the said parish of Broadwater, to raise money within the said district for the repair of the said road; fifthly, that the appellant was only surveyor of that part of Broadwater which is not within the district of Worthing, and not of the whole parish, as supposed in the said order; sixthly, that the town of Worthing, part of the parish of Broadwater, was and is a district maintaining its own highways, and that the road in question is wholly situate within such town and district of Worthing, and that under the statute 4 & 5 Vict. c. 59, if the said order could be made on any one, it could only be made on the local board of health of such district of Worthing as surveyors of the highways of such district; seventhly, that the said order was bad, inasmuch as it virtually repealed the 57th section of the Worthing and Lancing Turnpike Road Act and the 117th section of the Public Health Act, 1848 (11 & 12 Vict. c. 63), and the provisions of the statute 5 & 6 Will. 4. c. 50. Each of the above-named acts of parliament were to be deemed part of the present case, and to be referred to by the Court and the counsel on either side during the argument.

The questions for the opinion of the Court were, first, whether such notice ought to have been served upon the board of health of Worthing; secondly, whether the order was rightly made, or whether it ought to have been made on the board of health of Worthing alone, or on the said surveyor jointly with the said board of health; thirdly, whether the statute 4 & 5 Vict. c. 59, as continued by subsequent statutes, applied to the Worthing and Lancing turnpikeroad. If the Court should be of opinion that notice need not have been served on the board of health of Worthing, and that the order of the Justices was rightly made, and that the statute 4 & 5 Vict. c. 59, as continued by subsequent statutes, applies to the Worthing and Lancing turnpikeroad, then the order of Sessions was to be quashed and the original order of Justices to be confirmed; but if the Court should be of opinion that notice ought to have been served on the board of health of Worthing, or that the order of Justices ought to have been made on the said board, either alone or jointly with the said surveyor, and not as aforesaid, or that the

statute does not apply to the Worthing and Lancing turnpike-road, then the said order of Sessions was to be confirmed and the original order of Justices was to remain quashed.

J. J. Johnson and Wyatt (May 6) argued in support of the rule of Sessions, and referred to Elmer v. the Norwich Board of Health (1) and The Queen v. Hornsea (2). Cowling and Yates argued contrà.

Cur, adv. vult.

The judgment of the Court (Lord Campbell, C.J., Wightman, J. and Crompton, J.) was now delivered by

WIGHTMAN, J.-At a special session for the highways, two Justices made an order, under the 4 & 5 Vict. c. 59. s. 1, upon the surveyor of the highway of the parish of Broadwater, for payment of a sum of money to the trustees of a turnpike-road, to be laid out in the repair of a part of the turnpike-road within the town of Worthing, in the parish of Broadwater. The Quarter Sessions, upon appeal, quashed the order, subject to the opinion of this Court upon the facts stated in a special case. Upon the argument in this case three questions were raised for our consideration :-First, as to whether the road in question is a turnpike-road, within the meaning of the 4 & 5 Vict. c. 59. s. 1. Secondly, as to the effect of the 57th section of the 7 Geo. 4. c. X., which, it was said, discharged the town of Worthing from the making and maintaining the road in question. And, thirdly and principally, on the effect of the Health of Towns Act on the liability to contribute to the repairing of the road.

With regard to the first question, we intimated our opinion during the argument that the road was a turnpike-road within the meaning of the 4 & 5 Vict. c. 59. s. 1. It was argued that the making the groynes for the defence of the road was also an advantage to the owners of the land, which those groynes would defend from the incursions of the sea; and that money expended by the trustees upon those groynes would enure to the benefit of those lands as well as to the benefit of the turnpike-road; but the (1) 3 El. & B. 517; s. c. ante, Q.B. 203. (2) Ante, p. 59.

owners were to pay a definite annual sum correctly and properly estimated, as we must suppose, with reference to the advantage they would derive. This sum would be in ease of the persons bound to repair the road; the act expressly constitutes it a turnpike-road, and we see no reason whatever for thinking that this is not a turnpike trust within the meaning of the 4 & 5 Vict. c. 59. s. 1.

