by death and otherwise, that it is not possible, without the greatest inconvenience, to make them parties to this suit, and that to do so would render it impossible, in fact, to prosecute this suit to a hearing; and that all the said members, except the defendants, have a common interest with the plaintiffs in the subject-matter of this suit, and in obtaining the relief hereby prayed. And the said defendants will sometimes admit that all the members of the said society, who have duly given notice of withdrawal therefrom, have such common interest with plaintiffs; but then they allege that the members of the said society who have not given such notice of withdrawal have not such common interest, and are necessary parties to this suit; charge that such last-mentioned members are more than 100 in number, &c. (repeating the words used before to "suit to a hearing"); and that if the said last-mentioned members have not a common interest with plaintiffs in the subject-matter of this suit, and in obtaining the relief hereby prayed, (which plaintiffs do not admit, but expressly charge the contrary to be the fact), such rights and interests as they have adversely to plaintiffs are sufficiently represented by the said defendants, none of whom have given such notice of withdrawal." The prayer was for an account of all dealings and transactions of the society, and of the defendants as directors and trustees; that all losses by their wilful neglect or default, or their breach of trust, might be ascertained, and they declared liable to make good the same, to be paid by them; an account of the property of the society; the appointment of a proper person to realise and receive the same; the delivery up to the receiver all such property, and all deeds, &c.; an injunction to restrain the defendants from receiving the property; and the payment of the debts and liabilities of the society out of the property, and out of what might be found due from the defendants. All the defendants demurred, for want of equity and for want of parties. each of the others to five shares: that the funds of the society between August, 1848, and September, 1847, were large, and that monies were lent, pursuant to the regulations, repaid, again lent out, and large sums were paid for interest, redemption-money, subscriptions, fines, and other payments: that the defendants, in August, 1846, in obedience, or alleged obedience, to the 28th article, sent to each member a report, part of which was as follows:-"The members will perceive from the balance-sheet that the directors have been obliged to borrow money from the bankers to meet the demands of the members, and that all the subscriptions have been advanced on good security:" that the defendants, in August, 1847, in obedience, or alleged obedience, to the same article, sent to each member a report, part of which was as follows:" The directors report that 2683 shares were subscribed in this society: that of these, thirty-eight shares have been withdrawn and repaid, seven have been forfeited; sixteen and a quarter shares, advanced upon mortgages of property, have been forfeited, and the property taken possession of on behalf of the society; that seventy-four shares have discontinued paying, upon notice of withdrawal, and will be paid off as the subscriptions are received; and 133 shares are continued and paid upon:" that none of the shares of the plaintiffs had ever been purchased, according to the 14th article: that, at the monthly meeting, held 29th September, 1847, the plaintiffs and many other members gave the directors notice in writing, pursuant to the 22nd article, but the defendants refuse to pay the monies payable on those shares: that subsequently many other members gave similar notices: that on the 1st May, 1848, the directors sent a printed circular to the members, which, after stating the losses sustained by the society, proceeded, "The directors do not feel it possible to return more than one-half of the amount subscribed, to be paid in rotation, according to the date of the notices of withdrawal, and to be paid &c.; and that when the society is wound up, any ba- Swanston and Beavan, for the demurrer.-By the 4th lance beyond the sum of 120l. per share shall be divided section of the act 6 & 7 Will. 4, c. 32, the provisions of rateably among those who now withdraw, upon con- the stats. 10 Geo. 4, c. 56, and 4 & 5 Will. 4, c. 40, (the dition that any shareholder who has given notice to Friendly Societies Acts), are declared to be applicable, withdraw may revoke such notice, and be reinstated and to extend to the Building Societies Act; and it is as a shareholder upon paying up his monthly instal- there enacted, (10 Geo. 4, c. 56, s. 27), that all disments, with interest at the rate of 51. per cent. per an- putes arising relating to matters in such societies shall num, but not subject to any fine:" that, at a general be settled by arbitration by justices of the peace: thus, meeting, held the 7th June, 1848, a statement was made by an express legislative enactment, in effect ousting of the losses of the society on the mortgages, and that the jurisdiction of a court of equity. That such dion the following day the directors issued a printed cir-rections have the