule for quashing the order will, therefore, be discharged, with costs.

Rule discharged.

The same judgment applies to The Queen v. Longbottom.

A rule had been obtained on behalf of E. H. L. Preston, one of the Justices for the borough of Great Yarmouth, for a certiorari to bring up the following appointment of overseers for that borough, in order that the same might be quashed.

"At a special session held for the parish, town, and borough of Great Yarmouth, in the county of Norfolk, we, William Norton Boroughs, Esq., mayor, and William Henry Palmer, Esq., two of her Majesty's Justices of the Peace acting in and for the said borough, inhabiting within the said borough, by virtue of and in pursuance of an act of parliament made in the 43rd year of her late Majesty Queen Elizabeth, intituled 'An act for the relief of the poor,' and of another act made and passed in the 54th year of the reign of his late Majesty George the Third, intituled 'An act to amend such part of an act passed in the 43rd year of her late Majesty Queen Elizabeth as concerns the time of appointing overseers of the poor,' do nominate and appoint James Taylor, George Arbon, Robert Barns, and William Livingstone, substantial householders in the said parish of Great Yarmouth, with the churchwardens of the said parish of Great Yarmouth, to be overseers of the poor of the said parish within our jurisdiction for the present year, and we require them to do all such things touching the said office as the law requires. Given under our hands, &c. this 7th day of April 1847. Signed," &c.

It appeared, by the affidavits, that the four overseers mentioned in the rule were appointed at a meeting of the Justices of the Peace of the borough, held in pursuance of notice on the 7th of April 1847. That Great Yarmouth is one of the boroughs mentioned in Schedule (A.) of the Municipal 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 Justices of the Peace by virtue of their office. That at the meeting the mayor and thirteen Justices were present, and the mayor stated he should appoint the overseers according to the custom adopted by his predecessors, and that he had such power; and he accordingly nominated the four mentioned in the rule. That such appointment was protested against by a majority of the Justices present at the meeting, on the ground that the mayor had not the appointment, and that the appointment ought to be made by a majority of the Justices present. That four other qualified persons were then nominated by E. H. L. Preston, one of the Justices present, and such nomination was duly seconded and approved of by the majority of the Justices present, and a formal appointment of four overseers was accordingly made out, purporting to be made at a special session by the defendant E. H. L. Preston and seven others of her Majesty's Justices of the Peace, acting in and for the borough, inhabiting within the said borough by virtue of the 43 Eliz.; but the mayor persisted in the appointment made by himself, and the four so nominated and appointed by him had taken upon themselves to act as overseers (1).

(1) The 43 Eliz. c. 2. provides, by section 1, that the overseers of every parish are to be nominated by two or more Justices of the Peace for the county, and section 8. enacts, "That the mayor, bailiffs, or other head officers of every town and place corporate and city within this realm, being Justice or Justices of the Peace, shall have the same authority by virtue of this act, within the limits and precincts of their jurisdictions, as well out of sessions as at their sessions if they hold any, as is herein limited, prescribed, and appointed to Justices of the Peace of the county, or any two or more of them, or to the Justices of the Peace in their Quarter Sessions, to do and execute for all the uses and purposes in this act prescribed, and no other Justice or Justices of the Peace to enter or meddle there; and that every alderman of the city of London within his ward shall and may do and execute in every respect so much as is appointed and allowed by this act to be done and executed by one or two Justices of the Peace of any county within this realm."

Section 10. enacts, "That if in any place within this realm there happen to be hereafter no such nomination of overseers yearly, as is before appointed, that then every Justice of the Peace of the county, dwelling within the division where such default of nomination shall happen, and every mayor, alderman, and head officer of the city, town, or place corporate where such default shall happen, shall

It was admitted, on the argument, that the appointment of overseers by the Justices of the borough was made expressly for the purpose of raising the question as to the authority of the mayor to nominate.

Sir J. Jervis (Attorney General), Archbold, and Palmer shewed cause. The question is as to the power of the mayor under the 43 Eliz. c. 2. s. 8. to appoint overseers, confirmed as his authority is by the 5 & 6 Will. 4. c. 76. s. 6. Since the passing of the former statute the overseers have been invariably nominated by the mayor, and under the latter statute he still retains his power. The case of The King v. Butler (2) may be relied on upon the other side; but in that case it was not necessary to decide whether the mayor had the right of appointment. It was there moved to quash an appointment made by two Justices, on the ground that there was a prior appointment by the mayor. The motion was made after the year of office of the overseers had expired, and Lord Mansfield said that on that ground alone the rule must have been discharged. His subsequent remarks, though strong, were obiter dicta. All that can be contended on the other side is, that the mayor has no more authority than any other Justice; but the question depends on the words of the statute. It is not unusual to give the mayor exclusive authority in matters cognizant by Justices of the Peace; e. g., the Weights and Measures Act, 5 & 6 Will. 4. c. 63. s. 33, provides that in all counties, ridings, &c. penalties under that act shall be sued for before two or more Justices, or before the

lose and forfeit for every such default 5., to be employed towards the relief of the poor of the said parish or place corporate, and to be levied as aforesaid of their goods, by warrant from the general sessions of the peace of the said county, or of the city, town, or placee or porate, if they keep sessions."

By the Municipal Corporation Act, 5 & 6 Will. 4. c. 76. s. 6, it is provided, that "after the first election of councillors under this act, the body or reputed body corporate named in the said schedules in connexion with such borough shall take and bear the name of The mayor, aldermen, and burgesses of such borough, and by that name shall have perpetual succession, &c. .... And the mayor of each of the said boroughs shall be capable in law to do and suffer all acts which the chief officer of such borough may now lawfully do and suffer, so far as the same respectively are not altered and annulled by the provisions of the act."

(2) 1 W. Black. 649.