which is indeed determined in the first instance by the Court in which it is pleaded, but is subject to a writ of error. The County Court Act gives no writ of error, or appeal of any sort; but then it is presumed that the Court deals only with matters within its jurisdiction. If a doubt arises as to that question, we think it impossible to contend that any of the provisions of the act make the solution of that doubt by the Court itself final. If so, the question must be open to one of the superior Courts on motion for a prohibition, by affidavit. Now, in the present case, the question being whether the Judge was right in holding that the value exceeded 20., I think the case is one for a prohibition. In a case like In re Brown and Cocking (4), I agree that though the finding of the county court Judge is not conclusive, for all practical purposes a strong case must be made out to justify us in coming to the conclusion that a prohibition must go. Upon the whole of the facts which are before us, it is clear that the Judge thought that if he deducted the ground-rent, the value wouldbe below 207., but that if the groundrent was not deducted the value would exceed 207. I think, therefore, that he was wrong in holding that he had jurisdiction.

LUSH, J.—I am of the same opinion. In making this rule absolute we are only following the acknowledged rule which ought to prevail, namely, to give the words of the 11th section their plain meaning.[His Lordship read the section.]-There is the cognate section which follows it, section 12, which gives power to try actions where title comes in question where neither the value nor the rent payable in respect thereof shall exceed the sum of 201. by the year. If we were to construe the section as Mr. Oppenheim suggests, we must suppose the words to mean "the plaintiff's interest in the lands," &c., instead of "the value of the lands," &c., shall exceed the sum of 201; but that is not consistent with the language used in the section.

HANNEN, J.-I am of the same opinion.
Rule absolute, with costs.

Attorneys-Doyle & Edwards, agents for J. & G. Webster, Sheffield, for plaintiff; J. W. Hickin, agent for Ryalls & Son, Sheffield, for defendant.

NEW SERIES, 38.-Q.B.

Local Government Act, 1858 (21 & 22 Vict. c. 98.)-Adoption of Act by Parish including a Corporate Borough but not the Parliamentary Borough.

By section 14. of the Local Government Act, 1858, "in cases where any place hereby authorized to adopt this act includes within its limits any less place, which if it were not so included, would, of itself, be authorized to adopt this act, such less place shall not be entitled to adopt this act, unless the greater place, within the limits of which it is included, has refused to adopt the same; or unless it has been determined by one of Her Majesty's Principal Secretaries of State, in manner hereinafter mentioned, that such less place ought, as respects the adoption of this act, to be excluded from the limits of such greater place."

By section 17. a petition may be presented to the Secretary of State against the resolu tion for the adoption of the act.

The corporate borough of L. was included within the parish of L, but the boundaries of the parliamentary borough of L. extended beyond the parish. The vestry of the parish resolved to adopt the act. Some of the inhabitants of the corporate borough appealed under the above 17th section, but the Secretary of State dismissed the appeal, and ordered that the act should be adopted throughout the whole parish, including the corporate borough.

This order having been brought up by certiorari was held to be good; section 14, in terms providing for such a case, where a borough, the less place, was included in a larger place having a known and defined boundary.

This was a rule calling upon the Secretary of State for the Home Department to shew cause why a certiorari should not issue to remove into this court all and singular the orders made by the Right Honourable Spencer Walpole, the late Secretary of State for the Home Department, ordering the Local Government Act, 1858, to be in force throughout the entire parish of Lymington, in the county of Southampton, in order that the same might be quashed.

C

It appeared from the affidavits, that the parish of Lymington is in extent about 1,500 acres, and comprises within its area the corporate borough of Lymington, which is in extent about 100 acres. The borough is a corporate borough, mentioned in schedule B. section 2, of 5 & 6 Will. 4. c. 76, and its boundaries are defined by 2 & 3 Will. 4. c. 64. schedule D, from which it appears that the parliamentary borough includes the parish and part of another. The portion of the parish without the borough is called the Tything of Lymington, and is a place having a known and defined boundary, being a manor of itself, and the inhabitants residing therein are separately assessed from those living within the borough for all parliamentary taxes and the police rates. The population of the borough at the census taken in 1861 was 2,416, and of the tything 1,655.

