*The KING v. The Justices of HERTFORDSHIRE. Jan. 31.

Notice was given of appeal against a poor rate, and the respondents attended at the sessions and prayed a respite, alleging that they had not had time to prepare their defence` to the matters stated as grounds of appeal. The appellant opposed the respite; but it was granted, no notice of appeal having been proved or expressly admitted. An order of respite was made out, embodying the grounds of appeal stated in the notice: Held, that at the following sessions, the appellant was entitled to be heard without proving any notice of appeal.

SOLOMON BAXTER, intending to appeal against a poor-rate, served his notices in due time for the October sessions for Hertfordshire, 1832, and attended there ready to try, and to prove notice. The appeal being called on, counsel appeared for the respondents, and prayed a respite, alleging that the respondents had not had time to prepare their defence to the grounds of appeal stated in the notice, which were fifteen in number. The appellant opposed the respite; but it was granted, on payment of costs. Notice of appeal was not proved, nor an admission of it required. One of the notices was handed by the respondent's counsel to the clerk of the peace, and was thereupon (as the appellant represented) filed with the records of the sessions; but the respondents alleged that it was merely furnished to the clerk of the peace for his convenience, to assist him in making out the order of respite. This order (which set forth the grounds of appeal stated in the notice) was served on the churchwardens and overseers of the respondent parish on the 21st of December; but they had no further notice of appeal. At the next sessions, (31st December) the appeal was called on, and the respondents' counsel objected to its being heard without proof of the original notice. This the appellant was not prepared to give, conceiving that the fact had been admitted at the former sessions, and proof of it now was *562] unnecessary; but he offered to prove the order of respite. *The sessions held this insufficient, and confirmed the rate with costs. A rule nisi was afterwards obtained in this Court for a mandamus to the justices to enter continuances and hear the appeal.

Ryland now shewed cause, and contended, that upon the clear principles of law on this subject, the respondents were entitled to require proof of the notice, which was necessary to give the court jurisdiction; that the handing of a copy to the clerk of the peace in the manner here stated could make no difference; and that the parties stood in the same situation as to this point at the second session as at the first.

Platt, contrà, argued that the jurisdiction had been admitted, and proof of the notice dispensed with, by the conduct of the respondents at the first sessions. PER CURIAM. (a) The respondents had acted upon the notice so as to make further proof unnecessary. The sessions ought to hear the appeal.

Rule absolute. (b)

*563] *The KING v. The Justices of CARMARTHENSHIRE. Jan. 31.

An order of removal "to the parish of L." was directed "to the churchwardens and overseers of the parish of L." There were no such officers, but the parish was divided into three hamlets, A. B. and C., each maintaining its own poor, and having separate officers. The pauper, with the order, was delivered by the officers of the removing parish to the officers of the hamlet of A.:

Held, that a notice of appeal given in the name of the officers of the hamlet of A. and reciting the order to be for removal to the hamlet of A., in the parish of L., could not,

(a) Denman, C. J., Littledale, Taunton, and Patteson, Js.

(b) See Rex v. The Justices of the West Riding, Michaelmas term, 1833.

under these circumstances, be objected to by the respondents, and that the appeal ought to have been heard.

Two justices, on the 25th of August 1832, made an order for the removal of a pauper and her children from the parish of Mothvey, in the county of Carmarthen, to the parish of Llywell, in the county of Brecon. The order was directed to the churchwardens and overseers of the poor of the parish of Llywell," and after adjudging that the lawful settlement of the paupers was in the parish of Llywell, it proceeded in the usual form to require "the said churchwardens and overseers of the poor of the said parish of Llywell" to receive and provide for the paupers.