effect of excluding the jurisdiction of cular, alleging that on the 7th it was resolved unanimously, that the trustees be authorised to offer to those who have given notice to withdraw the sum of 14s. in the pound, to be paid in rotation as they receive the needful funds, such rotation to be in the order that those persons signify their willingness to receive such composition, and to give the trustees a release from all further claims:" that certain shareholders of the society having sued the defendants in the Shoreditch County Court, the defendants, on the 6th July, 1848, circulated a printed paper, which was partly as fol lows:-" Ladies and gentlemen,-The directors and trustees congratulate you upon the recent decision of the Shoreditch County Court, from which it is obvious that no court of law has jurisdiction over the affairs of this society; and, arising out of this inquiry, your trustees have good reason to believe that no court of equity has jurisdiction; and that all differences and disputes must be settled by the simple, cheap, and expeditious mode fixed by acts of Parliament-that of arbitration, according to the rules" &c. The bill then charged various acts of alleged fraud, and then charged as follows:-"That the members of the said society are more than 200 in number, and that the number of the said members is so great, and that the rights and liabilities of such members are so subject to change and fluctuation ordinary tribunals is clear from Crisp v. Bunbury, (8 Evans v. Bacon and Southgate, for the bill.-With respect to the objection of want of equity, it is to be observed that the 10 Geo. 4 only extends to disputes between the society and any individual member of the body in re ference to the rules. In the Court of Exchequer it was held, in Cutbill v. Kingdom, (1 Exch. Rep. 494), that the rule was so confined, and that in such a matter as that now before the Court it was not imperative to have an arbitration. The defendants' counsel had very carefully abstained from shewing any case to support such a proposition as that the effect of the arbitration clause was to oust the ordinary tribunals of the country. As to the objection of parties, in the case of Richardson v. Larpent, which has been cited, the bill prayed an express declaration that the resolution, which some of the members supported, was fraudulent and void, and that, therefore, could not be decided in the absence of any of the members who had assisted at passing it, and who had, therefore, bound themselves by it. The bill seeks to recover a fund for the common benefit of all the mem-powers of which the testatrix was the donee. Charles bers, and stops short of asking a distribution of the funds among the members; and, on the authority of Wallworth v. Holt, (4 My. & Cr. 619), and other cases, some shareholders may represent the others; and even if distribution were actually sought, which it is not, Apperley v. Page (10 Jur. 994; 11 Jur. 278) and Cooper v. Webb (11 Jur. 443) would be authorities to shew that the bill could not be demurrable. three separate sums in the 3l. 10s. per Cents, with 1007. a year Long Annuities, and any other property I may die possessed of, of what nature or kind soever, I leave to my dear brothers, Charles Sayer and Benjamin Sayer, Esqrs., their executors and administrators, upon trust" &c. The trustees were, after payment of several annuities, to apply the residue in manner therein mentioned, and which it is not necessary to state. To this will several codicils were attached, and at the foot of one of these were written the following words:"This will has not been attested, as I intend, if I am spared, to write it out fair." The will was signed and sealed, and the codicils all signed by the testatrix, but none of them were published or declared in the presence of witnesses, nor did any of them refer to any power or Sayer and Benjamin Sayer were named as executors. In June, 1844, the testatrix died, and shortly afterwards the will was proved by the executors named therein. In April, 1845, a suit (Sayer v. Sayer) was instituted in this court for the administration of her estate. The Master, by his report in that suit, found, that, at the date of her will, the testatrix was, under her deceased husband's will, entitled for lifewith power to appoint by deed or writing to be by her duly executed according to law, or by will or codicil to be by her signed, sealed, and published in the presence of, and attested by, two or more witnesses, with remainder over-to the following sums:- one-third of 10,000%. Consols, one-third of 1500l. Reduced, one-third of 50001. New 31. 10s. per Cents, and one-third of 300% Long Annuities; and that she was also entitled at the same time to a life interest in 559%. New 31. 10s. per Cents, and also to 8007. New 31. 10s. per Cents absolutely. The Master had also found that the four le KNIGHT BRUCE, V. C.