The examinations in support of the order of removal showed relief given by the appellant parish to the husband of the pauper, relief to the pauper as widow, and a former order of removal, executed and not appealed against. The first ground of appeal denied the settlement of the husband of the pauper, and the settlement of the pauper herself. The fifth ground of appeal complained that a copy of the former order had not been sent. The other grounds of appeal raised specific issues on the relief and the chargeability. At the trial the respondents proved that a copy of the former order had been sent, and abandoned their case on the relief. The sessions held that as the existence of the former order was not traversed, the respondents were entitled to judgment. Upon appeal against an order or warrant of two justices of the peace of the city and county of Norwich, applied for and obtained on the 27th day of November, A. D. 1847, by the governor, deputy-governor, and guardians of the poor of that city, for the removal of Elizabeth Smith, the widow of John Smith, deceased, and Susanna their child, from the parish of St. Peter Mountergate, in the said city of Norwich, to the said parish of St. Mary in Bungay, the order was confirmed by the sessions, subject to the opinion of this court on the following

the 23rd day of August, A. D. 1831, intituled "An act for the better management of the poor in the said several parishes and hamlets in the city of Norwich and county of the same city," the said parishes not being severally charged with the maintenance of their own poor. And the said act is to be taken as forming part of this case. The examination upon which the said order was made, and the grounds of appeal were also to be taken as forming part of this case. At the hearing of the said appeal, the respondents having abandoned the settlement by relief alleged in the examination, were called upon by the appellants to put in evidence the former order of the 25th October, 1839, received in the examinations of the said Elizabeth Smith and Stephen Wilde, that the said former order was not traversed in their but they, the respondents, declined to do so, contending grounds of appeal. On the part of the appellants it was contended, that their first ground of appeal, containing a general denial of the settlement of the said Elizabeth Smith and her said daughter in the appellant parish must be construed as a denial of the facts alleged in the said examination as evidence of such settlement; the court held that the respondents were right, and refused to call upon them to produce the said former order or to give any evidence of settlement. In the examination of John Lock, relieving officer to the said governor, deputygovernor, and guardians, it is stated that the said Elizabeth Smith, and Susanna her child, then lately came to inhabit in the said parish of St. Peter Mountergate, in the said city of Norwich and county of the same city, and had become and then were actually chargeable thereto. He, the said John Lock, having relieved the said Elizabeth Smith, in the said parish, with three shillings and sixpence out of the funds, and by the direction of the said governor, deputy-governor, and guardians, and the respondents relied upon that statement as evidence of the chargeability of the said Elizabeth Smith and her said daughter, to their said parish of St. Peter per Mountergate. On the part of the appellants it was objected, under their sixth ground of appeal, that such relief being given out of the common fund raised under the provisions of the act above referred to, did not render them chargeable to the said parish of St. Peter per Mountergate, as in the examination of the said John Lock is alleged; but this objection was overruled by the Court of Quarter Sessions.

If the Court of Queen's Bench should be opinion1st. That the Court of Quarter Sessions were wrong in not calling upon the respondents to put in evidence the order of the 25th of October, 1839; or,

2ndly. That it does not sufficiently appear in the examination of the said John Lock that the said Elizabeth Smith, their said daughter, was at the date of the said order of the 27th day of November, 1847, chargeable, or ever had been chargeable, to the respondent's parish, that order is to be quashed. But if the court

α

should be of the contrary opinion on both of these points, it is to be confirmed.

The complaint and examinations upon which the order was made, were as follows:

The information and complaint of John Lock, relieving officer to the governor, deputy-governor, and guardians of the poor of the city and county of Norwich, and liberties of the same, made by the direction and on behalf of the said governor, deputy-governor and guardians, and taken upon oath at the Guildhall, of and in the said city, before me, the undersigned, George Lovick Coleman, mayor, and William Freeman, Esquires, two of Her Majesty's justices of the peace in and for the said city and county, the 27th day of November, 1847, touching the inhabitancy of Elizabeth Smith, widow, and Susanna, her child, in the parish of St. Peter per Mountergate, in the said city and county, and their having become and now being chargeable to the same parish.

