on the face of the instrument; but the difference is, that if the jurisdiction be shewn, intendment will be made to support an order, which could not be made to support a conviction. Informal expressions will be allowed in the one, which would render the other invalid. (Rex v. Maulden, 8 B. & C. 78; Rex v. St. Nicholas, Leicester, 3 Ad. & Ell. 79; Reg. v. Casterton, 6 Q. B. 507.) Upon the authority, therefore, of Rex v. Luffe, and Reg. v. The Recorder of King's Lynn, this order would be good. But it is, at all events, rendered valid by stat. 8 Vict. c. 10, the first section of which provides that "where any proceedings have been had or taken before the passing of this Act, or shall hereafter be had or taken in matters of bastardy under the provisions of the said recited Act (7 & 8 Vict. c. 101), and shall have been set forth according to the forms in the schedule hereunto annexed, or to the like tenour or effect, the same shall be taken respectively to have been and to be valid and sufficient in law." The form applicable to the present case is the form No. 8 in the schedule to that Act; and this order follows that form, excepting that the blank left for the name of the putative father, after the words "in the presence and hearing of," is filled up with the words "the attorney attending on behalf of the said N. S.;" but that can make no difference, for it is impossible to contend that this is not "to the like effect." In the statutory form, a blank is left after the words "the evidence of such woman;" but it has been held not necessary to fill up that blank with the words "on oath," or "on affirmation." (Reg. v. The Justices of Cheshire, 1 New Mag. Cas. 596; 3 D. & L. 337.)

66

Keane, contrà.-In Reg. v. Wroth, Wightman, J. yielded to the objection there taken with great reluctance, and the case has certainly been overruled by Reg. v. The Recorder of King's Lynn. [WIGHTMAN, J.-I certainly should not have decided that case as I did, if Rex v. Luffe had been brought under my notice.] The omission to cite Rex v. Luffe was owing to a mistake in the instructions given to the learned counsel who appeared in support of the order. He was instructed to defend an order in the form given by Mr. Lumley in his book, which did not contain the words "upon oath" at all; but upon the argument of the case, it turned out that in the order, as served, the words upon oath" had been interlined after the words "the evidence of such mother," but not after the words "such other evidence;" and consequently, when the learned judge asked for an authority warranting that form, the learned counsel was not able to produce any such authority, for the case of Rea v. Luffe would have been no authority in support of the order, if it had remained in the form given by Mr. Lumley. No case has as yet decided that it is not necessary that the evidence should appear to be given upon oath; on the contrary, they all proceed upon the assumption that it is necessary. The only effect of Rex v. Luffe is, that it did appear sufficiently in the order in that case, and also in the order in Reg. v. Wroth, that the evidence was so given. The present order, therefore, cannot be sustained, unless the statute 8 Vict. c. 10, cures it; and the question is, whether this is "according to the form in the schedule thereunto annexed, or to the like tenour or effect." The form is, "and it being now proved to us in the presence and hearing of the said that," &c.; and as the word "said" must refer to some antecedent, and there are only three,— the justices, the mother, and the putative father, it can refer to the putative father only, with whose name, therefore, the blank should be filled up; but instead of that, the words inserted are, "the attorney attending on behalf of the said N. S.;" so that, unless the Court will hold that the attorney for the putative father is in effect the putative father, this order is not "to the like tenour or effect," and is bad; and if the Court should so hold, then the order might be made upon the attorney to pay the money. [WIGHTMAN, J.-The

order states that the putative father appeared; but then goes on to say that the evidence was taken in the presence of the attorney attending on his behalf. The form given does not appear to contemplate that state of things; but there is no reason why the putative father, if he appears, should remain during the whole inquiry. LORD DENMAN, C. J.-There is this note to the words in the presence and hearing of: "Should the defendant not appear, erase the words in italics."] The notes are no part of the statute.

LORD DENMAN, C. J.-I confess I was not satisfied with the argument at the bar; and my brother Patteson, upon looking at the form, No. 8, given by the statute, has discovered that to a subsequent part of it, where the words are "and having also heard all the evidence tendered by there is this note: "Should the defendant appear by attorney or counsel, it will be then only necessary to erase the word 'by,' and add on behalf of;' but should he not appear himself, or by attorney or counsel, then erase the words in italics." So that this statutory form does clearly recognise the appearance by attorney; and I think that we must hold that the same note applies to both parts of the order, and that the power of appearing by attorney given in the one case is also given in the other. If that be so, then this order is right.

PATTESON, J.-No. 8 is the form applicable to this case; but there is the same note to No. 7. It is quite clear, therefore, that the putative father might appear by attorney; (a) and then it is necessary to alter the form accordingly. WIGHTMAN, J.-I felt some difficulty at first, in consequence of the general terms used in the order,-stating that the putative father had appeared, as though he had appeared in person; but I cannot say that that is inconsistent with the subsequent statement that the evidence was given" in the presence and hearing of the attorney attending on his behalf."