On the 16th of August, 1866, the vestry of the parish resolved to adopt the Local Government Act, 1858. Doubts arose whether the resolution was legal, on the ground, among others, that the corporate portion of the parish had not adopted the act by its town council. The opinion of counsel was taken, and at a meeting of the inhabitants of the parish it was determined to appeal to the Secretary of State for the Home Department, who however dismissed the appeal and made the order now complained of.

A meeting was then held, and certain persons, against the will of the rest, formed themselves into a local board. A rule nisi for an information in the nature of a quo warranto was obtained against them, but was discharged, the Court intimating that the proper mode of proceeding was by certiorari, if there was any remedy at all.

The present rule was obtained at the instance of Mr. W. H. Grove, an inhabitant of the parish, and other inhabitants, and of many burgesses of the borough, who were opposed to the introduction of the Local Government Act into the parish.

The Attorney General-Sir J. B. Karslake (Archibald with him) shewed cause against the rule. The order of the Secretary of State is perfectly good. The parish of Lymington is a "place having a known

or defined boundary within the meaning of the 3rd clause of the 12th section of 21 & 22 Vict. c. 98," and therefore has power under that section to adopt the act. The 13th section shews how meetings are to be summoned, and in places having known and defined boundaries they are to be summoned by the churchwardens, as has been done in this case. By section 14. any less place, included in another which is authorized to adopt the act, is not entitled of itself to adopt it, unless the greater place has refused, or unless a Secretary of State thinks it ought to be excluded from the limits of the greater. Section 17. gives an appeal to a Secretary of State, of which Mr. Grove has availed himself, but without obtaining redress, because the Secretary of State considered that it was right that the act should be adopted by the whole parish. By section 18. power is given to order an inquiry into the matter. By section 81. the orders are to be binding and conclusive, and by section 137. of 11 & 12 Vict. c. 63. incorporated by section 4. of the act now under consideration, the certiorari is taken away, though not, of course, where there is no jurisdiction to make the order.

[COCKBURN, C.J.-There is some difficulty in seeing how the parish can oust the borough from its right to adopt the act for itself.]

But the statute provides for all such matters being settled by the Secretary of State.

[HANNEN, J.-The act gives him power to enter upon and decide this very question.]

(He was then stopped.)

Grove, in person, in support of the rule.-Sections 13. and 24. shew that the local board for this corporate borough ought to be the mayor, aldermen and burgesses acting by the council. The inhabitants of the parish outside the borough have no right to take away the right of the borough to adopt the act and appoint their own local board. This case does not fall within the provisions of section 14. at all. It cannot be said that the borough is a less place included within a greater, which would of itself be authorized to adopt the act, for the boundaries as fixed by 2 & 3 Will. 4. c. 64 extend over a larger space.--He referred to

The Queen v. the Northowram and Clayton Ratepayers (1).

COCKBURN, C.J.-I do not think that the objection last taken by Mr. Grove, that it was not competent for the parish to adopt the act, because the parish is comprehended within the parliamentary borough, which consists of this parish and of another, has really any bearing whatever upon the subject. It might as well be said, because a parish was not the county in which it was situate, that it could not adopt the act. A parish is a place having a well-known and defined boundary. This parish happens, for parliamentary purposes, to have been united with another parish, and in the parliamentary returns for the borough of Lymington there is a district which is more than co-extensive with the parish of Lymington. I do not think that has any application to the question before us. I was no party to the decision in The Queen v. the Northowram and Clayton Ratepayers (1), but I do not quarrel with that case; it does not govern the present one. Then comes the question, whether the 14th section includes it? I think that it does, according to its terms, and, looking at the great inconvenience which would result if we were to say that the borough could prevent the parish from adopting the act, I think that we ought not to put such a limited construction upon the statute. With regard to the machinery provided by the 13th section, I think that the answer to Mr. Grove's position is this: that the statute having provided for corporate boroughs and places under the jurisdiction of the Improvement Commissioners, and the others, then makes provision, in section 13, for the way in which the meeting for the purposes of the 12th section shall be formed, and by whom the petition in writing shall be issued, and then it follows, that the three sub-sections of section 12. referred to corporate boroughs, to places under the jurisdiction of the Improvement Commissioners, and then to all other places having a defined boundary, and not being corporate boroughs. It is by the light of the 14th section that we must see

(1) 7 Best & S. 110; s. c. 35 Law J. Rep. (N.S.) Q.B. 90.

whether, when a corporate borough, being a less place, is included in the larger, the parish, the provision applies. If a borough proposes to insist upon its right to adopt the act, and to keep within its own more limited jurisdiction, instead of adopting it in compliance with the rest of the parish, of which the borough forms a part, that matter must be brought before the Secretary of State, who will exercise, no doubt, a sound discretion with reference to what is more convenient and preferable to be adopted.

statute.