The said John Lock saith, that Elizabeth Smith, widow, and Susanna, aged twelve years, her child, lately came to inhabit in the parish of St. Peter per Mountergate, in the said city of Norwich, and county of the same city, and have become and now are actually chargeable thereto; he this complainant having relieved the said Elizabeth Smith in the said parish with 3s. 6d. out of the funds, and by the direction of the said governor, deputy-governor and guardians, not having any legal settlement therein, and not having resided in the said parish without relief for five years next before the making of this complaint, and have not become chargeable in respect of relief made necessary by sickness or accident, and this complainant, on behalf of the said governor, deputy-governor and guardians, prayeth that the said Elizabeth Smith may be examined touching the place of her last legal settlement, and such further proceedings had therein as the law directs.

Elizabeth Smith saith, that she is forty-seven years of age. That she is the widow of John Smith, paper maker, deceased, to whom examinant was married at the parish of St. Peter per Mountergate, in the said city, in or about the month of March, in or about the year 1820, by her then name of Elizabeth Holly, single woman, and who died on the 12th day of April in the year 1835, in the parish of St. Michael, at Thorn, in the said city, by whom she had five children, born in wedlock, one of whom named Susanna, aged twelve years, is living with examinant, and hath done no act whatever whereby to gain a settlement since the death of her said late husband. That the place of the last legal settlement of the said John Smith, examinant, said late husband, was in the parish of St. Mary in Bungay, in the county of Suffolk. That the said John Smith was many times since his marriage to examinant relieved by the overseers of the poor of the said parish of St. Mary in Bungay, as belonging thereto, when residing in Norwich. That on the 25th day of October, A.D. 1839, an order so dated and now produced was made by and under the hands and seals of Horatio Bolingbroke and Anthony Hudson, Esquires, two of Her Majesty's justices of the peace in and for the said city and county of Norwich, for the removal of examinant, as the widow of the said John Smith, and William, Richard and the said Susanna, their children, from the said parish of St. Peter per Mountergate, to the said parish of St. Mary in Bungay, under which said order examinant and the said children were,

on the 18th day of November, 1839, removed from the said parish of St. Peter per Mountergate, to the said parish of St. Mary in Bungay, by Mr. Stephen Wilde, now present, and by him delivered to one of the overseers of the said parish of St. Mary in Bungay, and there was no appeal against the said order of removal. That the examinant hath since been relieved by the board of

guardians of the Wangford Union, as the widow of the said John Smith, and as belonging to the said parish of St. Mary in Bungay, with three shillings and sixpence per week, until about one year and a half since, examinant of St. Peter per Mountergate. residing all the time she was so relieved in the said parish

That examinant and said Susanna her child are now

inhabiting in and chargeable to, and relieved in, the said parish of St. Peter per Mountergate, by the governor, deputy-governor and guardians of the poor of the said city and county of Norwich and liberties of the same, but examinant hath not resided in the said parish without relief for five years next before the taking of the examination.

Stephen Wilde saith, that on the 18th day of November in the year 1839, by virtue of an order which is now produced, bearing date the 25th day of October, in the year 1839, under the hands and seals of Horatio Bolingbroke and Anthony Hudson, Esqrs, two of Her Majesty's justices of the peace in and for the said city and county, he, this examinant, as removal officer to the said governor, deputy-governor and guardians, removed Elizabeth Smith now present, widow of John Smith, pipe-maker, and William, Richard and Susanna, their children, from the parish of St. Peter per Mountergate, in the said city and county, to the said parish of St. Mary in Bungay, in the county of Suffolk, as the place of their last legal settlement, and there delivered them, together with a duplicate of the said order, to Mr. Reynolds, one of the overseers of the poor of the said parish of St. Mary in Bungay, who paid examinant, as the officer executing the said order, the sum of fifteen shillings, for the costs of relief and maintenance of the said paupers under the said order.