ERLE, J.-With reference to Mr. Pashley's argument, there is a recent case in the Exchequer, of Ormerod v. Chadwick (antè, p. 55).

B.

Rule discharged.

COURT OF COMMON PLEAS.

Friday, April 30.

RICHARDSON V. TUBBS. (b)

Highway-rate-Exemption under local Act.

A local Act exempted a district from all rates towards paving and lighting any other part of the parish:

Held, that this did not exempt the district from the general highway-rate.

HIS was a special case after a verdict, and it stated that it was an action of trespass for illegally distraining the plaintiff's goods. Plea-Not

guilty, by statute.

The plaintiff was the owner of the Norland estate, in the parish of St. Mary Abbotts, Kensington, in the county of Middlesex, and the defendant a justice of the peace for the county. The distress, the subject of this action, was levied at the Norland estate office, in the occupation of the plaintiff, on the plaintiff's goods, by virtue of a warrant signed by the defendant, for arrears of the highway-rate. It was contended that this distress was illegal, on the ground that the inhabitants of the Norland estate district of the parish were exempted by the 6 Vict. c. xxxiii. from the general highway-rate.

(a) Section 7 of the Act expressly gives that power.

(b) Reported by JOHN THOMPSON, Esq., Barrister-at-law.

The title of that Act is, "An Act for the Improvement of the Norland Estate, in the parish of St. Mary Abbotts, Kensington, in the county of Middlesex."

By sec. 72, the management of all the present and future streets and ways, and certain other things, were vested in the commissioners appointed under the Act.

By sec. 73, it shall be lawful for the commissioners from time to time to cause all the present or future streets, footways, and carriage-ways within the limits of this Act, or any part thereof, to be properly formed, levelled, paved, gravelled, and repaired, &c.

By sec. 77, the commissioners may pave footways.

By sec. 78, the commissioners are to keep the footways in repair.

By sec. 79, the commissioners are exempted from keeping in repair any footway, causeway, or carriage-way, after they have been dedicated to the use of the public.

By sec. 83, inhabitants rated under this Act are released and freed from all rates and assessments towards the paving and lighting any other road, street, or place in the parish.

By sec. 99, the commissioners are empowered to light the streets.

By sec. 102, the commissioners are empowered to make rates once in every year, or oftener, for the several purposes of the Act.

By sec. 154, the Act is declared to be a public Act, and required to be taken notice of judicially.

The highway-rate, for the arrears of which the distress was levied, was made under the 5 & 6 Wm. 4, c. 50, and was admitted to be, in all respects, a valid rate, except so far as it might be affected by the 6 Vict. c. xxxiii.

Channell (Huddleston with him), for the plaintiff.-This office being within the Norland estate district, mentioned in the local Act, was not liable to the general highway-rate. That rate is applicable to the whole parish, including this district. The inhabitants of the district are liable to a local rate, under sec. 102 of 6 Vict. c. xxxiii., for the purposes, among others, of paving and lighting the streets. The general highway-rate is also applicable to these purposes, by virtue of ss. 19 and 5 of 5 & 6 Wm. 4, c. 50. But by sec. 83 of the local Act, the inhabitants of this district are exempted from any rate for paving and lighting, other than the one made under that Act. The general highway-rate being applicable for the paving and lighting of the whole parish, is bad on the face of it. There should have been two rates, one for the district, the other for the rest of the parish.

Pashley (Talfourd, with him), for the defendant.-It is admitted that the inhabitants of the district are primâ facie liable to the general highwayrate, but they claim an exemption from it under the local Act. They are bound, therefore, to make out their title to be exempt clearly. The plaintiff objects that the general highway-rate may be applied to the lighting and paving of the parish. It must be admitted that it is so applicable, but this would be the subject of an appeal against the allowance of the surveyor's accounts, not an objection to the rate. (Bonnell v. Beighton, 5 T. R. 182.) But the general highway-rate is not a rate expressly for paving and lighting, and it may not be applied to those purposes. The local Act, therefore, does not exempt them from the general liability to it.

WI

ILDE, C. J.-This action cannot be maintained. The General Highway Act imposes a general liability on the parishes in England, for the public convenience. The general Act throws on the inhabitants of any locality claiming exemption the duty of establishing it clearly. The grounds of exemption here

are the assessment under sec. 102 of the local Act, and the express enactment of sec. 83. By the latter section the inhabitants of the parish are released from rates towards the paving and lighting any other road, street, or place in the parish. It is suggested that the general highway-rate, under certain authorities, is applicable to paving and lighting. The inhabitants of the parish generally are bound to keep in repair all the streets; whereas those of the district are not, after the streets have been dedicated to the public. The general highway-rate is to be made by the surveyor, on an estimate of the probable amount required. The rate is then to be allowed by the magistrates, according to the statute. The surveyor is to raise a certain sum, but the application of it is under the control of another body. Non constat to what purposes or to what part of the parish the rate will be applied. It may never be applied to the purposes to which it is here suggested it may be. Would this be any ground of appeal against the rate? If not, of what avail is the objection in this case? The plaintiff is only exempt from rates expressly for paving and lighting; the highway-rate is not such; and I think that, under the fair spirit of the local Act, he is not exempt from it.

