the power of the Recorder to convict for an offence against a bye-law is derived from section 92, and therefore must be subject to section 132, which takes away the certiorari, and consequently the conviction cannot be brought up upon a

case.

[CROMPTON, J.-I have often wished to know what power there is in the Quarter Sessions to state a case for the opinion of this Court.]

He

[Hugh Hill, for the appellant.-A case stated is in the nature of a record of the judgment of the Quarter Sessions. referred to section 119. of the statute 5 & 6 Will. 4. c. 76.]

Overend. The power to state a case must in this case be subject to section 132. of the statute 5 & 6 Will. 4. c. 76.[He referred to a note to 1 Chit. Stats. 863, inserted in Rawlinson on Corporations, p. 220, and to The King v. the Justices of Middlesex (1).]-The only course was to obtain a rule for a certiorari to quash the conviction, on the ground of excess of jurisdiction, when affidavits might be filed

in answer.

[COLERIDGE, J.-In Nolan's Poor Law, 558, it is said, "If the Sessions entertain any doubt upon a point of law, they may either refer the matter to the Judge of assize for his opinion, or state a case for the determination of the Court of King's Bench, and this without the consent of the parties."]

[LORD CAMPBELL, C.J.-It is difficult to draw a distinction between the practice in cases of orders of removal and this conviction. Without giving at present a positive opinión on this point, we must hear the case.]

Overend and Davison then shewed cause. -The Court is confined to the conviction, which does not state that the obstruction is permanent. If the Recorder had jurisdiction to inquire into the facts, the conviction is conclusive evidence of the facts stated in it, and this Court will not interfere-Brittain v. Kinnaird (2), The Queen v. Bolton (3).

(1) 8 Dowl. & Ry. 117.

(2) 1 B. & B. 432.

(3) 1 Q.B. Rep. 66; s.c. 10 Law J. Rep. (N.s.) Q.B. 95.

[COLERIDGE, J.-The question is, whether in its nature and purpose the obstruction is temporary.]

[LORD CAMPBELL, C.J.-It cannot be removed by simply pushing it away.]

There might be a shop-front quite detached from the house. It cannot be inferred from the phrase "house-front that it was part of the freehold or of the house.

[LORD CAMPBELL, C.J.-If there was any evidence before the Judge from which he could draw an inference that it was an offence within the statute, we cannot interfere; otherwise if there was no evidence before him on which he could ground his decision.]

They referred to the observations of Coleridge, J. in The Queen v. Dunn (4).

Hugh Hill and Liddell, contrà.-This obstruction was punishable under the local act, and therefore the bye-law cannot be taken to refer to it. Section 90. of the statute 5 & 6 Will. 4. c. 76, which gives the town council power to make bye-laws, excludes matters "punishable in a summary manner by virtue of any act in force throughout such borough." Further, there is no evidence to shew that the obstruction was of a character contemplated by the byelaw. By the term "erecting a shop-front" the Court cannot understand anything that was easily removable. The case is in the nature of a special verdict, upon which the Court is to say whether it amounts to guilty or not. This Court will review the decision of an inferior tribunal upon a point on which its jurisdiction depends, even although there may be some evidence to support the decision-Thompson v. Ingram (5).

agreed that the Recorder should state the facts in the nature of a special verdict and submit it to us, and that we should answer the question stated. It is by consent of the parties that we now take cognizance of this question, and are ready to give our opinion upon it; and it would be a very salutary practice if parties would consent that the Recorder or Justices should find the facts and submit questions to this Court, and that the Court should decide upon them. That would be much better than the Court having to gather the facts from conflicting affidavits, and decide whether the case was within the jurisdiction of the Justices or not. My opinion is, that this was not an offence within the bye-law. It enumerates many things which are only temporary obstructions, and Mr. Overend admits that the general words must be confined to offences ejusdem generis. Looking to the facts found, this was not a temporary obstruction. front of the house, though of wood, is part of the building. This might, no doubt, be merely a frame of a house, which was carried along the streets, and was resting there for a time, and so obstructed the highway; but the Recorder states that it is substantially built, and contains a door and shop-front. It is shewn to be part of the house, and not a temporary obstruction, but a permanent one. It may be proceeded against by indictment, and there is a local act which gives a summary remedy; but it is not an offence against this byelaw, and therefore the conviction must be quashed.

The

COLERIDGE, J.-If we were at liberty to inquire into the merits of the case, I have never had any doubt that the conviction was wrong. The difficulty which I have felt in entertaining this case, and which I should have felt to the end except for the arrangement which has been made by consent of the parties, is, that the conviction is good on the face of it, and that the certiorari is taken away. If indeed it was made out by affidavits, that the matter was not within the jurisdiction of the Recorder, we should have quashed the conviction for want of jurisdiction. But in this case, the one party being at liberty to

shew that the right to insist upon the certiorari being taken away has been waived by the consent of the opposite party, that the Recorder should state the facts on both sides, I see no objection to the adoption of the present course, which is more convenient than bringing the case before us on conflicting affidavits. Now that it is brought before us, I have still had some difficulty in deciding whether the case was, or was not, within the jurisdiction of the Recorder. As at present advised, I am not prepared to say that it was or was not within the jurisdiction: and that inquiry is also avoided by the consent of the parties, that the conviction should be brought before us, and that the only question should be whether the decision on the merits was a correct decision. We have often looked only at the points which the Magistrates wish us to decide, and have closed our eyes against any other objection which might have been taken. The present course cannot operate injuriously, because it leaves all questions on the jurisdiction untouched. I have no doubt on the main point, and am of opinion that the offence was not within the bye-law, and therefore the Recorder came to a wrong conclusion.

