and I cannot see any real doubt about it. Assuming that the desire expressed in John Drake's will of 1713 amounts to a condition, it is one which the law will not allow to be performed, and the present inhabitants of the township of Keighley are in no way bound by the acts of their predecessors in this respect. Even if the rates were appropriated to the aid of the poor, I should think the condition void to the extent of exempting the land; much more when it is for the maintenance of a schoolmaster by which the poor and the other inhabitants do not necessarily receive any benefit. I do not profess to determine what effect the non-performance of the condition may have on the rights of the trustees, or the parish, to the land in question; but I am very clear that the condition cannot legally exempt the beneficial occupier of the land from being rated to the poor in respect of it.

The devise is of certain premises to the township of Keighley, "for the maintenance of a sufficient and unmarried and qualified schooolmaster, for teaching of the children residing and dwelling within the town and parish of Keighley, in the English, Latin, and Greek tongues, which said schoolmaster for the time being shall always teach and instruct the children within the said town of Keighley, free, and without any other reward or stipend whatsoever, and have the rents and profits of the said messuages yearly paid him at Whitsuntide and Martinmas, by my executors and feoffees hereinafter named." The will then names the feoffees, and provides for the succession of them, and gives them the power to suspend the schoolmaster for misconduct, and to make leases and other powers. It then goes on, "And it is further my desire, that the town and parish of Keighley aforesaid, will exempt, free, and discharge my said messuages in Keighley aforesaid, of and from the payment of all lays, taxes, impositions and assessments whatsoever." It then gives the residue of the personalty to the executors, to be by them laid out in land to and for the use and behoof and maintenance of such a schoolmaster as aforesaid, to teach and instruct the children, within the town and parish of Keighley aforesaid, but nothing is said about any exemption of such after-purchased lands. The lands in respect of which the rates are made, are

not in the occupation of the schoolmaster, but of a tenant. It appears they have never been rated. It does not very distinctly appear, whether they are lands actually devised by the will, or lands purchased with the residue of the personalty; but I will assume that they are the lands devised by the will. There is some little confusion in the will, in using the terms "town of Keighley," and "parish of Keighley," the township being only part of the parish, and maintaining its own poor; but I do not think that material. I decide on the broad ground, that the assent of the inhabitants of the township immediately after the death of the testator, cannot make the compact binding upon their successors, and that the lapse of time during which no rate has been made cannot make that valid which was not so originally. As I entertain no doubt on the subject, I think the rule for a mandamus must be made absolute.

Price moved for a certiorari to remove into this court a record of conviction, in a case tried before Tindal, C.J., at the Special Commission at Stafford, on the ground, that the learned Judge had misconceived the law. The indictment, which was admitted to be good on the face of it, was framed under section 8. of 7 & 8 Geo. 4. c. 30, and was for demolishing a house. The act proved against the prisoners was a setting fire to the house, which, it was contended, was made a distinct offence by sect. 2. of that statute.

WIGHTMAN, J.-The defendants have been convicted upon an indictment good upon

the face of it. The points now mentioned were urged before the Chief Justice and the jury, and form no ground for a removal by certiorari. On the question itself, the destruction by fire has been held, and very properly, in The Queen v. Howell (1), to be a destruction within 7 & 8 Geo. 4. c. 30. s. 8. But the answer to this case is, that there is no instance of a certiorari issuing in a case like the present, though there must be innumerable instances of the party being dissatisfied with the ruling of the Judge.

Highway Rate-Local Act, Construction of Justices-13 Geo. 3. c. 78. s. 45.

By a local act passed for improving the town of Bedford, and repairing the highways, &c., certain commissioners were invested with the "powers, provisions, and authorities" contained in the 13 Geo. 3. c. 78. (the Highway Act), and, by a subsequent section, were enabled to make a rate of not more than 8d. in the pound in any one year. A subsequent local act, amending and altering the former, recited the rate of 8d., and empowered the commissioners to raise it to 1s. and 1s. 6d. : -Held, that, under the words " powers, provisions, and authorities," the Justices of the Peace for the borough had no authority to order and allow a rate under the provisions of the 45th section of the 13 Geo. 3. c. 78.

This was an action of trover against the defendants, Justices of the town of Bedford, for issuing warrants of distress, under which the plaintiff's goods were taken for nonpayment of rates.

The following case was stated by consent of the parties:-By a local act of the 43 Geo. 3. c. cxxviii. (3), for improving the

(1) 9 Car. & Pay. 437.

(2) This case is reported by H. Horn, Esq.

