Q. B.] REG. V. THE HIGHWAY BOARD OF KINGSBRIDGE; ex parte CORNISH. Sherford in respect of the said sum of 2641. 16s. 2d. was 10. 16s. 5d., which sum was comprised in the amount charged upon the said parish under the head of salaries and common charges in the annual statement, showing the receipts and expenditure of the board. The turnpike roads of the Kingsbridge and Dartmouth trust pass through the parish of Sherford. At the hearing of the said appeal at the quarter sessions aforesaid the justices gave judgment for the appellant, but without costs, and found that the opposition of the board to the Bill was bonâ fide, and the result beneficial to the district. The question for the court is, whether the item of expense aforesaid charged to the separate account of the parish of Sherford was incurred in respect of a matter upon which the board had no authority by law to make any expenditure whatever. If the court should be of opinion that such item of expense was so incurred, the judgment of the court of quarter sessions is to be affirmed. If the court should be of the contrary opinion, the judgment of the court of quarter sessions is to be reversed. B. ANDREWS, Chairman. By sect. 32 of the 27 &.28 Vict. c. 101 (Highway Act 1864), it is enacted (inter alia) that— The salaries of the officers appointed for each district, and any other expenses incurred by any highway board for the common use or benefit of the several parlshes within such district shall be annually charged to a district fund to be contributed by and charged upon the several highway parishes within such district, in proportion to the rateable [Q. B. other expenses incurred by the highway board for the common use or benefit of the several parishes within such district shall be annually charged to a district fund." [LUSH, J.-That means expenses ejusdem generis with those before mentioned. MELLOR, J. -I cannot see anything which contemplates such an expenditure as this. It is a serious amount, and not to be incurred lightly. LUSH, J.-I can understand the reasonableness of such an expense where it is incurred for the common good of all the parishes; but here it would be of no benefit at all to some parishes; only those parishes through which the turnpike road passes would be affected; as regards the other parishes they would be in no other position than any other parishes in the kingdom.] In Cornish's case the expenditure would be lawful as it is a parish through which the turnpike road runs, and the locomotion in the parish, therefore, would be affected. Under the Municipal Corporation Act (5 & 6 Will. 4, c. 76), several cases have been decided where a similar expenditure has been sanctioned. [MELLOR, J.-Those were cases affecting the entire borough]. The highway district is a confederation of parishes. [LUSH, J.-Only for administration, not for liability]. In R. v. Heath, 6 Best. & S. 578, the cost of an indictment_by_the board of waywardens was allowed. [LUSH, J.-But it was the cost of a particular parish. MELLOR, J. -In their opposition to the Bill the board should have got a clause inserted charging the costs of the Opposition to the highway board.] MELLOR, J. (a)-I think that the appeals were correct, and that there should be judgment for the appellants. The items appealed against were, in my opinion, properly disallowed, as not being within the class of expenses contemplated by the statute. It was certainly not within the powers of the old surveyors to incur these costs, and I think not even those of the vestry. The opposition may have been of interest to some particular parishes through which the turnpike road passed, for their liability to repair it in the event of the funds of the trust failing might be affected, but it was not for the common use or benefit of the whole district. The justices, I think, were right in their decision. Bere appeared in support of the order of sessions. The highway board had no powers to incur any expense in opposing a Bill in Parliament. Their powers are defined by sect. 17 of the Highway Act (25 & 26 Vict. c. 61), namely, to maintain in good repair the highways within their district, perform the same duties, have the same powers, and be liable to the same legal proceedings as the surveyor of the parish had under the old Highway Act; and under the old Act of the 5 & 6 Will. 4, c. 50, the only costs the surveyor could charge against the parish LUSH, J.-I am of the same opinion, and 1 think were those of the management and repair of the that the decision of the sessions was right. The roads. [LUSH, J.-Suppose the trustees of a turn-highway board is no doubt an administrative body, pike road were to endeavour to pass an Act casting an additional burthen upon the parishes in respect of their roads?] There might, perhaps, be a power in the vestry to authorise the expenditure of money in opposing it. The 111th section of the old Act gives the inhabitants in vestry a power to agree to defend any indictment, or to appeal against any order, or defend any appeal, and in that case the surveyor might have charged the expenses in his accounts. But in this case, even if the vestry had the power to sanction this expenditure, no such sanction has been obtained. Day (with him J. F. Collier) was here called upon by the court. It is found by the case that the opposition by the board to the Bill was bonâ fide, and that the result was beneficial to the district. [MELLOR, J.