LUSH, J.-I am of the same opinion. I think that the 14th section in its terms comprehends this case, and I cannot help thinking that it was intended to comprehend it. When one looks to the inconvenience which would result from the opposite view, we find it would be very great. There are the different items of sewerage, lightage, watering and so on. The intention seems to have been to make the area as large as possible within the fair meaning of the Then it is contended that this borough does not come within the 14th section, as being a less place included within the limits of a larger, because in the act assigning an area for parliamentary representation, it has assigned to it a limit round the parish of Lymington for the purposes of that particular act. I do not think that that brings the case within the provision of this particular act any more than the association of a number of parishes within a poor-law union would make the whole union a place within this act. I think, therefore, that this parish is the larger, and the borough the smaller place within it.

HANNEN, J.-I am of the same opinion.
Rule discharged, with costs.

Attorney-The Solicitor to the Treasury.

The Gen. Rule of H. T. 7 & 8 Geo. 4, that the objections intended to be made to the title of a person against whom an information in the nature of a quo warranto is to be filed, shall be specified in the rule to shew cause, is a rule applicable to the pleadings only, and does not prevent the relator at the trial of the information going into objections which may not be specified in the rule.

After a burgess-roll has been made up in the manner provided by the 5 & 6 Will. 4. c. 76, the persons whose names are upon that roll are entitled to vote at the election of councillors, and upon the trial of an information their right cannot be questioned.

Information, in the nature of a quo warranto, to shew by what authority the defendant claimed to exercise the office or franchise of councillor of the borough of Scarborough, in the county of York.

The defendant pleaded that the borough of Scarborough was an ancient borough; that the bailiffs and burgesses were one body corporate and politic in deed, fact and name, by the name of the bailiffs and burgesses of the borough of Scarborough; that within the borough there of right ought to be one mayor, divers, to wit, six aldermen, and divers, to wit, eighteen councillors, to be elected in the manner specified by the act of parliament, passed in the sixth year of the reign of the late King William the Fourth, intituled, 'An Act to Provide for the Regulation of Municipal Corporations in England and Wales'; that the borough is divided into two wards, namely, the north ward and south ward; that nine of the eighteen councillors were apportioned to each of such wards; that on the 1st of November, 1867, an election was duly held for the election of three councillors to supply the places of those who went out of office in the south ward,

* Decided in Easter Term.

before an alderman of the borough and two assessors; that the defendant was an enrolled burgess and duly qualified to be elected and be a councillor, and that the burgesses of the south ward did elect him to be a councillor; that he was declared to be duly elected, and that he then and there accepted the office, &c.

Replication, that the burgesses of the south ward did not elect the defendant as alleged.

At the trial, which took place before Hannen, J., at the last York Spring Assizes, it appeared that the borough was divided into the north and, south wards, as alleged in the plea, and that on the 1st of November, 1867, the defendant was declared to have been elected a councillor for the south ward. There were six candidates, among whom were the defendant and the relator, Dr. Jackson. The number of votes which were given for the defendant was 281, and for the relator 279.

The rule nisi for the information was obtained upon the affidavits of several persons, but it did not specify the reasons for which the election was alleged to be bad, nor did it set out the names of the voters or the votes which were objected to. The affidavits upon which the rule was granted shewed that four votes which were recorded for the defendant were bad, two because the persons supposed to be voting were dead, one, because the person supposed to be voting was at sea, and the fourth, because the voter had already, at the same election, voted for the north ward.

The relator also sought to shew that certain voters on the burgess-roll, who voted for the defendant, were not duly qualified.

