be said to pay.-He cited The King v. Axmouth (6) and The King v. Okehampton (7).

COCKBURN, C.J.-I am of opinion that our judgment must be for the respondents, and that a settlement was gained within the meaning of the 3 W. & M. c. 11. s. 6. by the payment of property-tax. With regard to the question as to notice of habitancy, I see no material distinction between payment of property-tax and payment of land-tax. It may be that what the Courts have thought sufficient evidence that parishes have received notice of habitancy is in fact insufficient, but it has beyond any doubt been decided in The King v. Axmouth (6) that any one who is charged to and pays the land-tax in a parish gains a settlement there. And in The King v. Christchurch (4) the principle of the former decision is recognized and explained, Bayley, J. saying that the land-tax was held to be within the act from the notice of inhabitancy that arose from the party's having been assessed to and paid it. Whether these cases were well or ill decided, we should be going contrary to the principles upon which this Court has acted, if we disturbed the law on the subject of the settlement of the poor. The land-tax has not been collected by parochial officers, but by officers appointed by the Commissioners of Land-tax; and by section 37. of the Property-Tax Act, officers for the receipt of land-tax and assessed taxes, and inspectors and surveyors of assessed taxes, are to act in the execution of the act, which serves to strengthen the analogy between the two cases. For these reasons, I think that the settlement was proved.

MELLOR, J. and LUSH, J. concurred.
Judgment for the respondents.

Attorneys-Capron, Dalton & Higings, for appellants; Doyle, agent for Fetch, Cambridge, for respondents.

(7) Burr. S.C. 5.

Local Board of Health-By-laws-Dwelling-house not to be erected without a Back Street or Roadway-Local Government Act (21 & 22 Vict. c. 98), s. 34.

A local board of health, purporting to act under the Local Government Act (21 & 22 Vict. c. 98), s. 34,-which enables local boards to make by-laws with respect to the level, width and construction of new streets, and provisions for the sewerage thereof, and with respect to the drainage of buildings, to waterclosets, privies, ashpits and cesspools in connexion with buildings,-made a by-law as follows: "No dwelling-house shall be hereafter erected, without having at the rear or side thereof a good and sufficient back street or roadway, at least twelve feet wide, communicating with some adjoining public street or highway, in such situation as shall be approved by the local board, for the purpose of affording efficient means of access to the privy or ashpit belonging to such house; and every plan which shall be left at the office of the local board, in pursuance of the 64th by-law, shall shew the position, width and direction of such roadway as intended to be made, and its mode of communication with adjoining streets or highways: provided always, that it shall be lawful for the local board, at their discretion, in special cases, to modify the requirement hereinbefore contained, and to dispense with strict compliance with the terms of this by-law on such conditions as they may deem fit and reasonable":-Held, that the by-law was unreasonable, and could not be enforced by the board, as it imposed a general and unnecessary restriction upon the building of all houses, instead of being limited to the particular nuisances which it was the object of the statute to prevent.

CASE stated by Magistrates under 20 & 21 Vict. c. 43. The material part of the case was as follows:

The defendant was summoned before the Magistrates by the Garston Local Board of Health for an alleged breach of a by-law

made by the board under the powers of the Public Health Act, 1848, and the Local Government Act, 1858.

The by-law referred to is No. 1. of the by-laws passed on December 5, 1865, and is in these words: "No dwelling-house shall be hereafter erected without having at the rear or side thereof a good and sufficient back street or roadway, at least twelve feet wide, communicating with some adjoining public street or highway, in such situation as shall be approved by the local board, for the purpose of affording efficient means of access to the privy or ashpit belonging to such house; and every plan which shall be left at the office of the local board, in pursuance of the 64th by-law, shall shew the position, width and direction of such roadway as intended to be made, and its mode of communication with adjoining streets or highways: provided always, that it shall be lawful for the local board, at their discretion, in special cases, to modify the requirement herein before contained, and to dispense with strict compliance with the terms of this by-law on such conditions as they may deem fit and reasonable."

The defendant was summoned for having, after the working and passing of the by-law, erected a dwelling-house without leaving at the rear or side thereof a good and sufficient back street or roadway, at least twelve feet wide, communicating with some adjoining public street or highway, in a situation approved by the local board, for the purpose of affording efficient means of access to the privy or ashpit belonging to such house. The facts were not disputed. It was admitted on the part of the defendant, that he had erected the house as alleged, without any back street or roadway, except a passage four feet in width; and that the plan submitted by him previous to the erection of the house, and after the passing and confirmation of the by-law, had been disapproved on that account by the local board; but it was contended, on his behalf, that the by-law was invalid and illegal, by reason of its not having been made with respect to any of the matters mentioned in section 34. of the Local Government Act, 1858, but for another purpose not authorized by that act, or the

Public Health Act, 1848; and also that the board had not, under these acts, the power to require any passage or back street to be made or left at the rear of any house or other building, or to require any alteration to be made in the width of any such passage or back street, if the owner of such house or other building proposed to make or leave such.

