1827. The KING v. RIDGEWELL. ever quit claim, unto his son, the full and peaceable pos- HOLROYD, J.-I am of the same opinion. Assuming that this instrument could operate in point of law as a release, independently of other circumstances, as it would if it were by deed, still it would require a release stamp; but when it depends on other circumstances whether it could operate as a release or not, it does not require a release stamp. Supposing that this could be considered as a lease in writing not under seal, still if it operates as a lease it ought to have been impressed with a lease stamp. Probably the parties themselves thought this instrument would operate as a conveyance, but we cannot look to their intent, if it cannot be carried into operation by force of the instrument itself. This instrument could not operate as a release of any interest in land without being under seal. At the utmost it is only. an agreement, being founded on valuable consideration that the father would not molest the son in the enjoyment of the premises. The instrument conveyed no legal estate or interest in land, and as it operates only as an agreement, and, as it has an agreement stamp, I think it ought to have been received in evidence. What effect it will have on the settlement is another matter. LITTLEDALE, J.-We must look to the legal effect of the instrument, and not to the intention of the parties executing it. This instrument does not convey any interest in land. It professes to be merely an agreement not to disturb the party in possession. In that point of view, probably, the instrument would not require any stamp at all, even as an agreement. At all events, as it has an agreement stamp, and not being a conveyance, it was admissible in evidence. There might be grounds for going into a Court of Equity, for that Court to consider whether the agreement was not sufficient to decree a conveyance. As an agreement, it certainly was admissible on the trial of this appeal, whatever effect it might have on the question of settlement or no settlement. Whether the party being let into possession and enjoying the estate, pursuant to the agreement, would gain him a settlement, we are not called upon to determine. BAYLEY, J.-Although this instrument conveys no 1827. The KING v. RIDGEWELL. 1827. The KING v. RIDGEWELL. thing, yet with actual occupation I am inclined to think a settlement would be thereby gained. Order of Sessions quashed, and the appeal directed to be reheard (a). (a) At the rehearing of the the settlement was determined appeal at the following sessions on another ground. Where an order of removal was made by two justices, one of whom appeared by one of the The KING v. The Inhabitants of GREAT YARMOUTH. BY an order of two justices, R. Lenny, his wife and three children, were removed from the parish of Woodbridge, in the county of Suffolk, to the parish of Great Yarmouth, in the county of Norfolk. On appeal, the the order to be sessions confirmed the order of removal, subject to the opinion of this Court, whether the order of removal was the complaint: or was not bad, on the ground that George Thomas, Esq. one of the justices who signed the order, was, at the time when the order was made, one of the churchwardens of the parish of Woodbridge. churchwar dens making -Held ill. B. Andrews and Prendergast, in support of the order of sessions, admitted that Mr. Thomas, the magistrate, was a rated inhabitant as well as a churchwarden of Woodbridge, but contended that the order of removal was not bad on that account. Certainly if this point had been argued before the passing of the statute 16 Geo. 2, c. 18, the case of Great Chart v. Kennington (a) would be an authority against the validity of the order; but the statute alluded to was passed for the express purpose of remedying the inconvenience resulting from that deci sion. By that statute justices for any county, city, (a) Burr. S. C. 194. borough, or town corporate, within their jurisdiction, are enabled to do all acts appertaining to their office as justices, so far as the same relates to the laws for the relief, maintenance, and settlement of poor persons, and notwithstanding such justices are rated to or chargeable with the taxes, levies, or rates within the parish, township, or place affected by such acts. Where, indeed, the justice is called upon to exercise an appellant jurisdiction, he is disqualified from acting: and by the same act it is enacted, “that no justice shall act in the determination of any appeal to the quarter sessions from any order relating to such parish, township, or place where such justice is charged, taxed, or chargeable." Now it must be contended on the other side, that a justice, who happens to have the whole property in the parish, can make no order to relieve himself from improper burthens, because he is a churchwarden. The only ground upon which this magistrate could be disqualified would be on the ground of interest; but a churchwarden can have no interest in the removal of a pauper, except as a rated inhabitant; and the statute expressly removes all objection to him on that ground, if he happens to be a removing justice. This is not like the case of a justice sitting to investigate his own accounts as churchwarden. A churchwarden has nothing to do in the removal of a pauper, but to lay an information and complaint before the magistrates; the complaint and information are not taken on oath, and the order of removal is not conclusive, but may be appealed against on the merits. But it does not necessarily follow that Mr. Thomas in this case heard the complaint, although he may have subsequently signed the order; for one set of justices may have heard the complaint and another may have signed the order, which would not be irregular, Rex v. Westwood (a), Rex (a) 1 Stra. 73. 1827. The KING v. GREAT YARMOUTH. 1827. The KING บ. GREAT YARMOUTH. v. Stanstead (a). Churchwardens are disinterested public officers, and they are bound to take care of the interests of the inhabitants; and as they are in no way personally interested in the result of a removal, there is no ground for contending that the justice is disqualified from signing the order, although he happens to be a churchwarden. T. Andrews and Blunt, contrà. On the face of it the order of removal involves an absurdity quite inconsistent with law, for the complaint purports to be made by one of the churchwardens to himself. Now it never could be in the contemplation of the statute referred to that an order of removal should be made by the person acting as churchwarden. The characters of justice and of churchwarden are quite incompatible. But it is said, on the other side, that the churchwardens had no interest in the event; but that is not so, for, in the event of an appeal, they may be liable to costs. Again, they may be liable personally for removing a pauper maliciously or even improvidently; and it is doubtful whether they could call upon the parish to reimburse them for the consequences of such a proceeding. In Rex v. Gudderidge (b) it was held, that a justice of the peace, who is a rated inhabitant of a parish, cannot vote at the sessions, either upon the determination of an appeal against the accounts of the overseers of his parish, or upon the propriety of granting a case for the opinion of the King's Bench; and the Court there said, that they thought it the safer course to hold that magistrates should not interfere in cases where they were at all interested. The most remote interest ought to be a ground of objection in cases of this nature, even for the sake of appearances. If the objection now made be not upheld, it will involve this absurdity, that the removing justices may be both (a) 2 Salk. 488. (b) Ante, 35; 8 D. & R. 217; 5 B. & C. 459. |