-I am not sure that this particular bill is not demurrable, on the ground of want of equity. I am not sure that, according to modern authorities, this bill is not so framed as that every shareholder ought to be considered a necessary party. But I do not decide either of these points. Assuming the bill not to be demurrable on the ground of want of equity, and assuming that it is not a bill to which all the shareholders or subscribers ought to be parties, I still think that it is defective for want of parties. I think that neither the plaintiffs nor the defendants (the defendants being all of them directors) effectually re-gacies given to the charities, and the legacy given to present that class of shareholders, or those of the shareholders or subscribers, who have not given notice of withdrawing, the names of those persons not being stated to be unknown to the plaintiffs. I am of opinion, therefore, that this demurrer must be allowed, but that, if the plaintiffs think it worth while, they may have leave to amend, but the costs must be reserved.-Demurrer for want of parties allowed; leave to amend generally, and costs reserved. Judith Innes, widow of Thomas Innes, then deceased, by her will, dated in January, 1833, gave and bequeathed as follows, viz. "To the treasurer for the time being of the Sailors' Home, or Brunswick Maritime Establishment, 1000%., in the 37. per Cent. Consols; or if from any cause that institution is not proceeded in, the above sum is to be appropriated by Captain Robert Elliott, R.N., and Captain George Gambier, R. N., for the benefit of the Sailors' Asylum. I give and bequeath to the treasurer for the time being of the Benevolent or Strangers' Friend Society for Relieving the Sick and Distressed Poor at their own Habitation in London and its Vicinity, 1000l., in the 37. per Cent. Consols; to the British and Foreign Bible Society I leave 5007., in the 37. per Cent. Consols; and the like sum to the Church Missionary Society: all these legacies to be paid within six months after my death, the receipt of the treasurer to be a sufficient discharge for the same. To Harriet Ker Innes, my goddaughter, and the niece of my dear husband, I leave 5007. in the 37. per Cent. Consols, free of legacy-duty, to be paid within six months after my death. The remainder in the 37. per Cents, and Harriet Ker Innes, the goddaughter of the testatrix, were general legacies; but, upon exceptions being taken to this report, the Court, on the hearing of the exceptions, (Sayer v. Sayer, V. C. W., 3rd March, 1848), had decided that the legacies were specific, and that the testatrix had intended thereby to execute the power reserved to her in her husband's will. The present bill was afterwards filed by one of the parties to whom the fund forming the subject of the power was given, by her husband's will, in default of the exercise of the power by the testatrix, charging, that, as the will of the testatrix had not been published and declared or attested, in conformity with the directions prescribed in the power, such power had not been exercised by the donee, and praying a declaration to that effect by the Court, and a transfer to the plaintiff of her aliquot share of the fund to which she claimed to have become entitled in default of appointment by the testatrix. The parties named as defendants to the bill were the said Charles Sayer, as surviving executor of Thomas Innes, the deceased husband of the testatrix, and the parties entitled to participate with the plaintiff in the fund subject to the power, in default of execution of the power, and the secretaries of the several charities named in the testatrix's will. At the hearing of the cause, the principal question was, whether, as the testatrix, by a will not formally executed in the manner prescribed by the power, had shewn an intention to dispose of the property forming the subject of the power, the Court would, in favour of the charities named in such will, aid the defective execution of the power. It was contended, for the plaintiff, that the Court acted upon a different principle, in the case of a charity, from what it did in the case of a wife, child, or creditor. In the latter case, the wife, child, &c. were considered as purchasers; whereas, in the case of the charity, all that was looked at was the intention of the donor of the power, the author of the gift. The intention of the donor clearly was not to give to the charity, except modo et formâ-that is, by an instrument to be executed by the donee in the form prescribed by the power. Piggot v. Penrice, (Prec. in Chan., p. 471, n.), of which the report was imperfect, was the only decision that equity would aid the defective execution of a power in favour of a charity. For the charities it was contended, that the Court would supply a surrender in the case of a grant or devise of copyholds; (Woodford v. The Parish of Parkhurst, Duke, 70, 378; Rivett's case, Id. 74, 366; The Attorney-General v. Downing, Amb. 572; The AttorneyGeneral v. Rye, 2 Vern. 453); and that the same relief would be granted, in the case of a defective execution of a power, as in that of the want of surrender in a grant or devise of copyholds. (Chapman v. Gibson, 3 Bro. C. C. 229; Rodgers v. Marshall, 17 Ves. 297; 2 Sugd. Pow., p. 92, 7th ed.) The cases of The Attorney-General v. Saltwell, (2 Atk. 497); The Attorney-General v. Burdett, (2 Vern. 755); The Attorney-General v. The Skinners' Company, (2 Russ. 407); The Incorporated Law Society v. Richards, (1 Dru. & W. 302); The Attorney-General v. Sibthorpe, (2 R. & M. 107); The Attorney-General v. The