-It may have been very public spirited in the board to have opposed the Bill, but the question is, have they a right to saddle the parishes with the cost?] The district board now supersede the vestry. They are the only competent body to incur such costs. [MELLOR, J.-They certainly had a locus standi in Parliament to oppose the Bill, but they should have obtained the consent of the inhabitants.] The words of the 32nd section of the 27 & 28 Vict. c. 101 are very large, they are "The salaries of the officers appointed for each district, and any but where they seek to impose an expenditure upon the whole district they must show that it is for the common use or benefit of the several parishes within such district-such as the salaries of officers, the hiring of offices, and other matters of a like nature. In the present case it is stated that the turnpike-road ran through fifteen out of the twenty-one parishes comprised in the highway district, and those fifteen parishes were no doubt interested in the Bill; but still the expense was not incurred for the common use or benefit of the district. I do not say how it would have been if the board had been authorised by the vestries of all the parishes in the district. That, however, is not the case here. Judgment of sessions affirmed. (a) COCKBURN, C. J. and BLACKBURN, J. were sitting in the court for Crown Cases Reserved. Q. B.] REG. v. WATSON, REG. v. WATSON. Re AN APPEAL BETWEEN JOSEPH WATSON (appellant) AND THE CHURCHWARDENS, &C., OF THE PARISH OF HESSLE (respondents). Poor rate-Lands liable for tithes and ecclesiastical dues in one parish, and assessable to the poor rate of another parish. There is nothing legally incongruous in the fact that lands may be attached to one parish for tithes and other ecclesiastical liabilities, and be assessable to the poor rate of another parish. W. was assessed to the poor rate for the parish of Hessle in respect of certain lands described as in the township of Tranby. The lands in Tranby have from time immemorial paid tithes to the adjoining parish of Kirk Ella, and the occupiers paid church rates, Easter dues, and all other ecclesiastical dues to Kirk Ella, and never any of these to Hessle, which parish they also adjoined, and the inhabitants were buried as of right in the burialground of Kirk Ella, and as to all ecclesiastical matters such lands in Tranby were uniformly treated and reputed as a part of the parish of Kirk Ella, However, for the last 100 years, and, for anything appearing to the contrary, before that time, the lands in Tranby have been rated to the relief of the poor of Hessle, and the overseers of the poor of Hessle had acted for Tranby as if it were a part of their district: Held, that upon these facts the appellant was rightly assessed to the poor rate for the parish of Hessle. This was an appeal by the above mentioned Joseph Watson to the quarter sessions for the east riding of York, held at Beverley on the 2nd Jan. then last past, against a poor rate made by the churchwardens and overseers of the parish of Hessle, in the said riding, as hereinafter mentioned, bearing date the 1st Sept. 1865, at which sessions the appeal, being resisted by the churchwardens and overseers of the poor of the parish of Hessle, was ordered to be dismissed, and the rate confirmed, with costs, subject to the opinion of the Court of Queen's Bench on the following case, which was settled pursuant to rule of court of the 16th Nov. 1867, whereby the parties were to be at liberty to give fresh evidence, and the court to draw inferences of fact. CASE On the 1st Sept. 1865, a poor rate was made in conformity with the valuation list then in force by the churchwardens and overseers of the poor of the parish of Hessle, in the east riding of the county of York, which rate was thereafter duly allowed and published. In and by the rate the appellant, Joseph Watson, and the respondents, Henry Barkworth, Christopher Leake Kingrose, John Burstall Thompson, and John Percy Clark, are respectively rated for and in respect of lands in their respective occupations situate in the township or hamlet of Tranby. The following is an extract from the said rate, that is to say: "An assessment for the relief of the poor of the township of Hessle, in the east riding, in the county of York, and for other purposes chargeable thereon according to law, made this 1st day of Sept. in the year of our Lord 1865, after the rate of 10d. in the pound." (Here followed an extract from the poor rate, in which the appellant and four others were assessed in respect of gertain lands and premises situate in "Tranby.") The case then proceeded as follows:-All the property mentioned in the above extract is situate in, and forms part of, the township or hamlet of Tranby, except the 35a. 3r. 2p. named Westfield, and the one rood named Pit-top. Against this rate [Q. B. the appellant duly appealed to the above-mentioned sessions, and the question raised on the said appeal and material for the purposes of this case is, whether the appellant and the four respondents who are rated in the rate as above