(3) The 37th section enacted, "That two commissioners should be invested with all and singular the powers, provisions, and authorities, and in the receipt and possession of all compositions, rates,

town of Bedford, &c., certain commissioners were appointed for carrying the act into execution, and another act of the 50 Geo. 3. c. lxxxii. (4), for amending the above act, was subsequently passed. In February 1840, the surveyor appointed by the commissioners applied to the Justices of the town of Bedford, and required them to make a highway rate for the five parishes of which the town was composed. The application was made under the 37th section of the local act, which, it was contended, incorporated the 13 Geo. 3. c. 78. It was proved to the satisfaction of the Justices, under the provisions of the 45th section of the 13 Geo. 3. c. 78. (4), that the highways of the town could not be sufficiently repaired by the means. prescribed by the 13 Geo. 3. c. 78, whereupon they ordered that a rate not exceeding 4d. in the pound should be made by the surveyor, and allowed by one Justice of the Peace, and, when collected by the surveyor, should be applied to the repair of the highways. A rate was thereupon made, and signed and allowed by two Justices. This rate was made in addition to the rates made by the commissioners, and was coexistent with them. The plaintiff was rated under both rates; under the former in respect of property rateable by the Highway Act, and under the latter in respect of property rateable only by the local act; and having refused to pay the above rates, was

assessments, fines, and penalties given" by the 13 Geo. 3. c. 78, the act amending the same; and that

the surveyor appointed by the commissioners should

have the same powers of demanding and recovering payment of such rates as were in the said acts given to surveyors of highways.

The 50th section empowered the commissioners to assess one or more rates, once a year, upon all messuages, &c. in the town of Bedford, so that the rates did not exceed, in one whole year, the sum of 8d. in the pound.

The 2nd section of the 50 Geo. 3. c. lxxxii. (local), after reciting that the commissioners had power to raise the sum of 8d. in the pound, enabled them to raise the sum of 1s. upon messuages, houses, shops, &c., and of 1s. 6d. upon schools, chapels, halls, gaols, &c.

(4) The 45th section of 13 Geo. 3. c. 78. enacts, that if, upon the application of the surveyor of the highways to Justices of the Peace, they shall be satisfied that the highways cannot be sufficiently amended by the means thereinbefore prescribed, then an equal assessment shall be made and allowed by the Justices towards repairing the said highways, from time to time, as need shall require.

The questions for the opinion of this Court were, whether, since the passing of the General Highway Act, the 5 & 6 Will. 4. c. 50, which repeals 13 Geo. 3. c. 78, a rate or assessment may be made in pursuance of the 37th section of the local act; and, 2ndly, whether the rate made by the order of Justices was a valid rate. If the Court should be of opinion in favour of the plaintiff, judgment was to be entered by confession, with 40s. damages and costs. If the Court should be of opinion in favour of the defendants, judgment of nolle prosequi to be entered against the plaintiff, with costs.

Byles, for the plaintiff.-The question is, whether a subsidiary rate, in addition to the commissioners' rate, can be ordered by the Justices, under the 45th section of the 13 Geo. 3. c. 78. The defendants contend, that, as the commissioners are, by the 37th section of the local act, invested with all the "powers, provisions, and authorities" given by the statute 13 Geo. 3. c. 78, they possess the right of making rates with the assistance of the Justices. But it is plain, from the 37th section of the local act, that the commissioners alone are empowered to make rates, and that the sum to be assessed by them is not to exceed 8d. in the pound in one year. According to the defendants' construction of this statute, rates to an unlimited extent might be raised.-[He was then stopped by the Court.]

Gunning, contrà.-The local act, which incorporates the stat. 13 Geo. 3. c. 78, gives the commissioners the power of making a second rate when the first is insufficient. The words "all and singular the powers, provisions, and authorities," are sufficiently large to enable them to make contempo

raneous rates.

PARKE, B.-It is clear that the commissioners had no authority to cause the present rate to be made. This is plain by reference to the 37th and 50th sections of the first local act. The 50th section enables the commissioners to make rates upon certain property, which shall not exceed 8d. in the pound in any one year. But then Mr. Gunning contends, that the 37th section, by incorporating the 13 Geo. 3. c. 78, gives the

with the assistance of the Justices, if their own rate should prove insufficient. But if that had been the intention of the legislature, they ought to have used clearer words to express their meaning. In truth, no power is given to the surveyor or the commissioners to make a rate with the assistance of the Justices. The 37th section is not very happily expressed, but its object appears to have been to give the commissioners, amongst other things, more effectual means of collecting rates in arrear. If the present local act is insufficient for the purposes for which it was passed, the remedy is by an application to parliament for a fresh act.