Ironmongers' Company, (4 My. & C. 1), were also cited. The Solicitor-General, Rolt, Wood, Faber, Blunt, Glasse, Headlam, Pirie, and Baggalley appeared for the different parties named on the record. as conclusive, was of great weight, supported as it was, in this case, by previous dicta and decisions. The last argument for the charities was grounded upon the principle by which the Court had been guided in the decisions and dicta previously referred to. The principle upon which the Court had acted was this: that if a party, having power by his own act to give property, clearly shewed an intention in writing to give it, there, although the writing, by reason of some informality, was ineffectual for the purpose intended, yet, inasmuch as the party might, by a formal instrument, have carried his object into effect, and inasmuch as he had shewn an intention so to do, the Court would, in favour of a charity, decree in aid of the intention. There was very high authority for saying that this was the law, independently of the statute of Elizabeth, and it certainly had been so since the statute. Finding, therefore, that there was at least one decision in favour of the proposition contended for on behalf of the charities, and that it was supported by the dicta of several judges, the opinions of the text-writers, and the principle upon which the Court had acted, he thought the law must be considered to be so settled; and that, if it was to be altered, it must be by a higher tribunal. COURT OF QUEEN'S BENCH.-HILARY TERM, An Order in Bastardy, having the following Caption "At March 22.-Sir JAMES WIGRAM, V. C., said, that the grant of probate of the testatrix's will by the ecclesiastical court was a conclusive answer to the question, whether the testatrix meant the testamentary papers to operate as a will or not; and that the Court, in Sayer v. Sayer, had decided, that by such will the testatrix had intended to dispose of the property, which she had power to appoint under her husband's will, and thereby to exercise that power. The next question was, whether the Court would, in favour of the charities named in the will, aid the defective execution of the power; and, in considering this, the first point to be looked at was, whether the authorities upon the subject were such as to bind the Court to a particular conclusion. Upon examination of the cases, it appeared that there was one express decision, at least, (Piggot v. Penrice), in favour of what was asked by the charities; and that there were dicta of learned judges, in other cases, concurring with that decision. The question, therefore, was, whether he (the Vice-Chancellor) ought, by a decision of his, to shake that which, ever since the stat. 43 Eliz. c, 4, (if not before), had been considered the settled law upon the point. It could not be denied that there was the highest authority for the proposition, that the surrender of copy holds would be supplied in favour of a charity; and it had been laid down, by an eminent judge, that the execution of a power and a surrender of a copyhold go hand in hand, precisely on the same ground. (Chapman v. Gibson, 3 Bro. C. C. 219). Wherever the Court would supply the surrender of a copyhold, the conclusion followed, that, in an analogous case, it would aid the defective execution of a power; which, by analogy, was a strong authority for the proposition contended for on behalf of the of Lancaster, holden in and for the petty sessional charities. So, in the case of a gift or appointment by division of Haslingden, in the said county, at Hasa tenant in tail, without recovery or fine, it had been de- lingden aforesaid, on the 12th day of December, A. D. cided that the transaction would be supported in favour 1846, before &c., two of her Majesty's justices of the of a charity, though not for a wife, child, or creditor; the peace for the said county. Whereas one Alice Ashworth, Court, in that case, forsome reason or other, carrying the single woman, residing at Newhall-hey, within this rule further in favour of a charity than for a creditor. division, being with child, did, on the 22nd day of OcAnother ground for holding that the charities were en-tober, A. D. 1846, make application to the said W. G., titled notwithstanding the defect in the execution of the one of her Majesty's justices of the peace acting for power, was, that the proposition contended for on their this division, for a summons to be served upon one behalf was referred to, as a settled principle of law, by Henry Whittles, of &c., whom she, being duly sworn text-writers of the highest authority and experience. before the said W. G., upon her oath, stated to be the The opinion of text-writers, though not to be considered | father of the child with which she was then pregnant; at Preston, in and for the county of Lancaster, A. D. On appeal at the Epiphany Quarter Sessions, holden 1847, against an order of affiliation made by two justices of the peace, holding a petty sessions at Haslingden, in the said county, the sessions confirmed the order, subject to the opinion of this Court on the following The following is a copy of the order:— case. "Lancashire, justices of the peace for the county At a petty sessions of her Majesty's to wit. and the said