No streets or passages were actually formed on the land at the time of the making of the by-law (December 5, 1865), nor had the defendant at that time commenced to build.

The Magistrates convicted the defendant, and imposed upon him a penalty, with

costs.

If the Court should be of opinion that the defendant was bound to comply with the requirement of the by-law, the conviction was to be affirmed; if otherwise, to be reversed.

J. A. Russell, for the respondents.-The material question is, whether the by-law set out in the case is a valid one. By the Local Government Act, 21 & 22 Vict. c. 98. s. 34 (1), any local board has power to make by-laws with respect to waterclosets, privies, ashpits and cesspools in connexion with buildings; and the object of this bylaw appears to be to afford ready access to houses for the purpose of emptying and cleansing these conveniences, and to prevent

(1) By the Local Government Act (21 & 22 Vict. c. 98), s. 34, "The 53rd and 72nd sections of the Public Health Act, 1848, shall be repealed; and in lieu thereof, be it enacted as follows: Every local board may make by-laws with respect to the following matters; (that is to say,) (1.) With respect to the level, width and construction of new streets, and the provisions for the sewerage thereof; (2.) With respect to the structure of walls of new buildings for securing stability and the prevention of fires; (3.) With respect to the sufficiency of the space about buildings to secure a free circulation of air, and with respect to the ventilation of buildings; (4.) With respect to the drainage of buildings, to waterclosets, privies, ashpits and cesspools in connexion with buildings, and to the closing of buildings or parts of buildings unfit for human habitation, and to prohibition of their use for such habitation."

the refuse from being carried through the public streets.

[LUSH, J.—If a house is provided with waterclosets, it ought not to be subject to such a regulation.]

The by-law enables the board to dispense with strict compliance with the terms of it in special cases.

[LUSH, J.—If the enactment goes beyond the statutory powers, the proviso will not cure it. It is in its terms absolute.]

R. G. Williams, for the appellant, was not heard.

COCKBURN, C.J.-I think that the bylaw is bad, and that it goes beyond the powers of the act. If a field were laid out in building lots, not a house, according to this by-law, could be built unless a back street or roadway were provided; although it might be intended to be provided with a watercloset.

LUSH, J.—If the by-law had provided that no privy, &c. should be constructed without a back street or roadway, it might have been good; but it says that no house shall be erected without having such a back street or roadway.

Conviction quashed.

months after he arrived in America. On the 6th of December E. F. appeared in support of the summons, and, after hearing the case, the Justices made an order adjudicating D. to be the father of the child, and ordering him to pay money for its maintenance. The order recited that it was proved that the summons had been duly served, the same having been left at the last place of abode. The defendant having returned to England, the order was brought up by certiorari for the purpose of being quashed-Held, that this Court could not interfere, there being nothing to shew that the order was illegal, although the defendant had had no opportunity of objecting to its being made.

Rule calling upon Emma Fish, the prosecutrix, to shew cause why an order of Justices adjudging the defendant to be the putative father of the bastard child of the said Emma Fish, and ordering him to pay her certain sums of money, should not be quashed for the insufficiency thereof.

It appeared from the affidavits that, upon the 3rd of October, 1866, Emma Fish obtained from a Justice of the Peace a summons against the defendant to appear at a petty sessions to be holden at Stratton, in the county of Cornwall, on the 6th of December, to answer a complaint against him as being the father of a bastard child of which she was then pregnant. The summons was granted and was delivered into the hands of a constable for service upon the defendant, who took it on the 4th to a house at Tetcott where the defendant had been residing up to the 1st of the same month, upon which day he left the house intending to go to America. He obtained a ticket for his voyage at Plymouth on the 12th, and he sailed on the 14th. The constable, being informed that the defendant had left the house, gave the summons to the wife of the person who occupied the house, and left it with her. Upon the 6th of December Emma Fish attended at the petty sessions, and the Justices, after hearing the evidence offered in support of the application, made an order adjudging the defendant to be the putative father of the child, and ordering him to pay to her 5s. a week. The order contained, among other recitals, the following: "And whereas the

said John Damarell having been duly served with the said summons, the same having been left at his last place of abode, six days at least before this day, as is now proved before us."

After the defendant had been in America some two months, he was informed that the order had been made, the child having been born on the 29th of October. He had no knowledge of the summons being applied for or issued before he was so informed of it. He swore that for twelve months and upwards before the 29th of October he had no carnal connexion with Emma Fish; but upon this point he was strongly contradicted by the affidavits of Emma Fish and others. He returned to England in March of the present year, and then obtained a certiorari to bring up the order for the purpose of having it quashed.

