determination to make the order in question under the stat. 4 & 5 Vict. c. 59(1); and it was admitted in the affidavit of the surveyor of Hartshorne, that though he did not hear the order made by the Magistrates, yet, as a matter of hearsay, he understood it had been made. It appeared that the two Justices signed the form of an order in writing, previously prepared by the clerk to the trustees, in blank, blanks being left for the length of the road, the sum of money to be paid, and other particulars.

(1) By section 1. of that statute it is enacted, "That it shall be lawful for the Justices at any special sessions for the highways holden after the passing of this act, upon information exhibited before them by the clerk or treasurer of any turnpike trust that the funds of the said trust are insufficient for the repairs of the turnpike roads within any parish, notice in writing of such intended information having been previously given on the part of such clerk or treasurer to the parish surveyor twenty-one days at least before such special Sessions, to examine the state of the revenues and debts of such turnpike trusts, and to inquire into the state and condition of the repairs of the roads within the same, and also to ascertain the length of the roads, including turnpike roads, within such parish, and how much of such road is turnpike road, and if, after such examination, it shall appear to the said Justices necessary or expedient for the purposes of the said turnpike roads so to do, then to adjudge and order what portion, if any, of the rate or assessment levied or to be levied by virtue of the said recited act, shall be paid by the said parish surveyor, and at what time or times, to the said commissioners or trustees, or to their treasurer or other officers appointed by them in that behalf, such money to be wholly laid out in the actual repairs of such part of such turnpike road as lies within the parish from which it was received."

Section 3. provides, "That if any person shall think himself aggrieved by any order, judgment or determination made, or by any matter or thing done by any Justices of the Peace, at any such special Sessions, in pursuance of the act, such person shall be at liberty to make his complaint thereof by appeal to the Justices of the Peace at the next General or Quarter Sessions of the Peace, to be holden for the county or place wherein the cause of such complaint shall arise, such appellant first giving to such Justices ten days' notice in writing of the grounds of such appeal, within six days after such order, judgment or determination shall be so made or given as aforesaid, who are hereby required, within forty-eight hours after the receipt of such notice, to return all proceedings whatever had before them respectively, touching the matter of such appeal, to the said Justices, at the General or Quarter Sessions aforesaid, &c. provided that it shall not be lawful for the appellant to be heard in support of such appeal, unless such notice and statement shall have been so given as aforesaid."

These blanks were, subsequently to the signature of the Magistrates, (but at what precise time was not stated) filled up by their clerk, in accordance with the expressed determination of the Magistrates. The order, when completed, purported to be made on the 23rd of April, and directed that payment of one half of the 1007. should be made on the 1st of June then next, and the remaining half on the 1st of September. It appeared that on the following 11th of June, a written application for payment of the 501. directed to be paid on the 1st of June, was sent by the clerk to the trustees to the surveyor of Hartshorne. No copy of the order was served upon the surveyor until the 5th of July. On the 11th of July the surveyor gave notice of appeal to the Justices, describing it as an order dated the 23rd of April. At the Michaelmas Sessions, when the appeal came on to be heard, the counsel for the respondents objected that the notice of appeal was not given in due time, inasmuch as the statute 4 & 5 Vict. c. 59. requires the notice to be given within six days after the order shall be made or given, not six days after the service thereof, and that the order in this case was made on the 23rd of April; upon this objection the appeal was dismissed."

Whitehurst and Wilmore shewed cause (May 1), and contended, that the Sessions were right. This was a good and valid order on the 23rd of April. The appellant

knew of it then. He had further distinct written notice of it on the 11th of June. The King v. the Justices of Pembrokeshire (2) and The King v. the Justices of Staffordshire (3) are authorities for the respondents. An order is complete as soon as made, whether served or not. There is no analogy between such an order and rules of court, which, by the practice of the Court, only operate from the time of service. They referred also to Proser v. Hyde (4).

Clarke, Serj. and Wildman, contrà.--The statute 4 & 5 Vict. c. 59. is of a similar nature to the statute 4 Geo. 4. c. 95; and in The King v. the Justices of Lancashire (5), decided upon the last-mentioned statute, it was held that no cause of complaint

arose until a copy of the order in writing had been served, and that a notice of appeal given within six days from that time was valid. What is the party to appeal against if no order in writing exist? That it must be in writing is shewn by the provision in the statute (sec. 3.) which requires that all proceedings must be returned to the Sessions. It would be a good ground of appeal that the order was signed in blank; but how is the party to arrive at the fact that it was signed in blank, until he be served with a copy? Or how can it be determined at a future time what the order really was? If the verbal declaration of the Magistrates be the order, and it be appealed against, the written document returned to the Sessions may be different from the verbal declaration. Who is to decide whether it be varied or not? In the case of a conviction, a good form may be drawn up and returned to the Sessions in lieu of an invalid one, but this cannot be done in the case of an order-The King v. the Justices of Cheshire (6). The words "order made or given," in the first section of the statute 4 & 5 Vict. c. 59, leave the party the option of appealing either from the time the order is made or from the service of it.