justice thereupon issued his summons to the said Henry Whittles to appear at a petty sessions to be holden on this day for this division, in which the said justice usually acts, to answer her complaint touching the premises: and whereas the said Alice Ashworth hath been lately delivered of a bastard child: and whereas the said Henry Whittles having been duly served with the said summons, and now appearing in pursuance thereof, and the said Alice Ashworth having now applied to us, the justices in petty sessions assembled, for an order upon the said Henry Whittles, according to the form of the statute in such case made and provided, and it being now proved to us, in the presence and hearing of the said Henry Whittles, that the said child was, since the passing of an act passed in the 8th year of the reign of her present Majesty, intituled &c., that is to say, on &c., born a bastard of the body of the said Alice Ashworth; and we having, in the presence and hearing of the said Henry Whittles, heard the evidence of such woman upon oath, and such other evidence upon oath as she hath produced, and having also heard all the evidence tendered on behalf of the said Henry Whittles, and the evidence of the said Alice Ashworth, the mother of the said child, having been corroborated in some material particulars by other testimony, to our satisfaction," &c. [The order proceeded to adjudge Henry Whittles to be the putative father of the child, and ordered that he should pay a weekly sum for maintaining the child, and 18s. for costs.] "Given under our hands and seals at the sions aforesaid. Blackburn holden at Haslingden," and overruled the appellant's objection; and, after hearing evidence in support of and against the said order, it confirmed the same, with costs, subject to a case for the opinion of this Court, whether, under the circumstances above stated, the court of quarter sessions was right in overruling the objection. If this Court be of opinion that the court of quarter sessions was right, the order appealed against and the order of sessions to be confirmed. If of opinion that the court of quarter sessions was wrong, to be set aside. The case was argued in Michaelmas Term*, by Whigham, in support of the order of sessions.-First, there is no misdescription of the petty sessional division. It is sufficient that the division of Haslingden has been, in fact, recognised as a petty sessional division by the justices of the county in quarter sessions, though it has not been formed under the provisions of stat. 9 Geo. 4, c. 43: their adjudication upon that fact is conclusive, though the reasons they assign for it may be defective. The divisions of counties in which petty sessions may be held are not compulsory: the justices may regulate them as they might have done before that statute. Before that statute, the justices in a district of the county might meet in petty sessions at any place they fixed upon. [He referred to 2 Archb. Justice of the Peace, 464, 465, 4th ed., where the origin of petty sessions is shewn.] Again, it is sufficient that petty sessions have been held at Haslingden for a long time. [Coleridge, J. ses-According to your argument, after a petty sessional division had been made, under stat. 9 Geo. 4, c. 43, the justices in the division might, for the convenience either of themselves or of the population in that division, hold sessions at several places within it, and those sessions would become legal; but that would set aside what had been done under the authority of the Legislature.] In this case, the ancient division of Lower Blackburn was not formed under stat. 9 Geo. 4, c. 43; and, therefore, there is no contravention of its provisions. Secondly, it is not open to the defendant to take advantage of a misdescription of the petty sessional division after he has appeared before the magistrates of the division and examined witnesses, and has been adjudged to be the putative father and to pay costs. (Reg. v. Clarke, 8 Jur. 738). [Coleridge, J.-The case says, that if this Court shall be of opinion that the court of quarter sessions was wrong, the order is to be set aside. Wightman, J.-The objection is not to the jurisdiction of the justices, but to the description of the place where they held their sessions.] "WILLIAM GRAY (L. s.) "WILLIAM TURNER (L. s.)" At the hearing of the said appeal, the counsel for the appellant contended, that the order was bad, because it purported to have been made at a petty sessions of her Majesty's justices of the peace for the county of Lancaster, holden in and for the petty sessional division of Haslingden, in the said county, offering to prove by evidence, that there was no petty sessional division of Haslingden, in the county of Lancaster. He admitted that there was a petty sessional division of the county called the division of Lower Blackburn, at several places within which division sittings of the justices at petty sessions had been for some time past in fact held; and that the petty sessions holden at Haslingden, at which the order was made, was one of such petty sessions. But no petty sessional division of Haslingden had been ever formed under the provisions of the act 9 Geo. 4, c. 43, or of the act 6 & 7 Will. 4, c. 114, amending