That examinant hath seen the said Horatio Bolingbroke and Anthony Hudson write, and is well acquainted with their handwritings, and that the names, H. Bolingbroke and A. Hudson, set to the said order, are of the proper handwriting of the said Horatio Bolingbroke and Anthony Hudson, and that the said Horatio Bolingbroke and Anthony Hudson were, at the time of making the said orders, respectively justices of the peace for, and acting in and for the said city and county of Norwich. The following were the grounds of appeal:

1st. Because John Smith, the late deceased husband of the said Elizabeth Smith, had not, at the time of his decease, nor ever had any settlement in our said parish of Bungay St. Mary, nor had the said Elizabeth Smith, or her said daughter, at the date of the said order, any settlement in our said parish.

2ndly. Because it does not appear in or by the ex aminations accompanying the said order, or any or either John Smith, at the time of his decease, or the said of them, by legal or sufficient evidence, that the said Elizabeth Smith and Susanna their child, at the date of the said order had any settlement in our parish of Bungay St. Mary.

3rdly. Because the said John Smith in his life time, or the said Elizabeth Smith, since his decease, were not, nor was either of them relieved by our said parish of Bungay St. Mary, as is alleged in the examinations accompanying the said order, or if they were so relieved, it was under a mistaken notion that the said John Smith had acquired a settlement in our parish of Bungay St. Mary.

4thly. Because no sufficient legal evidence of relief having been granted to the said John and Elizabeth Smith, in the life time of the said John Smith, or to the said Elizabeth Smith, since his alleged decease, appears upon the examinations accompanying the said order, nor are the dates or times at which such relief (if any) was given, or the nature of such relief set forth with sufficient certainty or particularity, and because, although

it is stated that the pauper, Elizabeth Smith, had been relieved by the board of guardians of the Wangford Union as the widow of the said John Smith, since the year 1839, it does not appear upon the said examinations, or any of them, that the parish of St. Mary in Bungay aforesaid, at the time of such relief being administered, was part of the said Wangford Union, nor that such relief, if given, was with the knowledge or assent of the parish officers for the time being of our said parish.

5thly. Because it is alleged in the examinations accompanying the said order, that an order of removal, bearing date the 25th day of October, 1839, was made by Horatio Bolingbroke and Anthony Hudson, Esqrs., two of Her Majesty's justices of the peace, directing the removal of the said Elizabeth Smithi and Susanna her child, to our said parish, but no copy of such order of removal (although it formed part of the evidence upon which the present order of removal was founded), was forwarded to or received by us.

6thly. Because the notice of chargeability accompanying the said order of removal of the 27th day of November last, is not duly signed as by law required, and no sufficient or legal evidence of the chargeability of the said Elizabeth Smith and her said child, or either of them, was produced to the justices making the said last-mentioned order, and because the jurat of the deposition of the said Elizabeth Smith is informal and insufficient in this, &c., and the jurats to the several depositions of the said Elizabeth Smith and Stephen Wilde are both defective in not containing the date on which they were sworn, as required by law, and because the said Elizabeth Smith and her said child was not chargeable to the said parish of St. Peter per Mountergate at the date of the said order.

7thly. Because the said order of removal is bad in this, that although it is stated that the said Elizabeth Smith, &c., lately came to inhabit, it is not averred that they were, at the date of the said order, inhabiting in the said parish of St. Peter per Mountergate.

8thly. Because the said John Smith and Elizabeth Holly were not married at the parish church of St. Peter per Mountergate, at the time and in manner mentioned in the depositions of the said Elizabeth Smith, or if they were so married, such marriage is not duly proved in the depositions accompanying the said order, nor is the birth and legitimacy of the said Susanna, her child, duly shown by such depositions.

in

9thly. Because the said Elizabeth Smith has resided your said parish of St. Peter per Mountergate, for five years, &c., and it does not appear upon the said depositions, &c., whether the relief (if any) alleged to have been granted to her and her child or children, was or not rendered necessary by sickness or accident, or whether such relief formed part of a bona fide charitable gift, nor is any ground laid in such depositions for the reception of secondary evidence thereof.