Cur. adv. vult.

The judgment of the Court was now (May 15) delivered by―

LORD DENMAN, C.J., who, after recapitulating the facts, proceeded - The point raised is whether the order can be said to have been made on the 23rd of April when it was agreed upon, or whether it was made on the day it was served. In the former case the notice of appeal was too late, and the Sessions were right; in the latter it came in due time, and the appeal ought still to be heard. The learned counsel who opposed the rule relied on two cases as decisive authorities in their favour. The King v. the Justices of Pembrokeshire, however, undoubtedly went upon no ground inconsistent with the opposite view. The order there was for stopping a road; it was made in April, and appealed against at the Michaelmas Session. The three learned Judges who held that appeal too late, all

(6) 5 B. & Ad. 439; s. c. 2 Law J. Rep. (N.s.) M.C.95.

observed that it was too late at all events; for the affidavits shewed, and it had been proved at the Sessions, that the appellant had notice of what was going on in the month of April. In Michaelmas term following the Court held, in The King v. the Justices of Staffordshire, that the time for giving notice of appeal against an order for stopping a road must be reckoned from the order made or proceeding had, and not from that of notice to the party aggrieved. There the words of the statute were held imperative on the Court. Le Blanc, J. observes, "In the case of a public highway, all the king's subjects may be said to be interested, and there never would be an end of the time for appealing if the right of appeal were to depend on personal notice of the order to the appellant." On the other hand, the case of The King v. the Justices of Lancashire was cited, in which the statute gives the right of appeal against an order exactly similar to the present, only that the words are, that notice of appeal must be sent "within six days after the cause of such complaint shall arise," dating the right of appeal from the cause of complaint; whereas this act dates it from the time of the order made or given. And there the Court held, that the cause of complaint arose at the time of serving the order. The reasons assigned by Bayley, J. are perfectly applicable to the present case; they were agreed to by Holroyd, J. and Littledale, J., and we think them sound in principle. The two cases before mentioned were referred to in the argument, but are not noticed in the judgment, probably because they are entirely dissimilar. But although we were much inclined to think the present case was ruled by the decision in The King v. the Justices of Lancashire, there is an obvious distinction between the language of the two statutes. The cause of complaint may well be taken to mean something directly affecting the party appealing, or at any rate brought to his knowledge. The period fixed in the present act is the making or giving of the order, judgment or determination, which is too distinct and express to admit of being varied by any gloss of construction. We may add, that the act provides some means for giving notoriety to the proceedings at the petty sessions, and even notice to parties

directly interested in opposing the making of such an order.

We are of opinion that the Court of Quarter Sessions properly considered the order to have been made at the petty sessions on the facts disclosed on affidavits as having appeared before them, and that the period of the order made is that to which the act of parliament refers, and the time within which the notice is to be given. We think, therefore, the Sessions were right, and the rule must be discharged.

Rule discharged.

1845. April 26. J Coroner-Deputy, Jurisdiction of-In

THE QUEEN v. PERKIN.

quisition.

An inquisition purported to be taken before R. D, coroner for the county of W, and was signed as follows: "R. D, coroner, by E. M, his deputy duly appointed." The inquisition was in fact taken, the jury sworn, super visum corporis, the witnesses examined, and the inquisition signed by E. M, the deputy. R. D. was not present when the jury were sworn, being engaged in holding another inquest at a distance. He returned in time to be present during the greater part of the examination of the witnesses, but did not personally act as coroner :-Held, that the absence of D, when the inquest began, was occasioned by a lawful and reasonable cause; that his presence afterwards did not vitiate the proceedings, which M. had authority to conduct; and that the inquisition was properly framed and signed.

In Michaelmas term last a rule was obtained, calling on Ralph Docker, one of the coroners for the county of Worcester, and S. H. to shew cause why an inquisition brought up by certiorari should not be quashed.