extracted are liable to be rated therein in respect of their respective occupations of so much of the property therein rated as is locally situate in the said township or hamlet of Tranby, it being contended, on behalf of the appellant that he and they were not legally liable to be rated to, and in respect of, such property in the parish of Hessle, but in the adjacent parish of Kirk Ella, in the said east riding of which it was contended that Tranby formed a part. The parishes of Hessle and Kirk Ella are both ancient immemorial parishes. Hessle consists, independently of the disputed district of Tranby now in question, of the township of Aulaby and the township of Hessle, the former of which maintains its own poor and highways separately, and has its and overseers of Hessle make poor rates for the own overseers and surveyors. The churchwardens remainder of the parish, and which rates, like the present rate, are commonly called rates for the township of Hessle, but which rates for a considerincluded the lands of Tranby. able time past, as hereinafter mentioned, have The district of Tranby has commonly been called a township or hamlet, but it has not maintained its own poor or highways separately, and never appointed a constable. It consists of a considerable tract of agricultural land, having on it three or four gentlemen's residences, one of which has a lodge and farmhouse attached to it. It is adjacent to Hessle and also to Kirk Ella, but the residences in Tranby, of Hessle than that of Kirk Ella. with one exception, are nearer to the parish church For about the last one hundred years, and for anything that appears to the contrary before that time, the lands in Tranby have been rated to the ship of Aulaby, and the overseers of that part of relief of the poor of Hessle, exclusive of the townHessle parish have acted for Tranby as if it were a part of their district. The earliest rate of which there is evidence is that of the year 1765, and in that and the six succeeding years the ratepayers of Tranby included in the Hessle rates are inserted in a list by themselves, headed "Tranby Tenants," and ending with a summary of the amount under the head "Total Tranby Assessment;" but this practice was not continued after 1772, but all the persons rated both in Hessle and Tranby are included in one general list. The Tranby lands have also, as far back as the memory of living witnesses extends, and for anything that appears to the contrary beyond that time, been rated to the highway rates for Hessle. On the other hand the lands in Tranby from the earliest period were titheable to Kirk Ella, as being situate in that parish, the occupiers were rated to, and paid church rates in that parish, and also Easter dues and all other ecclesiastical dues, and never paid tithes, church rates, or any ecclesiastical dues to Hessle; some of the residents of Tranby had seats in the parish church of Hessle, but not as of right, and some of the bodies of deceased inhabitants of Tranby had been buried in the church or churchyard of Hessle, but this was only under permission, and not as of right, and double fees had been charged, as in the case of strangers. The incumbent of Hessle sometimes married Tranby people when it was wished he should do so, but he married them, not at Hessle, but at Kirk Ella church, by the permission of the incumbent of that parish. In fact, as to all ecclesiastical matters, Tranby has uniformly and immemorially been treated and reputed as a part of the parish of Kirk Ella. In the year 1792 an Act of Parliament was passed (32 Geo. 3, c. 109), Q. B.J REG. v. Watson. [Q. B. intituled "An Act for dividing, enclosing, draining, | ecclesiastical rights, dues, and payments arising or and improving the open fields, meadows, pastures payable within, for, or in respect of the lands and commons and waste grounds within the several grounds by the said Act directed to be inclosed. townships or hamlets of Hessle, Aulaby, and Directions then follow for the division of the said Tranby, in the county of the town of Kingston-upon- allotments amongst the said persons in the said Hull, and for making a compensation in lieu of sections mentioned. Sect. 27 contains powers for tithe for certain ancient enclosed lands within the the general allotment of the residue of the lands. said several townships or hamlets, and also By sect. 32, after reciting that the said vicar of within the township or hamlet of Woolforton, Hessle, Walter Stickland, Robert Carlisle Broadley, otherwise Woolfreton, in the said county." The Act and vicar of Kirk Ella, were respectively entitled to may be referred to and taken to form a part of this certain great and small tithes arising out of the case. In the preamble it was recited, amongst other several messuages and ancient inclosed lands within things, that within the township of Hessle and the several townships or hamlets of Hessle, Aulaby, Aulaby were certain open fields, grounds, and lands Tranby, and Woolforton aforesaid, and which were therein respectively mentioned and described, and within the said several parishes of Hessle and Kirk that within the township or hamlet of Tranby, in Ella, the commissioners were required by their award the said county was a certain open field called by