poor

The parish of Llywell is divided into three hamlets, viz. Treganmaur, Traganlaes, and Slydach, each of which maintains its own poor, and has separate churchwardens, separate overseers of the poor, and separate rates. Appeals have frequently been tried against orders of removal between the three hamlets at the Brecon quarter sessions. There are no such officers as churchwardens or overseers for the whole parish of Llywell. On the 27th of August 1832, the paupers named in the order of removal were delivered by an officer of the removing parish of Mothvey to one of the oversers of the hamlet of Treganmaur, together with the order of removal. The overseer received the paupers, but at the next quarter sessions, held in October 1832, an appeal against the order of removal was duly lodged and respited on behalf of the churchwardens and overseers of the hamlet *of Treganmaur and on the 22d of December 1832, [*564 the following notice of appeal was duly served upon the churchwardens and overseers of Mothvey: "To the churchwardens and overseers of the of the parish of Mothvey, in the county of Carmarthen. This is to give you notice, that we the churchwardens and overseers of the poor of the hamlet of Treganinaur, in the parish of Llywell, in the county of Brecon, do intend at the next quarter sessions of the peace to be held in and for the said county of Carmarthen, to prosecute an appeal which was duly lodged at the last quarter sessions against an order of, &c. for and concerning the removal of Jane Jones and her four children (describing them by their names, &c.) to our said hamlet of Treganmaur, in the said parish of Llywell, in the county of Brecon aforesaid, from your said parish of Mothvey, in the said county of Carmarthen." The appeal came on at the sessions held in January 1833, and on proof of service of the notice of appeal, an objection was made on behalf of the respondent parish that the notice was improper, inasmuch as it ought to have been given by the overseers of the parish of Llywell, to whom the order was directed, and not by the officers of the hamlet of Treganmaur; and a further objection was made, that the notice stated the order to be an order for the removal of the paupers to the hamlet of Treganmaur, in the parish of Llywell, whereas the order appeared to be an order for their removal to the parish of Llywell.

The justices at sessions determined against hearing the appeal, on the ground of the informality of the notice, on the objections above stated, and the appeal was accordingly dismissed. A rule nisi for a mandamus to *the justices to enter continuances and hear the appeal was afterwards obtained by E. V. Williams, against which

[*565

Whitcombe now shewed cause. The sessions had no jurisdiction to hear the appeal, because the order appealed against was an order upon the officers of the parish of Llywell, whereas the notice of appeal was given by the officers of the hamlet of Treganmaur in the parish of Llywell. The notice ought to have been given in the name of "the churchwardens and overseers of the parish of Lly well," upon whom the order was made. Justices of the peace are not obliged to take notice of the divisions of parishes into townships and hamlets, Spitalfields v. Bromley, 2 Bott. pl. 890, 6th ed. This is not like the case of Rex . Kirkby Stephen, Burr. S. C. 664, because there the name of the township to the overseers of which the paupers were delivered, as well as that of the parish,

was Kirkby Stephen. Again, there is a fatal variance between the description of the order of removal in the notice of appeal, and the order itself. The notice describes it as an order upon the officers of the hamlet of Treganmaur in the parish of Llywell; whereas, in fact, no such order has ever been made, but only the officers of the parish of Llywell.

an order

upon The Solicitor-General and E. V. Williams contra. As to the first objection, that the appeal ought to have been in the name of the churchwardens and over*566] seers of the parish of Llywell, to whom the order was directed, the statute 9 G. 1, c. 7, s. 8, requires only that the notice shall be given "by the churchwardens or overseers of the poor of such parish or place who shall make such appeal;" and that has been done here. Besides, there are no such officers in existence as those to whom the order was directed. As to the other objection, that the order does not correspond with that described in the notice, the respondents cannot have been misled by such a variance, for there was but one order. And the respondents, by delivering the paupers with the order to the overseers of the hamlet of Treganmaur, have treated it as an order upon the officers of the particular hamlet; and are estopped from saying now, that it does not, in substance, amount to such an order.

DENMAN, C. J. We are of opinion that the quarter sessions ought to have heard the appeal. The notice of appeal could not mislead the parish officers of Mothvey, to whom it was addressed. It recited the order of removal sufficiently; the names of the paupers, the removing parish, and the part of the parish of Llywell to which the removals were made under the order, although the order professed to remove to the parish at large. The parish Mothvey is estopped by its own acts from availing itself of the objection. The removal was by the order to the parish at large, but the service of that order was on the hamlet. Parties, who have thus acted upon their own order, cannot afterwards say, that an appeal against it, under such a notice as this, shall not be heard. *LITTLEDALE, TAUNTON, and PATTESON, Js. concurred.

*567]

Rule absolute.(a)

(a) It may be convenient here to add the following case, decided in Trinity term, 1833.

The KING v. The Inhabitants of BINGLEY. June 4.