ERLE, J.-I concur on the main point. This projection is not an obstruction within the meaning of the bye-law, and therefore the conviction was wrong. I join with much satisfaction in the judgment of the Court. I think that the question of expounding a statute may in many important cases well be raised in the way of questioning the jurisdiction, and if not so raised, by bringing up the case in this manner. The legislature has carefully excluded the writ of certiorari, because in many cases in which it was allowed it was applied to objections of mere informality in the proceeding. But if the use of it were restored for the purpose of raising questions of substance, by consent of the parties, for the opinion of this Court, it would be a salutary addition to the jurisprudence of this country.

CROMPTON, J.-When we come to the question whether the Magistrates, having

decided one way, decided rightly, I have a difficulty in saying that the rule is right, that where there is no evidence, we can say that they acted without jurisdiction, and whether the matter is within a particular bye-law is such a question. But as regards the present proceeding, the Magistrates cannot in every case ask this Court to answer a question, but there is no objection to their doing so when the parties consent to send a case for the opinion of this Court in the way of a special verdict. We then confine ourselves to the question which the parties ask us. In this case they agree that the conviction is to be confirmed or quashed, according as it is or is not for an offence within the bye-law, and I do not see how we can entertain any other question. I have no doubt on the main question, and agree that the conviction should be quashed according to the terms of the case stated.

Towns Improvement Clauses Act, 1847, (10 & 11 Vict. c. 34.)-Cleansing Streets -Manufactories-Construction of Words, "Dust, Ashes and Rubbish of Houses and Tenements.'

Section 87. of the Towns Improvement Clauses Act 1847, (10 & 11 Vict. c. 34.), which requires the Commissioners under the special act to cause "all the dust, ashes and rubbish to be carried away from the houses and tenements of the inhabitants of the town or district within the limits of the special

A local act of parliament (18 Geo. 3. c. lxxiv.) empowered the vestrymen of a parish, or the major part of them, to remove the poor-law collector of the parish from his office-Held, (affirming the decision below, ante, page 68), that the majority must be an actual majority of the vestrymen assembled; and that it was not sufficient, at a meeting of thirty-five vestrymen, for sixteen to vote for the removal and eleven against it, the remaining eight abstaining from voting altogether.

Where it appeared that the poor-rate collector could not collect the rates without having the rate-books in his possession, and that it had been usual for the overseers of the parish to deliver the rate-books to him for such purpose, and that there was no legal impediment to their delivery to him, it was held, that he was entitled to have the temporary possession of them for such purpose as against the overseers-affirming the decision below (ante, page 68).

[For the report of the above case, see the Volume for 1858.]

ABORTION-What amounts to a causing to be
taken poison with intent to procure abortion.
R. v. Wilson, 18

ACTION by guardians, for relief to poor of another
union]-An action cannot be maintained by the
guardians of the poor of a union against the
guardians of another union, for relief afforded
to the non-resident poor of the latter union,
unless the accounts of such relief have been
transmitted quarterly, in conformity with the
orders of the Poor Law Board; even though the
relief had been duly ordered and never counter-
manded. Quare-whether an action could be
maintained against the guardians, even if the
accounts had been duly transmitted. Wycombe
Union v. the Eton Union, 97

ADJUDICATION-Refusal to adjudicate. See Jus-
tice of the Peace.

AFFIDAVIT-Whether admissible to raise objec-
tions not appearing on the face of a commitment.
See Master and Servant.

ALE AND BEERHOUSE. See Beer Licence.

AMENDMENT of statement of ownership of goods.
See Autrefois Acquit-of order of affiliation, by
the Court. See Bastardy.

APPEAL against a poor-rate; entry and respite]—
Where a party has appealed against a poor-rate,
on the ground that other persons are omitted
or under-rated, and has served notice of appeal
on the parish officers, but not on the parties ob-
jected to, as required by 43 Geo. 3. c. 23. s. 6,
the next Sessions are bound to enter and respite
the appeal, under 17 Geo. 2. c. 38. s. 4. R. v.
Eyre, 14

Fourteen clear days before the sessions next
after the making of a poor-rate, a notice, ac-

companied by grounds of appeal, was served on
the parish officers, of an intention to enter an
appeal at those sessions, but not then to try,
but to petition for a respite to the next follow-
ing sessions. The respondents informed the
appellant that they should oppose a respite. At
the sessions the respite was opposed; and the
Sessions called on the appellant to proceed, and,
on his declining, dismissed the appeal, with
costs. It was held, the Sessions acted within
their jurisdiction, and were not bound to respite
after this notice of appeal had been given. R.
v. Eyre, 121