Pashley and Bulwer, in support of the order of sessions. -As to the question of chargeability: The Norwich Acts, as well that formerly in operation as that which now regulates the county of the city and the liberty of the same, have been under the consideration of this court, and it is beyond dispute that whatever the rights or liability of the several parishes subject to the act may be in respect of one another, no alteration is thereby made in the relations of any one of them to a foreign parish: (R. v. Wymondham, 6 T. R. 552; R. v. St. Michael at Thorn, 6 T.R. 536; R. v. Forncett St. Mary, 18 L. J. 125, M. C.; 3 Bit. & Par. New Mag. Cas. 129.) The question is this: given the chargeability, who may set the law in motion to fix the burden of it on the parish of the settlement? The act which distributes the burden until the settlement is adjudged among a certain number of rate-paying dis

tricts, between which it creates a statutory contract in respect of their poor, and a common fund for supporting them, makes no alteration in the mode by which the common fund is to be relieved from costs, which, but for the act, would be borne by one only of the contributing districts; and that one must set the law in motion as if the act had not passed.

PATTESON, J.-That is so. An argument that would support the opposite view would also show that there could be no removal from any parish within the operation of the act.

Pashley and Bulwer.-As to the second point: The question really is, whether the order not appealed against has been left untraversed by the ground of appeal? The other side will rely on R. v. Bedingham (5 Q. B. 653), where evidence was admitted that the relief relied on had been given by mistake, but in that case the general traverse would apply to nothing else. So in R. v. St. Giles's, Colchester (17 L. J. 148, M. C.; 3 Bit. & Par. New Mag. Cas. 6); the only one was on the birth settlement. This case, however, is governed by R. v. Staple Fitzpaine (2 Q. B. 488); R. v. Birmingham (8 Q. B. 410); R. v. Widdicombe-in-the-Moor (9 Q. B. 894; 2 New Mag. Cas. 13); and R. v. Watford (9 Q. B. 626; 2 New Mag. Cas. 13.) They have set up various facts as evidence of a settlement; one of them is an order not appealed against; they traverse several of them; they do not traverse the order; they admit it therefore.

ERLE, J.-Is there any instance of a general denial being held inoperative when many facts had been denied, and one quite conclusive as to the settlement was left undenied? Are objections to certain pieces of evidence to be conclusive against the general denial, and to render the appeal futile ? What was the use of telling the respondents that the relief was disputed if an order of removal executed and not appealed against was admitted?

Bulwer. That is quite consistent with the hypothesis that they intended to set up a subsequent settlement, or that the relief had been given by mistake, or that the appellants intended to test the respondents by sanctioning the objection that no copy of the order had been sent. He also referred to R. v. Ellesmere (18 L. J. 181, M. C.; 3 Bit. & Par. New Mag. Cas. 163); R. v. Whitley, Upper (11 A. & E. 90; R. v. St. John's, Margate (1 Q. B. 252.)

Palmer and J. Hillam Mills, contrà.-The first point is conceded. As to the second, the examination sets up relief to the husband, relief to the pauper, and a former order unappealed against, but no settlement. There are specific traverses of some of these facts, and a general denial of the conclusion which the magistrates removing drew from all, or some, or any one of them. That is the proper mode of calling on the respondents to set up the settlement on which they rely; in other words, it is the proper mode of traversing the order, if that is relied on to make out the settlement. At the trial the case by relief was abandoned; the other objections, therefore, which, though specific, did not point at the order, must be treated as struck out. The case of R. v. Staple Fitzpaine does not apply, because the question there was, whether a general as well as a special demurrer to the examination permissible. In R. v. Widdicombe-in-the-Moor, another settlement was set up. This case is within R. v. Bedingham and R. v. St. Giles's, Colchester. The meaning of an objection to the settlement itself is plain from R. v. Chilverscoton (8 T. R. 178.)