(Before DENMAN, C. J., LITTLEDALE, PARKE, and PATTESON, Js.)

Paupers were removed to the township of Bingley: the township does not maintain its own poor, but is in the parish of Bingley, which does:

Held, that the order was informal, but the sessions might amend it.

UPON appeal against an order of two justices, whereby Isabella Rushworth, widow, and her children, were removed from the township of Heslington St. Lawrence, in the East Riding of Yorkshire, to the township of Bingley, in the West Riding, the sessions confirmed the order, subject to the opinion of this Court on the following case:

The paupers were removed from Heslington St. Lawrence, to the township of Bingley, under the above order. The parish of Bingley consists of several townships, of which the township of Bingley is one. The parish maintains its own poor collectively, and there are no separate overseers for the township of Bingley. The question was, whether the order of removal to the township of Bingley could be supported.

Wrangham in support of the order of sessions. The overseers have recognized the order as made on them, by appearing and defending the appeal. At all events, the defect was one of form, and might have been amended by the sessions according to the stat. 5 G. 2, c. 19, s. 1, if the appellants had made this objection before the case was heard on the merits; Rex v. Amlwch (4 B. & C. 757).

Starkie, and R. Hildyard, contrà. The objection was properly taken at the sessions. The defect in the order was caused by the default of the removing parish, and they ought to have applied to have it amended. Besides, it is a defect not of form but of substance

the removal being to a district which has no funds to maintain its own poor. The order was therefore not amendable; Rex v. Swalcliffe (2 Bott. pl. 786, 896, sixth edit.).

Cur, adv. vult.

DENMAN, C. J. now said (after referring to Rex v. The Justices of Carmarthen, as in some degree analogous), that the present order was informal, but might have been amended at the sessions; and that being so, the Court thought that the case should go back to the sessions, that the amendment might be made.

*BUNNEY and Another v. POYNTZ. Jan. 31.

[*568

P. having given a general authority to D. to sell hay for him, D. advertised a sale, by the conditions of which a deposit was to be paid, and three months credit given on approved security for the remainder, and the lots were to be taken away within forty weeks of the sale. D. sold the hay to S., and took his promissory note for the price. S. applied to D. for leave to cut some of the hay, and it being granted, cut and took away part, but he was afterwards forbidden by D. to remove the residue. D. indorsed the note, and discounted it at his bankers, who credited him with the amount, minus the discount; it was afterwards dishonoured. D. having become bankrupt, it was agreed between the bankers and S. that the latter should sell them the residue of the hay, and that they should pay him part in money and return him his note in satisfaction of the residue. The bankers, within forty weeks after the sale, demanded the hay of D.'s principal, (P.), who refused to deliver it. In trove brought against P. by the bankers for the hay:

Held, first, assuming P. to have had a lien after the sale, and after the vendee had given his promissory note for the price of the hay, that that lien was not divested by reason of the vendee having removed part of the hay, it not appearing that this part-delivery to him was by way of delivery of the whole.

Secondly, that P. had no lien, because he was to be considered as having been paid for the hay by reason of his agent having taken the vendee's promissory note, and discounted it, and its being outstanding in the hands of the plaintiffs.

TROVER for hay. At the trial before Littledale, J., at the Spring assizes for the county of Berks, 1832, the following appeared to be the facts of the case: The plaintiffs were bankers at Newbury. The defendant was the owner of a farm, which was managed by one Cameron, his bailiff. By Cameron's directtion, in October, 1829, one Davis was ordered to sell, by auction, hay and other farming produce, then on the defendants's premises. The whole of the hay was not sold; and Cameron gave general directions to Davis to make the best that he could of the residue. In pursuance of these directions, Davis advertised another sale, which took place on the 5th of January, 1830. By the conditions of that sale, it was stipulated, that 20 per cent. deposit should be paid, and three months' credit should be given, on approved security, within seven days of the sale, for payment of the remainder. The lots were to be taken away, with all faults, at the buyer's expense, within forty weeks after the sale. Davis sold to a person named Smallbones, and, without requiring any deposit, took the joint and several promissory notes of S., and one Drew, bearing date the *6th of January 1830, for 701., payable at three months to Davis's order [*569 at the Newbury bank. Smallbones soon after the sale applied to Davis for leave to cut some of the hay, and it was granted; and he, Smallbones, cut and took away part of the hay; he was afterwards (whether before or after the note became due did not distinctly appear) forbidden by Davis to remove the residue. Davis indorsed the note, and the plaintiffs, who were his bankers, discounted it, and credited him with the amount, minus the discount; it was afterwards dishonoured. In June 1830, Davis became bankrupt. The plaintiffs then called on Smallbones to pay the note; he could not, but proposed to sell them the hay; and on the 6th of September 1830, by agreement in writing, Smallbones sold, and the plaintiffs bought the hay, still being on the premises of the defendant, for 757.; and it was agreed, that they should pay 57. in money,