to order that the owners of the said messuages and the name of "Tranby-field," with several pieces of inclosed lands should annually pay to the said sward ground, the whole containing about 400 vicar of Hessle, Walter Stickland, Robert Carlisle acres, which said several open fields, meadows, Broadley, and vicar of Kirk Ella, such sums of pastures, common, and waste grounds in the money as the commissioners should deem to be a preamble mentioned, are described as situate within just recompense for all the last mentioned tithes. the several parishes of Hessle and Kirk Ella, the By sect. 53 it was enacted that the commissioners said parish of Kirk Ella being the parish of Kirk should draw up their award in writing with a plan Ella herein before mentioned, in the said county, annexed thereto as therein mentioned. The conand reciting amongst other things that the vicar of cluding provisions of this section are in the words the parish and parish church of Hessle aforesaid following, that is to say, "The several allotments was entitled to certain glebe lands and common and divisions, and all orders, directions, and regularights within the said several fields, lands and tions and determinations so to be made as aforesaid, grounds of one of them, and that the said vicar and and declared in and by the same award, shall be one Walter Stickland were respectively entitled to final, binding, and conclusive unto all the parties all manner of tithes, both great and small, arising interested therein." within such parts of the said fields, lands, and grounds, as were situate within the parish of Hessle aforesaid, and that Robert Carlisle Broadley, Esq. and William Wade, Clerk, as vicar of the parish and parish church of Kirk Ella aforesaid, were respectively entitled to all manner of tithes, both great and small, arising within such parts of the said fields, lands, and grounds as are situate within the parish of Kirk Ella aforesaid, and that as well the respective townships or hamlet of Hessle, Aulaby, and Tranby aforesaid, as the lands in each of them belonging to the several proprietors in the said fields, lands, and grounds lie intermixed and dispersed in small parcels. Commissioners are then appointed for putting the Act into execution. The 24th section of the Act is as follows, that is to say: And whereas disputes may arise between the inhabitants or proprietors of lands in the respective townships of Hessle, Aulaby, and Tranby aforesaid, and also the inhabitants or wners of lands in some of the parishes, townships, or places adjoining to the same, touching the respective boundaries thereof. And it will be necessary to settle and ascertain all such boundaries, as well of the said respective township of Hessle, Aulaby, and Tranby aforesaid, as also of the adjoining parishes, townships, or places; therefore, be it enacted that the said commissioners shall and may, and they are hereby authorised and empowered to inquire into, ascertain, set, and determine, and fix not only the boundaries of the said several townships or hamlets of Hessle, Aulaby, and Tranby aforesaid, but also the boundaries of such parishes, townships, or places adjoining to the same, and after the said boundaries shall be so respectively ascertained, set out, determined, and fixed, the same shall, and they are hereby declared to be the boundaries as well between the respective townships of Hessle, Aulaby, and Tranby aforesaid, as also the parishes, townships, or places respectvely adjoining to the same, subject to an appeal at the quarter sessions in manner hereafter mentioned, and any law, usage, or custom to the contrary notwithstanding. The 25th section enacts that the commissioners should make allotments to the said vicar of Hessle and Walter Stickland that should be equal in value to their then glebe lands and grounds directed to be inclosed, for and in lieu of such respective glebe lan By the 26th section the commissioners were required to make allotments to the said vicar of Hessle, Walter Stickland, Robert Carlisle Broadley, and vicar of Kirk Ella, of the different lands thereby directed to be inclosed in lieu of all manner of tithes both great and small, and all vicarial and The commissioners appointed by and acting under and in execution of the said Act, duly made their award in writing and dated the 23rd Feb. in the year of our Lord 1796. All the rated lands and tenements in Tranby mentioned in the extract from the rate appealed against herein before set out in the fourth paragraph of this case are dealt with in and by the said award; parts of them, which consisted of old inclosures in Tranby, were charged by the said commissioners pursuant to sect. 32 of the Act with tithe rents payable to the said Robert Carlisle Broadley and the said vicar of Kirk Ella and their respective successors in lieu of their former rights to tithes in respect of the said old enclosures and which tithe rents have been since regularly paid. The remainder of the said rated lands being the greater part thereof and consisting of allotments of Tranby field and the open lands in Tranby, were awarded, set out, and allotted in different parts and allotments, to certain persons through whom the present owners and occupiers thereof, including the