was

PATTESON, J.-The first ground has been properly conceded. As to the second, I think that the sessions were right. The examination does not state any settlement at all; it sets forth certain facts, none of which constitute a settlement, though they are evidence that a settlement exists. There is no ground of appeal which denies the existence of the former order; it is only the

inference from it, the settlement, that is denied. Consistently, then, with the case of R. v. Bedingham, in which evidence was properly offered that the relief had been given by mistake, evidence might in this case have been given to take off the effect of the former order not appealed against. In that case, however, the relief itself could not have been denial; and so in this case, the fact of the order could not be denied. If the existence of the order could not be denied, it was unnecessary to prove it. I have, however, some doubt whether the rule laid down by Lord Denman in R. v. Birmingham applies; for there are no specific grounds of appeal against the order itself, and, therefore, if this general ground of appeal applied to the existence of the order, it might have been gone into, but I do not think that it does.

COLERIDGE, J.-I also am of opinion that the sessions were right, and upon that question I have nothing to add to what has been said by my brother Patteson. I am, however, very sorry that he has expressed any doubt that the application of a rule which I regard as one most wholesome, carrying out the intention of the Legislature, and not to be frittered away by argument. It was said by Mr. Palmer, who admitted the authority of R. v. Staple Fitzpaine, that it did apply in most cases; but he said that, in this case, as the relief was abandoned at the sessions, the grounds of appeal, raising specific issues thereon, must be treated as struck out. It is, however, conclusive, that the time of service, and not the

time of trial, is the time at which grants of appeal are to be construed. He then says, that as the examination only states evidence of the settlement, the denial of the settlement lets in the denial of the evidence. I say that is not so; and that if the evidence states many grounds of settlement, and the grounds of appeal dispute some only of them, the grounds of settlement, not denied, are admitted. If that is not so, specific objections would be not only useless, but worse than useless, for they would be traps. It may be said there is a distinction in this case, because one of the pieces of evidence not denied is quite conclusive as to the settlement; and if that be admitted it would be useless to deny the others. I do not assent to that; for though an order made five years ago may not have been appealed against, the settlement which it adjudges may not be the settlement now. Again, as to this very order, there is a specific objection that a copy of it was not sent, so that the other side may have been misled; and further, a subsequent settlement might have been set up. Were it otherwise, however, I should still stand on the importance of the general rule; and, as the decision in these cases is about to pass from us, I do more willingly express my hope that the courts below will inflexibly adhere to it.

ERLE, J.-I have had considerable doubts in the course of the argument; but they are not sufficient now to make it my duty to differ from my learned brothers. It is, in my judgment, most important that effect should be given to the intention of the party making the statement; and I find it very difficult to say, that because there is a denial of specific parts of the evidence, there is an admission of the others not specifically denied. I should be very loth to say so when I find a general denial of all, the general rule of construction certainly being, that effect ought to be given to the declared intention of the parties. In this case, however, after the series of decisions referred to, as the appellant does deny some things in a very remarkable manner, as he raises a great number of very specific issues; and, as if he had followed the frame of his other objections, he would have denied that there was evidence of the order, instead of denying that a copy had been sent,-I do not feel called upon to differ. I am, however, very anxious to enforce the principle, that all documents ought to be

After entering and respiting an appeal against an order of removal, the appellants gave the respondents_notice of abandonment. The respondents then made a demand for costs, which the appellants refused to pay. The respondents then gave notice that they should attend at the sessions to which the appeal was respited. They did so attend, and upon their application, in the absence of the appellants the sessions made an order confirming the order of removal, and directing the appellants to pay costs.

Held, that the sessions in making that order had not so far exceeded their jurisdiction as to call upon the court to quash it.

A rule had been obtained calling upon the churchwardens and overseers of the township of Parr in the county of Lancaster, to show cause why an order of sessions, made at the Lancashire Michaelmas Sessions, 1848, confirming an order of removal from the said township to the parish of Over, in the county of Chester, made on the 2nd of May, 1848, and ordering the appellants to pay to the respondents the sum of 171. 13s. 10d. for their costs, should not be quashed.