J. O. Griffits shewed cause against the rule. (He first objected that the rule did not specify any omission or mistake in the order as required by section 7. of the 12 & 13 Vict. c. 45, and called attention to the remarks of Mellor, J., in The Queen v. Purday (1); but the Court overruled the objection on the ground that the order did not appear to be objected to on the ground of any omission or mistake.) The question to be determined is, whether the Court has any power to interfere, even if it should be of opinion that the Justices might more properly have given a contrary decision. The order recites that it was proved to them that the defendant had been duly served with the summons by its being left at his last place of abode. Such service is sufficient under section 3. of the 7 & 8 Vict. c. 101, which enacts, "that after the death of such bastard child, on the appearance of the person so summoned, or on proof that the summons was duly served on such person, or left at his last place of abode six days at least before the petty sessions, the Justices. . . . may adjudge," &c. It is clear upon these words that the Justices had power to enter upon the inquiry and to decide whether it was proved that the summons had been left at the last place of abode of the alleged father. They have decided it, and rightly; but even if they

(1) 34 Law J. Rep. (N.s.) M.C. 4.

were wrong, this Court could not interfere. —(He was then stopped.)

Kingdon, in support of the rule. This order has been made behind the back of the defendant, when he had no knowledge of there being any charge against him. Such a proceeding is against natural justice, and this Court will set the order aside. The Queen v. Davis (2) was a similar case in some respects, and there the rule for a certiorari was refused; but upon the ground that there was nothing in the affidavits to shew that the charge was unfounded. Here the defendant swears that he had no connexion with Emma Fish for more than a year before the child was born, so that the child could not be his unless he has sworn falsely. The real question is, whether the alleged father is in England, or in a position to appear and answer the summons. Here it was impossible that the defendant could appear, as he knew nothing about the proceeding, and was out of the country.— He also referred to Saunders on Affiliation, and to cases cited therein.

COCKBURN, C.J.-The Court is bound by the words of the 3rd section.-[His Lordship read them.]-The proof was sufficient that the summons had been left at the last place of abode of the defendant. Mr. Kingdon asks us to put a qualification upon those words, but I do not see how we can do so. It is very true that the order has been made behind the back of the defendant, when he was on his passage to America, or when he had arrived there, which is certainly more or less inconsistent with natural justice, he having no opportunity of being present at the hearing of the case before the Justices; but, on the other hand, when we remember that the woman is limited to a period of twelve months from the birth of the child within which she must make her application, so that if the father absent himself for that period her remedy against him under this statute would be gone, we cannot but see that it would be most inconvenient to hold that the order could not be made by the Justices. The legislature is in fault in not making provision for the case where the

(2) 22, Law J. Rep. (N.s.) M.C. 143.

father is in such a position, that he should have an opportunity, on his return to England, of shewing that the case ought to be re-opened, or else in not providing that where it is necessary that the service should be effected by leaving the summons at the last place of abode of the alleged father, the time should be extended within which the mother should be at liberty to make the application. By either of such provisions, the present inconvenience might have been obviated; but the statute does not contain any such provision, and we can only decide the question upon the words of the statute. We have only to see whether the summons was shewn to have been left at the last place of abode of the defendant; and when we look at the facts, we find that that cannot be disputed, for the defendant had no place of abode subsequent to the one at Tetcott, which he left before going to America. The decision of the Justices is, therefore, within the very terms of the

statute.

MELLOR, J.-I am of the same opinion. I have had considerable difficulty in reconciling with the principles of justice that a man may be convicted without having had any opportunity of shewing that the conviction ought not to have taken place. But we must look at the particular nature of the offence and the circumstances of the case, and then we find that the Justices have embarked upon the inquiry, and that, though the defendant swears that he had no connexion with the woman for twelve months, she swears the contrary. The case was one which the Justices had to consider, and the proof was before them. I think that the safest way is to abide by the words of the statute.

LUSH, J.-I do not think that we have any jurisdiction to set this order aside, unless we see that it was one which ought not to have been made. The statute does not contain any provision to meet the case of a man who is gone abroad, and is out of the way of being served with the summons. The Justices are, upon proof of the summons being left at the last place of abode, to proceed to adjudicate; they do adjudicate; and what jurisdiction have we to say that they are wrong in making the order? It would be a hardship upon the

Footpath, Driving upon -Conviction General Highway Act (5 & 6 Will. 4. c. 50), s. 72.

Under the 72nd section of the General Highway Act, "if any person shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or shall wilfully lead or drive any horse, ass, sheep, mule, swine or cattle, or carriage of any description, or any truck or sledge upon any such footpath or causeway," he shall for every such offence forfeit and pay any sum not exceeding 40s. over and above the damages occasioned thereby:-Held, that this enactment does not apply to the case of a foothpath simpliciter, but only to such a footpath as is by the side of a road made, &c.

Rule calling upon the prosecutors to shew cause why the conviction should not be quashed.

It appeared that on the 27th of July in the present year the defendant was convicted by two Justices of the borough of Aldeburgh, for that he "unlawfully and wilfully did drive a certain carriage and two horses in, upon and along a certain public footpath there situate, called "the Craig Path," that is to say, between the Moot Hall and Collis's workshop, contrary to the statute, &c., and was adjudged to pay the sum of 21. and certain costs.

It appeared from the affidavits, that the Craig Path was, till within the last ten or twelve years, rough shingle, and formed part of the beach fronting the German Ocean; that it was then improved by the