With regard to the second point, it was conceded that the exception at the end of the 47th section of this same Turnpike Act had the effect of entirely relieving the town of Worthing from the liability of maintaining the road. The provision in question is contained in a clause for saving the rights of the Commissioners of the town of Worthing under a former act of parliament; and the clause in question enacts that the rights, powers and authorities vested in those Commissioners shall be good and valid, save and except that the Commissioners shall be freed and discharged from the expense of making and maintaining so much of the road as is situate within the town of Worthing, and of making and maintaining groynes, embankments and other sea defences for the protection of the same. We construe this enactment as taking the road out of the controul of the Commissioners, it being made by the other parts of the act a turnpike-road under the management of the turnpike trustees. Before the passing of the Turnpike Act the road was under the management of the Commissioners under the prior act, and it was proper in subjecting it to the management of the turnpike trustees to say that the Commissioners should no longer have the controul over it, and should be freed from the obligation of maintaining it. The effect seems to be, that the management of the road was transferred from the Commissioners to the Turnpike trustees, and the road became, in effect, a turnpike-road under the management of trustees having the right under the statutes to seek relief from the parish in case of deficiency of their funds, the parish remaining liable to indictment at common law for the repair of the road.

Assuming, then, that the road in question was a turnpike-road within the meaning of the 4 & 5 Vict. c. 52. s. 1; and that the

liabilities of the trustees and of the parish were, after the passing of the Turnpike Act, the same as in the case of ordinary turnpike trusts, the remaining question, which is one of some difficulty and of equal general importance, is, as to the effect of the Health of Towns Act, when the town of Worthing became a district under the provisions of that statute. By the 68th section of the Public Health Act, the streets, which, by the the interpretation clause, include all highways not being turnpikes, are vested in the local board, who are charged by the act with levelling, paving, flagging, channelling, altering and repairing the same. Turnpike-roads appear to have been excluded from these provisions for the purpose of their being left under the controul of turnpike trustees. We held, in Elmer v. the Norwich Board of Health, that the expenses of repairing the highways within the district, which are expressly charged by the act upon the local board of health, were to be defrayed by a district rate under the act, and not by a highway rate. We are now to consider how the contributions for the repair of that part of a turnpike-road which lies within the district of a local board of health, part of a parish, is to be raised. By the 117th section of the act, the local board, within the limits of the district, are, exclusively of any other person, to execute the office of and be surveyors of highways, and to have all the powers, duties and liabilities of surveyors of highways, except so far as is inconsistent with the provisions of this act. In the Norwich case, before referred to, we intimated our opinion that the local board became the surveyor of the whole district, and not the surveyor of any particular parish within the district. In the present case, no question as to different parishes within the district arises, the whole district forming part of the parish of Broadwater. By the express words of this provision, the surveyors of the entire parish were excluded from executing the office of, or being surveyor of highways within the district, and the local board are to have the powers, duties and liabilities, except when inconsistent with the provisions of the act. Then follows the very important part of the 117th section upon which the counsel for the surveyors of the

parish mainly relied-"And the inhabitants of any district shall not in respect of any property situate therein be liable to the payment of highway rate or other payment not being a toll, in respect of making or repairing roads or highways within any parish, township or place, or part of any parish, township or place situate beyond the limits of such district." Nothing can be more strong than this provision to shew that the local district is to be entirely relieved from all rates or payments not being a toll in respect of the repair of all roads or highways in any spot beyond the limits. of the district. The clause is not like the 68th section, which uses the word "street," explained by the interpretation clause to include highways exclusive of turnpikeroads; but the clause uses the word "road" as if expressly to extend to all roads, and not to be confined to highways not turnpike, the management of which is vested in the local board. The exception, also, of the payment of tolls appears to shew that turnpike roads were not excluded from this provision. The effect of this provision, exempting the inhabitants of the district from the payment of the repairs of any road out of the district, coupled with the preceding provision by which the duties and liabilities of the surveyors of the district are thrown exclusively upon the local board, appears to us to be that the liability to contribute to repair in the event of a deficiency of the turnpike funds is divided, and that the part of the parish without the district remains liable to contribute in case of deficiency to the repair of any part within the parish and not being within the district, whilst the district remains alone liable to such contribution for the repair of any part of the road within the district. After the words of the 117th section, which so expressly excludes any exercise of the powers of the parish surveyors within the district, and after the immediately subsequent provision, which expressly relieves. the inhabitants of the district from liability to any payment for the repair of any road beyond the limits of the district, it seems to us quite impossible to hold that the former powers of the surveyors of the entire parish remain so that they could make a general rate upon the inhabitants of the parish, including the district for the repair

of any part of the road situate in the parish of Broadwater without the district. And if the whole parish cannot be made to contribute as to what lies out of the district, it would be manifestly unjust to the part of the parish without the district that the whole parish should be taxed for the repair of the part within the district of Worthing, and the statute takes away all power of the parish surveyors to interfere in the district. The only way of carrying out the intention of the legislature appears to us to be, by holding that the two parts of the parish become entirely distinct for the purpose of contributing towards the repair of the turnpike-roads as well as for that of repairing the general highways; and we see no difficulty in the local board being ordered to make contribution under the 4 & 5 Vict. c. 59. in the case of a deficiency of the turnpike funds. It would be sufficient for the decision of the case to say, that the power of the surveyors of the parish to make any rate upon the inhabitants of the district is gone; but we think it right to say, with reference to the question proposed to us and for the future guidance of the parties, that we think that the local board of health may well make a highway rate for the purpose of meeting such a contribution as that in question. Their powers as surveyors within the limits of the district seem amply sufficient for these purposes.