appellant, respectively derive title. The award does not purport to set out, determine, or fix the boundaries of any township or parishes otherwise or more particularly than shewn in and by the description and declarations hereinof which the appellant is rated in the rate appealed after mentioned. On the fifty-one acres, in respect against, about thirty-eight acres are old enclosures charged with tithe rents as above mentioned. The following is the extract from the award relating thereto, that is to say: "Kirk Ella Tithing. The whole annual payment to be made to the said Robert Carlisle Broadley, his heirs and assigns." (Here followed the names of two owners, and the numbers on the plan and the total quantity, together with the amount of the annual tithe rent; the letter T being affixed.) The case then proceeded. By the letter T. in the above extract is meant to be stated that the lands are in the township of Tranby. Of the rate of 31. 4s. 2d. at which the appellant is rated, 21. 4s. 2d. is in respect of these thirty-eight acres of old enclosure. The remainder of the said fifty-one acres consists of new inclosures allotted by the said commisioners, and declared by them to be in the said township of Tranby and parish of Kirk Ella. The following is an extract from the said award respecting one of the said allotments for which the appellant is rated, that is to say, We do also award, set out, allot, and appurt unto the said William Green and his heirs, all that other piece or parcel of land situate, lying, and being in Tranby Field, containing 12a. 2r. 8p. be the same, more or less, adjoining lands berein awarded to the said Joseph Sykes, on or towards Deeast lands herein awarded to Francis Green, on or towards the west old inclosure and Maize-lane on or towards the do order and direct that the said William Green, his heirs and north, and Swanland-road on or towards the south; and we assigns, shall make and for ever hereafter maintain good and sufficient ditches and fences on the east side and south end of this allotment; and we declare this allotment to be in the said township of Tranby and parish of Kirk Ella aforesaid. Of the 255 acres and more for which the respondent Thompson is rated, thirty acres are old inclosure, and are charged in the Kirk Ella Tithing in the same manner as herein before shown with respect to the appellant's thirty-eight acres, and similarly marked with the letter T. Of the rate of 171. 4s. 7d., at which the said appellant is rated, 21. Os. 6d. is in respect of these thirty-eight acres of old inclosure. All the remainder of the lands mentioned and rated in the said extract from the rate appealed against, except West Field and Pittop as hereinbefore mentioned, are new inclosure, allotted in similar terms mutatis mutando, and declared to be in the said township of Tranby, and parish of Kirk Ella aforesaid. The practice of rating Tranby lands to the poor above mentioned as a part of Hessle, was continued without opposition or objection until recently, when the parish of Hessle, finding their existing burial grounds insufficient, expended a considerable sum of money, exceeding 1500l., in purchasing a new burial ground, and in the expenses connected therewith, which expenditure under the recent Burial Acts became a charge on the poor rate. The ratepayers of Tranby, who were entitled as of right to bury in the churchyard of Kirk Ella, which was sufficient for the necessities of that parish, and was likely to continue sufficient for many years to come, objected to this new charge upon them, and became desirous, if they could legally do so, to put an end to the practice of rating the lands in Tranby as a part of Hessle parish, and the present appeal was brought with the concurrence of all of them to try its validity. The question for the opinion of the Court of Queen's Bench is whether the lands and tenements in Tranby mentioned in the said extract from the said rate appealed against, or any of them, are liable to be rated to the relief of the poor in the said parish of Hessle. If the court shall be of opinion that the said lands and tenements, or any of them, are not liable to be so rated, then the said rate is to be amended by striking out of the said rate so much as relates to the said lands and tenements which are not liable to be so rated, and the said order of the said court of quarter sessions is to be quashed. But if the court shall be of opinion that all the said lands and tenements are liable to be so rated, then the said order of the said court of quarter sessions is to be confirmed. Prideaux and Lewers appeared for the respondents. T. P. E. Thompson appeared for the appellants. The following cases were cited: Sharpley v. The Overseers of Mablethorpe, 3 Ell. & Bla. 906; Reg. v. The Inhabitants of Ashby Folville, 35 L. J. 154, M. C.; R. v. Welbeck, 2 Stra. 1143; 13 & 14 Car. 2, c. 12, s. 21. [Q. B. The arguments sufficiently appear in the following judgments: MELLOR, J.(a).