COLTMAN, J. was of the same opinion.

CRESSWELL, J.-This is not a rate for paving or lighting, or paving and lighting; there was nothing to shew that it was to be applied to a purpose for which the inhabitants of this district were not liable under it. If the justice then could not see that it was to be so applied, how can he be a trespasser in this action?

WILLIAMS, J. concurred.

Judgment for the defendant.

COURT OF QUEEN'S BENCH.

Trinity Term.-Thursday, May 27, 1847.

THE QUEEN v. THE INHABITANTS OF HARTPURY.

Poor-Order of removal-Sufficiency of examinations—Statement of relief-Certiorari-Reservation of case by the Sessions-Practice.

When upon appeal against an order of removal the Sessions decide the appeal, subject to a case for the opinion of this Court, and a certiorari is obtained to bring up the order and the case, no questions can be raised in this court except those stated in the case; although the writ of certiorari may have required the return of the original order of justices; and a rule nisi may have been obtained to quash, not only the order of Sessions, but the original order of justices for defects apparent upon the face of it, and stated to the Court when the rule was obtained.

An examination of A. in support of an order for the removal of her two children, stated that she and her children "were removed from N. to the parish of H., in the said county of G., by an order of removal, where we were relieved; and soon after that we returned to the said parish of N., and while there, I received monthly relief from H. aforesaid, and continued to do so for six months." overseer of the parish of N. stated: “I remember taking A. and her children from the said parish of N. to the said parish of H. I took a paper and gave it to the overseer of H., with the said paupers, and left them there" :--

The

Held, that the above examinations contained sufficient evidence of relief given by the parish of H. to the paupers whilst in another parish, to let in evidence of a settlement by acknowledgment on the trial of the appeal.

PON appeal against an order of two justices for the removal of Sarah Ann Holder, aged fourteen years, and Agnes Holder, aged eleven years, from the parish of Monmouth, in the county of Monmouth, to the parish of Hartpury, in the county of Gloucester, the Court of Quarter Sessions

confirmed the order, subject to the opinion of this Court upon the following

case:

The following are all the examinations upon which the order was made, which are material to the question for the opinion of the Court. The examination of Ann Morse, wife of John Morse, states :-" About twenty years ago I married my first husband, John Holder, in the parish church of Staunton, in the county of Gloucester, by banns, by whom I had three children now living, namely, James, aged eighteen years; Sarah Ann, aged fourteen years; and Agnes, aged eleven years. My eldest son, James, is in service, and my daughters Sarah Ann and Agnes, now present, who have never gained a settlement in their own right, are now chargeable to the said parish of Monmouth. During my first husband's lifetime, we became chargeable to the parish of Newland, in the said county of Gloucester, and after the death of my first husband, who died about nine years ago, I and my said three children were removed from thence to the parish of Hartpury, in the said county of Gloucester, by an order of removal, where we were relieved; and soon after that, we returned to the said parish of Newland, and while there I received monthly relief from Hartpury aforesaid, and continued to do so for six months, and I never did any act afterwards to gain à settlement elsewhere for myself or children, until I married my present husband, John Morse. Soon after the commencement of the Newent Poor-law Union, in the said county of Glouces ter, and while I was a widow, I was relieved in the workhouse there, by the parish of Hartpury, the said parish of Hartpury belonging to the said union. I stayed in the Newent Union Workhouse, with my said three children, for about three months, at the expense of the said parish of Hartpury. I then came out of the said workhouse, and the said parish of Hartpury allowed me four shillings a week for about eight months. About seven years ago I married my present husband, John Morse, at the said parish church of Staunton, in the said county of Gloucester, by banns." The examination of Thomas Bayton states-" About nine years ago I was overseer of the parish of Newland, in the county of Gloucester, and while I was such overseer I remember taking Ann Morse, then Ann Holder, widow, and her three children, two of whom are now present, from the said parish of Newland to the said parish of Hartpury, in the said county of Gloucester. I took a paper, and gave it to the overseer of Hartpury with the said paupers, and left them there." The following, amongst others, were the grounds of appeal :

3rdly. That the said order, and the examinations whereon the same were founded, are bad upon the faces thereof respectively.

4thly. That it appears, on the faces of the said examinations, that no legitimate evidence of the removal of Ann Morse, in the said examinations mentioned, and her children, including the said Sarah Ann Holder and Agnes Holder, was given before the said justices who made the order now appealed against, the former order (referred to in the said examinations, but which we deny ever to have existed) for the removal of the said Ann Morse and her said three children not having been produced and proved before the same justices, and it not having been proved before the same justices that the said former order had been lost, destroyed, or could not be produced before the same justices.

5thly. That the examinations whereon the said order was founded contain no legal or sufficient evidence of the making or executing of the said order in the said examinations mentioned, or of the removal or delivery of the said paupers in the said examinations under the said order.

7thly. That the statements in the examination of Ann Morse as to the