The inquisition was as follows:

"Worcestershire, to wit.—An inquisition indented, taken for our sovereign lady the Queen, in the parish of Oldswinford, in the county of Worcester, the 7th day of October, A.D. 1844, before Ralph Docker, one of the coroners of our said lady the Queen, for the said county of Worcester, upon view of the

body of E. H, then and there lying dead, upon the oath of J. B, &c., (setting out the jurors' names,) good and lawful men of the said county, duly summoned, and who being then and there sworn and charged to inquire for our said lady the Queen, when, where, how, and by what means the said E. H. came to her death, do upon their oath say, that the said E. H, upon the 6th day of October, in the year aforesaid, at the parish aforesaid, in the county aforesaid, suddenly departed this life in a natural way, and not from hurt or injury received from any person or persons whomsoever, to the knowledge or belief of the said jurors. In witness whereof, as well the said coroner as the foreman of the said jurors and the rest of his said fellows, have to this inquisition set their hands and seals, the day, year, and place first above written.

"Ralph Docker, (L.s.) coroner, by Edward Moore, his deputy duly appointed," &c.

Signed and sealed by all the jurors.

The affidavit of John Perkin, on which the rule was granted, stated, that as constable, he had on the 6th of October 1844, applied to and received from Edward Moore, the deputy coroner, his precept, under his hand and seal as deputy coroner, to summon a jury to hold an inquest on the body of E. H; that the jury attended accordingly, on the 7th of October, and were sworn by the said Edward Moore, and the jury so sworn attended and viewed the body of E. H, but that Ralph Docker was not present at the time the jury were sworn, and was not present and did not view the body in the presence of the jury; that several witnesses were examined by the said Edward Moore; that during part of the time, while Moore was examining witnesses, Docker was present, but did not act as coroner on the occasion; that Docker did not sign the inquisition, and that in the judgment and belief of the deponent, Docker was at the time of holding the inquest in good health, and was not at any time during the holding the same absent from any lawful

cause.

The affidavits of Docker and Moore, in opposition to the rule, stated, that Moore was the deputy coroner duly appointed; that his residence was seven miles nearer to the spot where the body of E. H. was lying

than the residence of Docker; that Docker had at 12 o'clock at noon, on the 7th of October, attended at Oldswinford, for the purpose of proceeding with an adjourned. inquest on the body of a child, and had then heard from Moore of the precept issued by him respecting the inquisition on the body of E. H. Docker's affidavit proceeded to state, that, believing the adjourned inquiry respecting the death of the child would be long and protracted, he requested Moore to proceed to take the inquisition on the body of E. H, which he accordingly did; that he himself proceeded with the adjourned inquest on the child, which occupied only a short space of time; and he thereupon returned to the place where Moore, who had sworn the jury, was proceeding with the inquisition; that the death of E. H. appeared to have occasioned considerable excitement, &c., and he "was induced in consequence of such apparent excitement, to view the body of the said E. H, and to remain and be present during the taking of the greater portion of the evidence taken on the said inquisition, for the purpose of making any suggestion to the said Edward Moore which might appear to him (Docker) calculated to facilitate the said inquiry."

It was objected, first, that the inquisition ought to have been taken before Docker, and not before Moore, as deputy, inasmuch as Docker was present during a part of the time, and was not absent from illness, or from any lawful or reasonable cause. Secondly, that having been, in fact, taken before Moore, as deputy, it ought to have purported to have been so taken, and should have been signed and sealed by Moore accordingly, as the person before whom it was taken.

Godson now shewed cause.-The stat. 6 & 7 Vict. c. 83. s. 1, gives coroners power to nominate a permanent deputy, and provides that "all inquests taken and other acts performed by any such deputy coroner, under and by virtue of any such appointment, shall be deemed and taken to all intents and purposes whatsoever to be the acts and deeds of the coroner, by whom such appointment was made; provided that no such deputy shall act for any such coroner as aforesaid, except during the illness of the said coroner, or during his absence from any lawful or reasonable cause."

Moore was duly appointed deputy; he had, therefore, authority to hold the inquest, in the lawful absence of Docker. The affidavits shew that Docker was lawfully absent, and his accidental presence during a portion of the time, during which he did not act as coroner, did not supersede or extinguish the authority of his deputy. Secondly, the inquisition is good on the face of it. It properly purports to be taken before Docker, the principal, who had authority to allow his name to be written by his deputy. If the words "by Edward Moore, his deputy duly appointed," had not been added, no question could have arisen.