the same. The court of quarter sessions adjudged, that it would take judicial notice of the petty sessional divisions of the said county. It was then agreed and admitted by and between the said parties, appellant and respondent, and recognised by the said Court, that the said William Gray, clerk, and William Turner, Esq., the justices aforesaid, were respectively in the commission of the peace for the whole county of Lancaster, and were respectively residents of and in the township of Haslingden, in the said county; and had before then been long used and accustomed to act, and then usually did act, as such justices as aforesaid, for divers townships in the said county in the neighbourhood of the town of Haslingden, including amongst such townships as well the township of Newhall-hey as the township and town of Haslingden aforesaid, all in the said county of Lancaster. The court of quarter sessions ruled and determined, that, as one of the petty sessional divisions of the county of Lancaster is usually called the division of Lower Blackburn, and known by that name, and as several petty sessions of the peace are held within that division, one of which is held at Haslingden, it, therefore, upon reading the words " a petty sessions holden in and for the petty sessional division of Haslingden,' understood by those words "a petty sessions holden in and for the petty sessional division of Lower Cowling, contra.-The jurisdiction of the justices should appear on the face of the order. In Reg. v. Clarke, (8 Jur. 738), the objection did not appear upon the face of the order. If the description of the petty sessional division is wrong, the quarter sessions cannot, by their recognition of it, make it good. By sect 2 of stat. 7 & 8 Vict. c. 101, the application for an order must be made to a justice of the peace acting for the petty sessional division in which the woman resides, and the person alleged to be the father of the child must be summoned to appear at the petty sessional division in which such justice usually acts; and, accordingly, the form of the order No. 7 in the schedule to stat. 8 & 9 Vict. c. 10, states, that the woman resides within the division in and for which the petty sessions is holden. First, if the order is treated as made at a sessions holden for the petty sessional division of Haslingden, it appears that the woman did not reside within it, because Newhall-hey and Haslingden are different townships. Secondly, the court of quarter sessions do not say that there is any petty sessional division of Haslingden, but that they understood the petty sessions as holden in * Nov. 15, before Lord Denman, C. J., Coleridge, Wightman, and Erle, JJ. and for the petty sessional division of Lower Blackburn at Haslingden; and it does not appear that Newhall-hey is within the division of Lower Blackburn. [Erle, J.-By sect. 10 of stat. 8 & 9 Vict. c. 10, the term "petty sessional division" shall be taken to include any division in which one or more petty sessions have been or shall be usually held. The essence of a sessional division is the habit of holding sessions for that place. Coleridge, J.-It is not stated in this case, that the justices for the division of Lower Blackburn have usually acted at Haslingden. There are cases in which all the justices of a sessional division must be summoned as for granting licenses. It is important for the public to know what the petty sessional divisions are.] In Rex v. The Justices of Devon, (1 B. & Ald. 588), it was held, that an appointment of an examiner of weights and balances, under sect. 1 of stat. 37 Geo. 3, c. 143, at a petty sessions for a sub-division, made by two justices, without the assent or knowledge of the other justices of the division, was illegal. that it is one which he is bound to obey; and, however technical and beside the merits an objection of this sort may seem in any particular instance, the principle is important; and the principle cannot be maintained with the steadiness which is essential to its working carefully, if we are to be moved to strain the law and seek to evade it, with a view to give effect to what we deem the justice of any particular case. On this ground alone the rule might well be made absolute. But, further than this, we cannot agree that in any sense, the loosest that can be given, do these facts warrant us in holding, that any petty sessional division of Haslingden existed; and the fallacy on which the argument rested lies in confounding the holding of a petty session with the existence of a petty sessional division. Wherever two magistrates meet within the limits, and by virtue of their commission, and transact such a business as they are competent to transact there, they hold a petty session-if it be not a general quarter or special session; but the place in which they so meet, if they Cur. adv. vult. meet there ever so many times, does not thereby become Lord DENMAN, C. J., now delivered the judgment of a petty sessional division; nor by any act or acts of the Court-In this case no magistrates can have juris- their own can they make it so, if such place be already diction originally but those who "act for that petty within the ambit and parcel of a division already resessional division of the