-In this case I am of opinion that the rate must be confirmed, and that the order of sessions was right. No doubt it is a case of some difficulty, but I think unless Mr. Thompson can convince us and show us that there is some legal objection which prevents the continuance of this state of things, we ought to give effect to them. As Lord Campbell says in the case of Sharpley v. Mablethorpe, 10 E. & B. 90, "I can see no conceivable legal ground for disputing a usage that has prevailed so long." In this case it may be that before the origin of the parishes at all, and when the churches were first erected, the persons who founded the churches were the owners of the estates that were originally assigned to those churches, and in process of time the tithes of the particular ecclesiastical districts became assigned to the particular churches, such as were anterior or may have been anterior to the actual subsequent ecclesiastical division of the parishes; and it may be that origi nally this district of Tranby had its tithes assigned to the church of Kirk Ella, and yet for all ecclesiastical purposes and for all civil purposes, may have been formed into a district consisting of itself and the township of Hessle, or it may be that after the formation of parishes, and after the tithes had been appropriated to the church of Kirk Ella, that for all these purposes it may have been formed into a township with the township of Hessle, and being so, it at the time of the statute of Elizabeth became by reputation such a parish or township, and may under this statute be liable to maintain the poor, and have all the privileges that properly belong to a parish or township. At the same time it may be that owing to the circumstances of the actual bargain that may have taken place, or the u standing on which the union or the appropriati may have taken place-it may have been the prace for some of the inhabitants of the parish of Tranby to go to the church of Kirk Ella, and that may account for the usage subsequently for the payment of church and other ecclesiastical dues. But we have on the other hand that for 100 years at least, and without any evidence to the contrary, the fact that it has uniformly been rated to the poor for the township of Hessle as part of that township, and has uniformly contributed to the highway rates, and it appears, though I do not rest so much upon that, that there is evidence that there is a manor of Hessle cum Tranby, a manor consisting of Hessle and Tranby. No doubt in the origin of ecclesiastical divisions the limits of parishes followed the ambits of manors, though there is no case known in which a parish has extended into two manors. However that may be, I think there is abundant evidence, as I read the evidence here, to show that this district as a district, did properly maintain its own poor, and had_the power and authority to make the rate. Under these circumstances, I am of opinion that the order of sessions should be confirmed. LUSH, J.-I think that we ought not to disturb a state of things that has existed for so long a period, unless we can see it could not have had a legal origin. The case finds as a fact that for more than one hundred years the inhabitants of Tranby have been assessed to the poor rate by the overseers for the township of Hessle, and with the inhabitants of the township, and has during a certain period supported and maintained a common highway, and been assessed to the highway rate. From that and there being no evidence to the contrary, I have no (a) Cockburn, C. J. was engaged in the Court for Crown Cases Reserved. Q. B.] GUARDIANS OF RICHMOND UNION (apps.) v. DEAN AND CHAPTER OF ST. PAUL'S (resps.) [Q. B. I difficulty in tracing it back as far as it can be traced, and so it could have had a legal origin. think it may have had a legal origin for more reasons than one, and it is sufficient to refer to one, and that is this: The township of Tranby was merely originally, whatever it may be now, a part of the township of Hessle, though it may have been part of the parish of Kirk Ella. I am not aware of any legal impossibility of a township running into two parishes, and consisting of portions of two parishes; and I see it is called in the Act of Parliament the township of Tranby. If I had to decide whether it was a separate township or not, I should say that the evidence is wanting to show it never was a township of itself, because I find it is an incident to a township that it should have a constable, and it is necessary to a township that it should have a church of its own for the celebration of sacraments and burials and so on; it is found that Tranby never had a church of its own, or a constable. For a very long period this particular district has been associated with Hessle in the maintenance of the poor, and the payment of highway rates. Now, it could have had a legal origin, if in point of fact it was a portion of a township, because then the statute of Charles would have enabled this township, though it may consist of portions of two parishes, to appoint overseers of its own, and separately to maintain its own poor. That being so, and there being no evidence at all to the contrary, there being evidence that Tranby is not a township in itself, but a part of, and associated in all civil matters with, this portion, I have no hesitation in inferring it was necessarily a part of the township of Hessle, and that is one mode of accounting for this usage which has existed so long. Though that is not the only one, it is enough to specify it, and therefore we are bound to uphold a state of things that has so long continued. HANNEN, J.