A verdict was entered for the Crown, with leave to the defendant to move to set that verdict aside and enter a verdict, instead thereof, for the defendant, if the Court should be of opinion that it was not competent to the relator to go into other objections besides those on which the rule for the information had been obtained, or to question, at the trial, the qualifications of persons appearing on the burgess-roll. A rule having been obtained,

Overend and Shepherd shewed cause.The rule must be discharged. There is no reason why the relator should not be allowed

to question other votes as well as the four which were mentioned in the affidavits. The defendant relies, as to the first point, on the rule of Hil. Term, 7 & 8 Geo. 4. 1827, which may be found set out at page 267, in 6 B. & C., and which is as follows: "Whereas much vexation and expense has been occasioned to defendants in informations in the nature of a quo warranto, by the practice of raising issues upon various matters distinct from the ground on which the information was granted by the Court".... "Now, for providing a remedy in this behalf, it is ordered that from henceforth the objections intended to be made to the title of the defendant shall be specified in the rule to shew cause, and that no objection not so specified shall be raised by the prosecutor on the pleadings without the special leave of the Court or of some Judge thereof."

[BLACKBURN, J.-That rule seems only to apply to the pleadings.]

Yes, it has no application to the point now before the Court-see the observation of Coleridge, J. in The Queen v. Thomas (1). In The Queen v. Preece (2) it was objected that the rule did not comply with the above rule of court, because it did not shew that the defect in the defendant's title intended to be relied upon was the defect in his election as alderman, and that if the defendant pleaded that he was councillor the relator might traverse it, and would thus bring forward an objection not specified in the rule nisi. To this Coleridge, J. said, "Surely they may traverse whatever you allege"; and Lord Denman, C.J. said, "The rule of court merely requires that the rule nisi shall contain a statement of the intended objections in the nature of a bill of particulars. In shewing cause the defendant may set up a different title, which would put this out of question." In The Queen v. Edye (3) it is said, in the marginal note, "In the rule nisi for a quo warranto information, it is not enough, under Reg. Hil. 7 & 8 Geo. 4, to state that the party against whom the application is (1) 8 Ad. & E. 183; s. c. 7 Law J. Rep. (N.s.) Q.B. 141.

(2) 5 Q.B. Rep. 94, 95 note h; s. c. 12 Law J. Rep. (N.S.) Q.B. 335.

(3) 12 Q.B. Rep. 936; s. c. 18 Law J. Rep. (N.S.) Q.B. 69.

made was not entitled to be appointed to the office and the relator was." Lord Denman, C.J. said, after the judgment of the Court had been given, "We ought to observe that the objection here is quite insufficiently stated."

The second question is, whether the relator could, upon the trial, question the right of certain of the electors to be upon the burgess-roll. It is said that the relator has no right to dispute their qualifications behind their backs. But a man's name may be on the burgess-roll without his being a burgess; and if so he cannot be entitled to vote, although, of course, if he be a burgess and has his name on the roll, he will be entitled. The question is discussed in Grant on Corporations, p. 214.

[MELLOR, J.-Section 29. of 5 & 6 Will. 4. c. 76. says, "that every burgess of any borough who shall be enrolled on the burgess-roll for the time being, &c., shall be entitled to vote.]

That section does not touch the point. [BLACKBURN, J.-Section 22. says that the list, when revised, "shall be the burgessroll of the burgesses of such borough entitled to vote," &c.]

It cannot mean that they are entitled to vote if they are not burgesses. An information in the nature of a quo warranto will not go to remove a disqualified person from the burgess-roll-In re Armstrong (4).

[MELLOR, J.-I see no reason why the revision of the burgess-roll should not be final, no disqualification being shewn at the time. In Rawlinson on Corporations it is stated, at p. 42, note 1, that the mayor's decision as to expunging a name under the 18th section is conclusive-see In re the Mayor of Hythe (5).]

Mr. Grant, at the page before referred to, says, "Perhaps, however, the rule is more accurately and precisely stated as follows that when the qualification of the electors depends on the tenure of a corporate office or place, that qualification cannot be questioned through the medium of proceedings impeaching the title of a person elected by them to any office; but when the qualification depends upon inhabitancy (4) 25 Law J. Rep. (N.S.) Q.B. 238. (5) 5 Ad. & E. 832.