Jervis, contrà.-Admitting that Moore was duly appointed deputy, he had only authority to hold the inquest in the absence of Docker; but the affidavit of Docker himself shews that he was present. The question, therefore, as to whether there was any lawful or reasonable cause for his absence, does not arise. Moore ceased to have jurisdiction upon Docker's return. Docker appears to have viewed the body, and to have signed the inquisition by Moore, while Moore appears to have examined the witnesses. The duty, therefore, was divided between them: either the whole of the proceedings should have been by the principal, or the whole by the deputy. But if the Court shall consider that Docker was not present, his absence was not justified by the facts stated. It was not intended that the coroner, by his deputy, should be holding inquests at different places at the same time.

LORD DENMAN, C.J.-I think that giving a reasonable construction to the act of parliament, this was an acting by the deputy for the coroner, during the absence of the latter. The inquest began in his absence, and it sufficiently appears that that absence was occasioned by a lawful and reasonable cause. I cannot see that the accidental presence of the principal afterwards, during a part of the proceedings, can make that bad which was properly begun. As to the form of the inquisition, there appears to me no objection in it. Even supposing the words "by Edward Moore, his deputy, duly appointed," ought not to have been there, they are but surplusage; but I think they were properly inserted.

PATTESON, J.-I apprehend, as to the last point, that the signature would have been wrong, had it been other than it is. It is laid down in Comyns's Digest, tit. 'Attorney,' (C, 14,) "If a man, who acts by the authority of another and as his attorney, does it in his own name, and as his own proper act, it will be void; for he represents his master, and ought to do it in his name, or at least, ought to express, that he does it as attorney to such a one." The form of the inquisition is, therefore, quite right. As to the absence of Docker in the first instance, it was occasioned by a reasonable cause, necessity of his being present as coroner at another place. Moore, the deputy, therefore, properly began to take the inquisition, and his jurisdiction was not superseded by the return of his principal. What took place after his return was not a new inquisition, but a continuation by Moore of that which had been properly begun.

the

WILLIAMS, J.-The statute says, that all inquests taken and other acts performed by any deputy coroner, shall be deemed and taken to all intents and purposes whatsoever to be the acts and deeds of the coroner, by whom such deputy was appointed. Here, therefore, the inquisition, though in fact taken by Moore the deputy, is properly stated to be an inquisition before Docker, and the signature, even if not strictly correct, although I agree it is correct,-is fully warranted.

WIGHTMAN, J.-As this inquisition was begun by Moore, Moore was bound to continue it, otherwise the objection raised by Mr. Jervis would have applied, and it would have appeared that part of the proceedings had been before the deputy and part before the coroner himself.

and to produce certain rate-books, the dates of which were also specified:-Held, that on the non-compliance with the summons, the Justices could not go into secondary evidence of the contents of the rate-books, and that an order of removal made on such secondary evidence could not stand.

Upon an appeal against an order of two Justices of the county of Lancaster for the removal of Robert Pickthall, his wife, and three children, from the township of Burrow with Burrow, in the county of Lancaster, to the parish of Orton, in the county of Westmoreland, the Sessions confirmed the order, subject to the opinion of the Court of Queen's Bench, on the following

CASE.

The material part of the examinations on which the order was made, and which were duly sent to the appellant parish, were as follows:-"Robert Pickthall, on his oath, saith, I was born, as I believe, in the township of Dent, in the West Riding of Yorkshire, and am now fifty years old; six years ago, that is to say, in the year 1837, I took of the Rev. Mr. Saurey, of Stainmore, a farm situate in the parish of Orton, called Raisegill Hall, for the term of two years, at the rent of 361. per annum. I occupied and resided upon the same, under the said taking, from Whitsuntide, 1837, for the two years then next ensuing, and paid the whole rent for the same, and all poor-rates for the said term. In 1839 I took the said farm for the further term of five years, and continued to

occupy and reside upon the same for the two years then next following, paying all the rent for those two years, and also all the poor-rates. In 1842 I went to Ingleton, and occupied a beer-house there, called the New Inn, but I did not pay to poor-rates there.-John Tennant, on his oath, saith, At the request of the overseers of Burrow with Burrow, I served on Thursday last a summons, of which the following is a copy, on James Ellwood, one of the overseers of the poor of the parish of Orton aforesaid, in the said county of Westmoreland. He admitted that Robert Pickthall, the pauper, belonged to their parish; he talked about appearing here to-day, in pursuance of the said summons; but I have not seen him here today. I saw the pauper's name in the

N