The affidavits upon which the rule was obtained disclosed the following facts:-On the 29th of May, 1848, notice of appeal against the above-mentioned order of removal had been served upon the respondents, but without any grounds of appeal; on the 8th July following, notice was given by the appellants of their intention to enter and respite the appeal at the ensuing sessions; and at the same time the respondents were requested to meet the appellants at Kirkdale with a view to a settlement; on the 12th of July the appellants entered and respited the appeal to the next Michaelmas Sessions; the parties met and agreed that the appeal should be abandoned on payment of costs; on the 15th of September notice of abandonment was given by the appellants; and thereupon, on the 21st of the same month, the respondents sent in a bill of costs, amounting to 31. That amount was disputed; and in consequence of that dispute the respondents gave notice that they should attend at the Michaelmas Sessions and apply for a confirmation of the order. On the 1st of November they attended accordingly at Kirkdale, and the appellants not appearing the order was confirmed with costs; and 177. 13s. 10d. awarded as the costs of the appeal.

The order having been removed by certiorari, and the above-mentioned rule having been obtained,

Cowling (a) showed cause.-The objection taken to this order is that the sessions had no jurisdiction to make it; because no new notice of appeal and no grounds of appeal had been served fourteen days before the Michaelmas Sessions; nor any appeal entered at those sessions; nor any proof given of the service of a notice of appeal; but the answer is that those matters do not affect the jurisdiction. The appeal had been regularly entered and respited by the appellants themselves; the sessions, therefore, were seized of the appeal; their jurisdiction

(a) November 28, before Patteson, J., and Erle, J.

had attached; and therefore they had power both to confirm the order and award costs. The appellants had notice and should have attended at the sessions; and then they might have obtained an entry that the order was confirmed not upon the merits. But as to the costs it is abundantly clear that the sessions had power to order them under 8 & 9 Will. 3, c. 30, s. 3, which is still in force. [PATTESON, J.-How are they to get their costs except by going to the sessions?] They cannot. The case of R. v. Stoke Bliss (6 Q. B. 162), will be relied upon; but there the respondents had entered the appeal, after the notice of appeal had been countermanded; and that of course was wrong. The respondents could have no right to enter an appeal against their own order.

Townsend, contrà. A most unreasonable demand for costs was made upon the appellants, which they were right in resisting; and they were not bound to attend at the Michaelmas Sessions. That court had no authority to hear and determine the appeal, because no ground of appeal had ever been given; the appellants could not be heard (4 & 5 Will. 4, c. 76, s. 81); and it is a first principle that a court which cannot hear cannot determine. Yet their order, confirming the order of removal, is a conclusive adjudication of the settlement; and the costs might have been given without it. The 8 & 9 Will. 3, c. 30, s. 3, expressly authorizes the sessions to give costs where notice of appeal has been served, though the appeal is not afterwards prosecuted. [PATTESON, J.-The new statute, 12 & 13 Vict. c. 45, s. 5, contains a similar provision.] It was not necessary to make any order, as to the subject-matter of appeal, in order to give costs to the respondents: R. v. Stoke Bliss is quite in point. In R. v. Cheshire (8 Ad. & Ell. 398) the sessions quashed an order, although they had decided that there was no notice of appeal; and the court, although refusing to interfere on some grounds peculiar to that case, expressed no doubt that the sessions had done wrong. In R. v. Oundle (2 Gale & D. 77) the court held that after an order of removal had been confirmed on appeal, because no grounds of appeal were given, the sessions were right in dismissing a second appeal. This is the same case, and therefore the order of sessions will be conclusive against the appellants, although in truth as between the appellants and respondents there was no appeal. [PATTESON, J.-Then how are the appellants prejudiced by the confirmation of the order? ERLE, J.-An order unappealed against is quite as conclusive as an order confirmed.] In R. v. The Justices of the West Riding (Sheffield v. Crich) (5 Q. B. Rep. 1), the court ordered the entry of an appeal by respondents, and of the order thereon to be erased from the records of the sessions, as it might prejudice the appellants upon an appeal against the removal. (He also referred to 4 Burn's Justice, 124; D'Oyl. Ed.) [ERLE, J.-There cannot be two appeals, one against the order, the other against the removal.] R. v. Macclesfield (3 Bit. & P. New Mag. Cas. 199). [ERLE, J.—That was decided on the ground that the first appeal was a nullity.] So here there was no notice of trial; the respondents were not therefore called upon to attend at the sessions at all, nor were the appellants; and unless both parties are heard a judgment cannot bind. [ERLE, J.-I believe that by the practice of many sessions after an entry and respite no notice of trial is required: (see R. v. The Justices of Surrey, 18 L. J. M. C. 175; 3 Bit. & P. New Mag. Cas. 159.) PATTESON, J.-You admit that as far as the costs are concerned the order is right?] No; the awarding of costs is merely ancillary to the confirmation of the order of removal; and if the latter part is without jurisdiction, the whole is bad: (R. v. Stoke Bliss, cited supra.) [ERLE, J.-That case proceeded upon the defect in entering the appeal.] The decision did not rest upon that. (He referred to the report in 1 New Sessions Cases, 267.) The question really is, whether the appel