A notice of appeal against a poor-rate, ad-
dressed to the parish officers and to each of the
persons named in a schedule following, (one
of the grounds of appeal being that these
persons were omitted or under-rated), was
served on the officers before the next ses-
sions, but not on the persons scheduled; and
the appeal being entered was dismissed by the
Sessions on account of this want of service. The
Court of Queen's Bench having held that those
Sessions, being the first, were bound to have
entered and respited, continuances were en-
tered, and the appeal was called on at a sub-
sequent sessions, when it appeared that the
appellant had not served the scheduled persons
with a notice, but had served a fresh notice on
the officers, addressed to them only, containing,
substantially, the same grounds of appeal as the
former notice, but omitting the ground relating
to the scheduled persons. It was held not to
be competent to the appellant to do this, and
that the Sessions were right in dismissing the
appeal. R. v. Eyre, 125

against order of removal; next practicable ses-
sions]-An order for the removal of a pauper
from P. to L. was served on the 9th of Septem-
ber. On the 21st of September the clerk to the
trustees of the poor of L. wrote a letter to the

parish officers of P, stating the intention of the
trustees to appeal. On the 29th of September a
copy of the depositions was applied for, and was
received the next day. On the 7th of October
notice of appeal for the next sessions was received
by the parish officers of P. The next sessions
were holden on the 16th of October, and the
appellants not appearing and not entering the
appeal, the respondents applied for costs, but
the Sessions, under the circumstances, declined
granting costs. On the 20th of October the
pauper was removed to L. On the 23rd of De-
cember the appellants served notice and grounds
of appeal for the next (the Epiphany) Sessions,
but at those sessions the Court refused to hear
the appeal. Upon an application for a manda-
mus, it was held, that, under the circumstances,
the sessions in October were the next practicable
sessions, and that the Epiphany Sessions were
right in refusing to hear the appeal. R. v. the
Justices of Peterborough, 153

- special case, though certiorari taken away]-By
consent of the parties, appellant and respondent,
a special case may be stated, by a Court of
Quarter Sessions, for the opinion of this Court,
though the writ of certiorari be taken away.
But the questions submitted must be questions
of substance arising upon the merits of the case;
and a question of jurisdiction may conveniently
be raised in this way. So held on a special case
in which the question was, whether upon the facts
stated a certain projection in front of a house for
the purpose of a shop was an obstruction render-
ing the owner of the house liable to a penalty
under a bye-law made under the Municipal Act,
5 & 6 Will. 4. c. 76. R. v. Dickenson, 204

Who may appeal; overseers. See Pauper

Lunatic.

soner could not on the evidence have been con-
victed on the first indictment, charging the
property as that of R. B, and the Court could
only look at the first indictment as it stood, without
considering whether the allegation as to the
ownership might not have been amended, under
14 & 15 Vict. c. 100. R. v. Green, 17
BASTARDY-residence of the mother]-If a woman
goes to and lodges at a place for the purpose of
applying to the Magistrates there for an order of
affiliation, intending to leave the place as soon
as she has got the order, she having at the time
no other residence, and not having gone there
for any fraudulent or improper purpose, she is
resident at the place within the meaning of
7 & 8 Vict. c. 101, which, by section 3, requires
that application for such an order must be made
to Justices acting for the petty sessional divi-
sion within which the woman resides. R. v.
Hughes, 133

amendment of order]- An order of affilia-
tion omitted to state that the mother's residence
was within the petty sessional division; but the
summons, a copy of which was in evidence before
the Justices, alleged this fact, which was not
otherwise proved. It was held, that the Justices
had sufficient grounds before them to have
drawn up the order without the omission, and
that on a certiorari to quash the order, the Court
might, therefore, amend it under the 12 & 13
Vict. c. 45. s. 7. R. v. Higham, 116

service of summons]-A man having reason
to anticipate proceedings against him as the
putative father of a bastard child, born in the
previous November, on the 17th of July left his
father's house, where he had hitherto lived, and
went to reside with a farmer in another part
of the country, whom he assisted in the farm,
having no intention, when he left, to return
to his father's house. A bastardy summons
was left at the father's house on the 29th of
July. This a good service "at the last place of
abode." Ibid.

BEER LICENCE-signing false certificate] The ex-
ception, in section 35. of 11 & 12 Vict. c. 43. of
'any information or complaint, or other pro-
ceeding under or by virtue of any of the statutes
relating to Her Majesty's revenue of Excise or
Customs, Stamps, Taxes, or Post Office," does
not apply where the particular information or
complaint proceeds upon a section of a statute
not relating to the revenue of Excise, &c.,
although there are other sections in the statute
which do relate to the revenue of Excise, &c.
And therefore a conviction under section 8. of
4 & 5 Will. 4. c. 85, for signing a false certifi-
cate for the purpose of obtaining a licence for
the sale of beer, drawn up according to the form
provided in Schedule (I. 1.) of 11 & 12 Vict. c. 43,
is valid. R. v. Bakewell, 150

BIGAMY-knowledge of husband being alive]-On
trial of a woman for bigamy, whose first husband
had been absent from her for more than seven

2 E