and the note should go in satisfaction of the residue. Within forty weeks after the sale to Smallbones, the plaintiffs sent to the defendant and demanded the hay, but he refused to deliver it. The learned Judge told the jury that the plaintiffs could only stand in the situation of Smallbones; and as to that, he was of opinion that, during the time the note was running, Smallbones might have cut and carried away all the hay; but that if he voluntarily allowed it to remain after the dishonour of the note, the lien of Poyntz the vendor revived; although, if Smallbones had been prevented from removing it during the currency of the note, such prevention was wrongful on the part of the vendor, and he could not take advantage of such wrong so as to retain a right of dominion over the hay. And he told the jury to find for the defendant, if they were of opinion, on the evidence, that he, or Davis his agent, interfered to prevent Smallbones from

*570] removing the hay *before the expiration of three months after the sale, otherwise for the plaintiffs. The jury having found for the defendant, Talfourd, in last Easter term, moved for a new trial on the ground of misdirection. First, the delivery of part of the hay to Smallbones prevented the lien of the vendor from reviving. In Slubey v. Heyward, 2 H. Bl. 504, delivery of part of a cargo of goods was held to be, in point of law, a delivery of the whole, so as to divest the vendor's right to stop in transitu. In Hammond v. Anderson, 1 New Rep. 69, a number of bales of bacon, lying at a wharf, was sold for one entire sum to be paid for by a bill at two months; and the vendor gave an order to the wharfinger to deliver them to the vendee, who went to the wharf, weighed the whole, and took away part; and it was held that the vendee, oy taking away part, (the goods having been sold by one entire contract,) had taken possession of the whole, so as to divest the vendor's right to stop in transitu. Secondly, the negotiation of the note completed the right of the purchaser to the delivery, and the lien, if it existed before, could not revive, while the note was outstanding in the hands of an indorsee.

Lord TENTERDEN, C. J. I am of opinion, that under the circumstances of this case the lien of the vendor was not divested by reason of the vendee's having taken away part of the hay. The delivery of part of a cargo made in the progress of and with a view to the delivery of the whole, has, indeed, been held to divest the vendor's right of stopping in transitu. In Slubey v. Heyward, *571] *2 H. Bl. 504, the delivery of part was held to be a delivery of the whole, on the ground that neither before nor at the time of the delivery, did there appear any intention to separate part of the cargo from the rest. Now, here, the vendee asked permission of the vendor's agent to take away only a part of the hay; so that there was a manifest intention that that part should be separated from the residue. Upon the other point, there may be a rule.

PARKE, J. In Hammond v. Anderson, 1 New Rep. 69, the goods were in possession of a wharfinger, and the vendor gave a general order for the delivery of the whole, and the vendee under that order went to the wharf and took away part; he had actual manual possession of the whole, and took upon himself to separate a part from the residue. Here the intention of both parties was to separate the part delivered from the residue, and the vendee took possession of part only.

Justice in this term shewed cause. The case was left correctly to the jury, for the right of lien, though suspended during the period of credit, revived as soon as that expired. In New v. Swain, 1 Danson & Lloyd's Merc. C. 193, Bayley, J. says, "Where the owner of goods sells on credit, the buyer has a right to immediate possession; but if he suffer the goods to remain until the period of payment has elapsed, and no payment in fact is made, then the seller has a right to retain them." Then the question is, whether, the note having been given by Smallbones to Davis, and indorsed by him to, and discounted by, the plaintiffs, the lien is taken away. Smallbones not having performed his *part of the contract, and having permitted the hay which he might have *572] removed, to remain till the time of credit expired, the defendant was then