-I am of the same opinion. It seems to me that if we assume that Hessle and Tranby were originally united together as one township then all the difficulties at once vanish, and as it is necessary we should, if possible, uphold what has existed so long, it seems right to admit that which seems so reasonable a conclusion from all the evidence. That it had this origin I think appears really from the evidence, negative and positive. The negative evidence is this, that there have been three divisions referred to and mentioned in Doomsday, but Tranby does not appear to have been mentioned, though it seems to have been included in one or the other of those districts. Then there is the fact that the Tranby lands have been rated with Hessle for the highways. Now it may very well be, that a township may be liable to repair the highways irrespective of any practical divisions that are consistent with the supposition that they belong to one township. Well then ville, or township, is the natural division, and it seems to require nothing more than that there should be a collection of houses together. But the artificial division may have depended on circumstances that it is impossible for us now to ascertain. It may well, therefore, have been that a parish established for certain purposes properly would have cut the natural division into two parts, and from that time Tranby may have been attached to the other division, while for civil purposes it might have been still attached to its old division of the township of Hessle. Order of sessions confirmed. Wednesday, June 3, 1868. THE GUARDIANS OF THE RICHMOND UNION (apps.) V. THE DEAN AND CHAPTER OF ST. PAUL'S. (resps.) Nuisances removal-18 & 19 Vict. c. 121-Who liable under sect. 12 to remove a nuisance. By sect. 12 of the 18 & 19 Vict. c. 121 (the Nuisances Removal Act for England 1855), the local authority in any case where a nuisance is ascertained to exist are to cause complaint to be made to a justice, who is thereupon to issue a summons requiring the person by whose act, default, permission, or sufferance, the nuisance arises or continues to appear before two justices, who, upon inquiry, may make an order upon him to abate, &c., such nuisance. The Dean and Chapter of St. Paul's were lords of the manor of Barnes, Surrey, in which manor there is a common called Barnes Common, on which there is a pond which had become a nuisance. The said common is managed and regulated by conservators appointed by the copyhold jury and tenants, with the assent of the lords at the court baron. Proceedings having been taken under the above section against the respondents in respect of the nuisance in question: Held, that as the common was managed and regulated by conservators, they were not liable. This was a case stated by justices under the 20 & 21 Vict. c. 43, upon a refusal by them to make an order upon the respondents pursuant to the 18 & 19 Vict. c. 121, s. 12. The case was as follows: At a petty sessions held at Richmond in the said county before the undersigned. . on the 28th Aug. 1867, the dean and chapter of the cathedral church of St. Paul in London were charged upon a certain complaint, for that on or upon the premises of which they were the owners known as Barnesgreen, in the parish of Barnes and county of Surrey, and in the district of the governors of the Richmond Union under the Nuisances Removal Act for England 1855, the following nuisance existed, namely, a large pond of water, which was foul with an accumulation of mud and vegetable and animal deposit, so as to be a nuisance and injurious to health, and that the said nuisance was caused by the act or default of the said dean and chapter as the owners of the said premises, and that in the event of any temporary abatement of the said nuisance the same was likely to recur. At the hearing of the said complaint it was proved before us that the defendants were and are lords of the manor of Barnes; that Barnes common or green, as it is styled in the summons, is part of the waste lands of the manor, and is of large extent, and that the said pond is situate upon Barnes common, and upon a waste of the said manor; that the tenants of the manor have the right of depasturing the herbage of the said waste lands by their cattle, and the cattle water at the said pond; that the said common is managed and regulated by conservators appointed by the copyhold jury and tenants, with the assent of the lords at the court baron. The lords have always consented to the conservators selling gravel and turf from off the common, and their receiving the proceeds, on the arrangement that all such proceeds were to be expended by the conservators in the maintenance and improvement of the common, and that, in consequence of the accumulation of mud and other deposit in the said pond, it emitted in hot weather offensive and noxious effluvia injurious to health, and so was a nuisance. It was thereupon contended, upon the part of the defendants, that they were not owners of the premises within the meaning of the statute 18 & 19 Vict. c. 121, and that the said nuisance, if found by the magistrates to exist, ought to be abated and removed by and at the cost |