It will be seen that the effect of our decision in this and the Norwich case is, that whilst the expense of the repairing and doing the other matters to the streets and highways which is expressly made a charge upon the local board by the Health of Towns Act, is to be defrayed out of a distinct rate; any sum to be paid by way of contribution towards the deficiency of the funds of a turnpike trust, under the 4 & 5 Vict. c. 59. is to be raised by the local board as surveyors, by a highway rate.

This is in conformity with the observations of the late Mr. Lawes, in the notes to his edition of the Health of Towns Act, in one of which (see note p. 152), after stating the difficulties that have arisen, he comes to the conclusion that the expense of repairing and dealing with the streets, including highways, expressly charged on the local board by the act are to be defrayed by a distinct rate; whilst in the note p. 187,

he observes, that the local board may still have to levy a highway rate for purposes other than the matters thrown on the district rate by the act. The raising a sum of money for contribution towards the repair of a turnpike-road seems a matter for which the local board would have to resort to the powers of rating under the Highway Act, transferred to them by the 117th section of the Health of Towns Act.

The order of the two Justices in question, having been made against parties having no fund applicable by law to the purpose in question, and no power to raise such a fund, is bad, and the Court of Quarter Sessions were right in quashing the order. Our judgment is, therefore, that the order of Sessions quashing the order of the Magistrates be confirmed. Order of Sessions confirmed.

Affidavit-unanswered is to be construed in favour
of the party making it. R. v. Deverell, 121
See Habeas Corpus. Perjury.

Amendment—of indictment by substituting the pri-
soner's name for the prosecutor's cannot be made
after verdict and motion in arrest of judgment.
R. v. Larkin, 125

-

A misdescription, in an indictment, of the
terminus of a highway may be amended under
14 & 15 Vict. c. 100. s. 1. R. v. Sturge, 172
Appeal. See Case Reserved. Costs. Highway.
Order of Removal.

Apprentice-The regulations of the Poor Law Com-
missioners as to consent to the binding are merely
directory, and the omission to comply with them
does not affect the validity of the indenture.-
The certificate of the Magistrate at the foot of
the indenture affords a presumption that the rules
have been properly complied with. R. v. St.
Mary Magdalen, Bermondsey, 1
Arrest on Sunday. See Municipal Corporation.
And see Assault. Habeas Corpus.

Arrest of Judgment-Prisoner may, notwithstanding
14 & 15 Vict. c. 100. s. 25, move in arrest of
judgment for a defect not merely formal. R. v.
Larkin, 125

Assault-When apprehension for an assault is law-
ful. R. v. Walker, 123

Confession-Inadmissibility of confession made after
a threat in presence of person likely to prosecute.
R. v. Luckhurst, 18

What amounts to a threat or an inducement,
and who is a person in authority, so as to render
a confession inadmissible. R. v. Sleeman, 19
Conspiracy-Sufficiency of indictment alleging a
conspiracy by false representation to induce a
person to forego a claim. R. v. Carlisle, 109
Costs The 17 Geo. 2. c. 38. s. 4, empowering the
Quarter Sessions upon an appeal against a poor-
rate, to order costs to be paid to the party in whose
favour the appeal is decided, is not affected by
12 & 13 Vict. c. 45. s. 5. and 11 & 12 Vict. c. 43.

s. 27. An order, therefore, for payment of
costs of such an appeal is valid, though it directs
the costs to be paid directly to the appellants,
and may be removed into the Queen's Bench,
and enforced by a writ of execution, under sec-
tion 18. of 12 & 13 Vict. c. 45. The 11 & 12
Vict. c. 43. s. 27. relates only to appeals against
summary convictions and orders of Justices men-
tioned in the act. R. v. Huntley, 106
County Court. See Poor Rate.

Disorderly House-In an action for a penalty under
25 Geo. 2. c. 36. relating to public dancing,
music, &c., a direction to the jury "to say whether
the room was used for the purpose of supplying
refreshments in the manner of an hotel, the music
and singing being incidental merely, or whether
it was used principally for musical performances,
and also to consider whether the room was used
for both purposes, in which latter case plaintiff
would be entitled to the verdict," is correct.
Hall v. Green, 15