lants are not at liberty to abandon their appeal; if they are, they had effectually done so, and could not have further prosecuted it, without giving fresh notice.

Cur. adv. vult.

PATTESON, J., now delivered the judgment of the court. In this case the appeal had been duly entered and respited after notice to the respondents, and the appellants subsequently gave notice to the respondents that they abandoned the appeal, but as the appellants had not paid the costs, the respondents had a right to apply for them at the next sessions under the act of 8 & 9 Will. 3, c. 30, s. 3. Under these circumstances, a judgment that the appeal be dismissed and costs be paid would have been right, and the judgment that the order be confirmed was an excess of authority, but we think that the order cannot on that account be quashed, as the costs would be the same whether the appeal was dismissed or the order confirmed, and the rights of the parties are not affected by the entry that the order was confirmed. In Reg. v. Stoke Bliss, the appellants, after notice of appeal against the order, countermanded the notice. Under these circumstances, an entry of the appeal by the respondents, and a judgment that the order be confirmed was a material excess of jurisdiction, as the right of the appellant to appeal against the removal was thereby taken away, and the entry of the appeal by the respondents is not shown to have been justified. That case is, on these grounds, substantially different from the present. The rule, therefore, for quashing the order of sessions must be discharged. Rule discharged.

COURT OF QUEEN'S BENCH.

July 5, 1849.

AYRTON v. ABBOTT.

Mortuary-Jurisdiction of justices-7 & 8 Will. 3, c. 6 -Validity of order-Admissibility of evidence-Complaint.

Justices have no jurisdiction, under the 7 & 8 Will. 3, c. 6, to order payment of a mortuary, the words "obla⚫ tions, obventions or offerings," not including mortuaries.

An order to pay 10s., under that statute, as the amount of "oblations, obventions and other customary dues and payments due and payable," may be explained by evidence, showing what was the real subject of the complaint; otherwise it would be bad on the face of it for including "other customary dues and payments.' Semble, that an information or complaint, under that statute, need not negative that either of the magistrates to whom it was made was patron of the church or chapel, or interested in the tithes, offerings or oblations. Trespass for breaking and entering the plaintiff's shop, and seizing, taking, distraining and detaining certain pieces of cloth of the plaintiff's.

Plea-Not guilty "by statute."

At the trial, before Rolfe, B., at the Spring Assizes at Lancaster, 1847, a verdict was taken for the plaintiffs, damages 40s., subject to the following special case :—

The plaintiffs are the executors of John Watson, who died at Colne, in the parish of Whalley, in the county of Lancaster, on the 13th of April, 1844, leaving personal assets of the value of 401. and upwards, after payment of his debts.