ALDERSON, B.-I am of the same opinion. The power of rating given by the local act is a limited one, and if any power of raising a subsidiary rate had been intended, it would have been given subsequently to, and not before the clause fixing the amount of the rate. Clear words for that purpose ought to have been used; but the words are clear

the other way. The Highway Act contains

a mode of recovering antecedent rates, as well as fines and penalties; and by supposing that the "powers, provisions, and authorities" refer to these objects, we give full effect to the intention of the legislature. Why should we decide that the legislature intended, in the same act, to give a limited and an unlimited power? Again, it seems strange, if the defendants are right, that in the subsequent local act, 53 Geo. 3. c. lxxxii., no mention is made of this subsidiary power. That act authorizes the commissioners, instead of the 8d. rate, to raise a rate of 1s. and 1s. 6d., and yet it does not recite that they already had a contingent power of increasing the rates. Our judgment must be for the plaintiff.

GURNEY, B. concurred.

ROLFE, B.-The second act appears to me to decide the question. It recites that a rate of 8d. in the pound may be raised, and enables the commissioners to raise it to 1s. and 1s. 6d., and yet says nothing as to the power of increasing the rates, which, according to the defendants, the commissioners always possessed.

Judgment for the plaintiff.

1843.

Jan. 14. J

THE QUEEN v. THE JUSTICES OF
BUCKINGHAMSHIRE.

Order of Removal-Examinations—Certiorari.

Magistrates, in granting orders of removal on examinations not containing sufficient legal evidence, although acting improperly, are not acting without jurisdiction; and, therefore, the Court of Queen's Bench will not grant a certiorari to remove such an order, on affidavits setting forth the examinations, in order to inquire into their alleged insufficiency.

A certiorari will not be granted to bring up an order of removal, on the ground, that the parish to which the removal takes place, is misdescribed, (as where the parish of "All Saints, Poplar," was described "Poplar,") the parish having appealed.

A rule nisi had been obtained, calling on the Justices to shew cause why a writ of certiorari should not issue, directed to them, to remove into this court an order for the removal of Maria Bavin and her illegitimate children, from the parish of High Wycombe, in the county of Bucks, to the parish of All Saints, Poplar, in the county of Middlesex, the examinations on which it was made, the notice and grounds of appeal, and an order of Sessions confirming the order of removal. The following was the material part of the order of removal:-" To the overseers of the poor of the parish of High Wycombe, in the county of Bucks, and to the overseers of the poor of the parish of Poplar, in the county of Middlesex, and to each and every of them. Whereas complaint hath been made unto us, &c., being two of Her Majesty's Justices of the Peace, acting in and for the said county of Bucks, one whereof being of the quorum, by the overseers of the poor of the said parish of High Wycombe, that Maria Bavin and her two children have come to inhabit in the said parish of High Wycombe, not having gained a settlement," &c. Adjudication of the settlement of the paupers "in the parish of Poplar."

An objection had been taken at the trial of the appeal, to the sufficiency of the examination, which the Court of Quarter Sessions overruled, and refused to grant a case. This was, therefore, an attempt to review the decision of that Court; for which purpose, the examinations were NEW SERIES, XII.-MAG. CAS,

set out in the affidavits on which the rule was moved.

Platt, in applying for the rule nisi, contended, that it thus appeared, by affidavit, that the Justices had acted without jurisdiction, in making the order of removal, and the Court of Quarter Sessions in confirming it. He also took the following objections. to the order of removal:-first, that the order did not aver on the face of it, that the parish of High Wycombe was in the county of Bucks, so as to give the Magistrates of that county jurisdiction; secondly, that it adjudicated the settlement to be in the parish of Poplar, the proper description being All Saints, Poplar; and the following to the order of Sessions: that it purported to be made "upon reading an order," &c., whereby Maria Bavin and her children were removed" from High Wycombe to Poplar, the order being only "for the removal" of the paupers; it being lawful, under the Poor Law Amendment Act, to appeal before any actual removal took place (1). It appeared, however, that the order of Sessions was not before the Court on affidavit.

66

Pashley now shewed cause.-[He was not heard as to the objections to the order.] -Since the decisions of The Queen v. the Justices of the West Riding (Tollerton v. Idle) (2) and The Queen v. the Inhabitants of Rotherham (3), it cannot be contended that the Court will review the order of Sessions on these affidavits. The order must be taken as conclusive evidence of all on which it adjudicates-Brittain v. Kinnaird (4), In re William Saint Thomas Clarke (5), Taylor v. Clemson (6), The Queen v. Bolton (7), Yorke v. Browne (8).