county in which the woman cognised. To this point the language of Bayley, J., in who applies for the summons resides." The 10th sec-Rex v. The Justices of Devon, (1 B. & Ald. 588), is very tion of stat. 8 & 9 Vict. c. 10, says, that "a petty ses- important. There it appeared that two magistrates, sional division," in the 7 & 8 Vict. c. 101, from which without the assent or knowledge of the other magisthese words are taken, may mean two things-either trates of an existing division, attempted to create a any division in which one or more petty sessions have smaller one within it, and they had gone on holding been or shall be usually held, or any division for the sessions there for five or six years. Bayley, J., said, holding of special sessions framed under the provi- (p. 592), "The body of magistrates in a large division sions of stat. 9 Geo. 4, c. 43, or stat. 6 Will. 4, c. 12. cannot be subdivided in this way: the subdivision should at least be made by the consent of the whole body at their petty sessions. For, if these two magistrates may thus subdivide themselves, any other two might do the same; and so the whole division might be separated into small districts, and great inconveniences might be produced." In the present case, the order sets forth an application by a woman residing at Newhall-hey, "within the division of Haslingden," to a magistrate "acting for that division." And in the caption the order is stated to be made "at a petty sessions held in and for the petty sessional division of Haslingden." Upon appeal, it was objected that there was no such petty sessional division, and consequently that the order was, on the face of it, made without jurisdiction. The court of quarter sessions properly held, that they would not require, or indeed receive, evidence as to the petty sessional divisions of their county, but would take judicial notice of them. Then, as to this, and as to the fact of the limits within which the justices making the order resided and acted-upon the agreement of the parties, and the recognition of the sessions, it was taken, and is to be taken by us now, that the justices were residents in the township of Haslingden; that they usually acted for divers townships in its neighbourhood, including as well Newhall-hey as the town of Haslingden itself; that there is a petty sessional division called the Lower Blackburn Division, within which several petty sessions are held, and one of them at Haslingden. Upon these facts, the sessions have not found that there is a petty sessional division of Haslingden: on the contrary, they may be said to find that Haslingden and its neighbourhood are within the ambit and form part of another recognised petty sessional division; but they have determined, that, by the words, "a petty sessions holden in and for the petty sessional division of Haslingden," they understood "a petty sessions holden in and for the petty sessional division of Lower Blackburn holden at Haslingden." On this ground alone they confirmed the order, and say, that, if they are wrong, the order is to be set aside. It was hardly contended on the argument, that this mode of supporting the order could be maintained. Jurisdiction must appear on the face of an order, not so much for the satisfaction of the superior Court before whom it may be brought, but that the party who is to be affected by it may see on the face of the document | This was said before the passing of the 9 Geo. 4, c. 43; and the argument is much stronger since the passing of that act; for that act provides a regular mode by which new divisions may be made, within which (by sect. 6) "all matters and things which, by law, then were, or thereafter might be required to be or which then were usually transacted or determined within the division within which the same shall have arisen, or the parties therein concerned inhabit or exercise their trade or calling, and by or before one, two, or more justices of the peace dwelling or usually acting within the same, shall be transacted and determined." These words cannot be limited, in their construction, to the formation of merely special sessional divisions; and they certainly are not so limited in practice. If we are to look to the policy of the thing, few things can be more mischievous than to encourage the unauthorised formation of petty sessional divisions, to be attended by a small number of magistrates; but, as regards the case in hand, there seems no evidence that such a thing has been thought of or attempted. The two justices clearly thought themselves acting in and for the larger and recognised division: they had a right to hold their sessions for that division where they have held it; but they have, or their clerk has, made, in the particular instance, a mistake in the name of the division. When the bastardy acts speak of a division within which a person dwells, or a magistrate usually acts, they clearly speak of a district with some known limits; but who can say that here there is any division of Haslingden with any such limits? It is clear that Haslingden is but a place within another division having limits, in which division petty sessions for that whole division are held at more than one place, Haslingden being one of those places. |