Platt and Power, contrà.-First, as to the order of removal: it does not appear by it, that the removing parish is in Buckinghamshire, for the name of the county appears only in the direction, "Bucks, to wit: to the overseers of the poor of the parish of (1) The affidavits were silent as to whether the paupers had been actually removed. (2) Ante, 15.

(3) Ibid. 18.

(4) 1 Brod. & Bing. 432.

(5) 11 Law J. Rep. (N.s.) Q.B. 75.

(6) 2 Gale & Dav. 346; s. c. 11 Law J. Rep. (N.S.) Exch. 447.

49.

(7) 1 Q.B. 66 ; s. c. 10 Law J. Rep. (N.s.) M.C.

(8) 10 Mee. & Wels. 78; s. c. 11 Law J. Rep. (N.S.) Exch. 410.

E

High Wycombe, in the county of Bucks," which is no part of the order; and the parish is only distinguished in the body of the order, as "the said parish of High Wycombe." Secondly, there is no such parish as Poplar; and, although the parish of All Saints, Poplar, has appealed against the order, it has not, by so doing, cured the defect: the appeal does not preclude the parish from afterwards taking an objection to the jurisdiction. In The King v. Topsham (9), a similar objection was taken; though it is true, that the decision there was against it; but there the description itself was held sufficient, on an investigation of the circumstances. As to the examinations, it has not yet been decided, that they may not be removed, for the purpose of inquiring into the validity of the order of removal itself; for in the case of Tollerton v. Idle, the decision only was against reviewing the order of Sessions; and in The Queen v. the Inhabitants of Rotherham, the point was adverted to, not decided, the examination in that case having been held sufficient. This is a question, not whether the Sessions have acted wrongly, but whether the original Justices acted without jurisdiction; and, undoubtedly, this may be shewn on affidavits-The King v. St. James's, Westminster (10), The Queen v. Bolton.

LORD DENMAN, C.J.-As to the first question, whether we can inquire in this manner into the question of the Magistrates' jurisdiction, the judgment of the Court in The Queen v. Bolton, whatever use may be made of particular expressions picked out of it, expresses the principle to which I adhere. Its fair meaning is, that where it is averred that Justices have acted in a case not properly brought before them, we will receive affidavits to shew that such was the fact, and that they acted without authority. So, in the instance of an order of removal, it might, no doubt, be shewn on affidavits, that the Magistrates had acted without receiving any complaint, which is essential to give jurisdiction. But when once a complaint is properly before them-and it need not, as far as I know, even be in writingthey have then to decide on the points of

(9) 7 East, 466; s. c. Nolan's P.L. 204. (10) 2 Ad. & El. 240; s. c. 4 Law J. Rep. (N.S.) M.C. 15.

the chargeability, inhabitancy, and settlement of the alleged pauper. And we must take it for granted, that they have so decided to their satisfaction. On these grounds, we lately decided against having these examinations brought before us by certiorari. They do not constitute a proper subject of inquiry here. They are what the Justices have acted upon, not in entertaining, but in carrying through, their inquiry; and, in this view, the expressions of the Court in The Queen v. the Inhabitants of Rotherham, fully coincide with its judgment in The Queen v. Bolton. The objections to the orders are clearly unsubstantial. High Wycombe is shewn to be in the county of Bucks, by words of reference, and, perhaps, not even that reference was necessary. As to Poplar not being the proper description of the parish, there are many cases, besides The King v. Topsham, in which the Court has said that a parish may appeal against an order of removal in which it is misdescribed. They adopted the mode of appeal, and were heard upon the merits; and it does not appear that they even took this objection. I cannot conclude without observing, that we are extremely anxious, in these cases of settlement, that there should be, if possible, a fair trial of the real points in question, before the Courts below. We have taken great pains, by adhering to an uniform. course of decision, to enforce on parishes fulness of statement in their examinations and grounds of appeal; and having done so, we have a right to require of the Justices, that they shall exercise reasonable intendment, and rather apply themselves to get at the merits of each question, if they fairly

can.

PATTESON, J. was absent.

COLERIDGE, J.-I really think that this subject, of the right of questioning the jurisdiction of inferior courts, ought to be understood by this time. The appellants contend, that the Magistrates had no jurisdiction to remove the pauper; and that this Court is to satisfy itself that such was the case, by receiving those examinations embodied in affidavits. I fully agree, that there are cases in which it is necessary to examine on affidavits, whether inferior Courts had jurisdiction to act as they have done. But, on general principle, county Magistrates have jurisdiction to make orders of removal;