cases. It discretion which is ordinarily vested in it in these cases, would have granted the writ, I should have thought that the last argument urged was conclusive, and that we ought not to have granted a rule for quashing the certiorari, because the prosecutors had an opportunity of shewing cause against the rule originally obtained. But this is not one of those The point here is, whether the Court has power to issue the writ; and if it appears to us, at any time, that the certiorari has issued in a case in which we had no authority, it becomes our duty to undo that which has been done, and quash it. The question, then, is, whether this be a proceeding by the Justices under the 13 Geo. 3. c. 78. for if it be, this Court has no power to issue the certiorari. manifestly is a proceeding under that statute, and though perhaps it may be somewhat informal, yet it is in fact such a proceeding. The 13 Geo. 3. appears to be expressly mentioned by the very words of the Justices, for they direct that the matter shall be done "by pursuing such measures and directions in all respects, as are warranted and prescribed by the statute made in the 13th year of the reign of his late Majesty King George the 3d., for the amendment and preservation of the highways, and every subsequent act or acts relating thereto." They profess, therefore, to proceed under that act, or any subsequent act or acts relating to the subject of the order. There are no subsequent acts relating to the same subject, and therefore they are proceeding, and must be taken to be proceeding, under the 13 Geo. 3. Whether they have proceeded formally or informally, is a matter into which this Court has no authority to inquire, because the writ of certiorari is taken away. I am therefore of opinion, that the rule for quashing the writ of certiorari, and awarding a procedendo, must be made absolute. BAYLEY, J.—I am of the same opinion. I think that part of the order which it is said, does not pursue the form 1823. The KING v. CASSON. 1823. The KING v. CASSON. required by 13 Geo. 3, by omitting to name the owners of the land through which the new road is to be carried, does not afford any foundation on which the Court is at liberty to grant a certiorari, as if this case were out of that statute. The 13 Geo. 3. c. 78. s. 16. is the only act which gives the Justices any power to divert and turn a road without the consent of the proprietors of the land through which the new road is to be carried; and if that be so, the order in this case must be a proceeding under the statute. But I doubt very much whether, under that act, it is an essential part of the order, that the Justices should specify the names of the owners of the land through which the road is to pass. The sec. 16. contains no intimation whatever in that respect. The form of order given in the schedule to the act, certainly does leave a blank for the names of such individuals, but the form in that respect is, in my opinion, only directory. The Justices are to point out on the plan, as they have done in this case, in what direction the road is to go. They may not know at the time when they are pointing out in what direction the road is to go, who may be the different proprietors of the land; and if it were essential to name them upon the face of the order, any mistake in that respect would be fatal; and therefore I do not go along with the argument, that if we were at liberty to look at the order in question, we should be warranted in saying that it was a different order from that which the 13 Geo. 3. prescribes. There might be greater weight in that part of the observation, which says that the statute only authorises a conditional order for levying a sixpenny rate, whereas this is absolute; but that would make that part only of the order void; the rest would still stand good. If any proceeding had been taken upon it, and any part of the rate had been levied before the condition was performed, the order might not be a sufficient answer to an action of trespass brought against the party who made the levy; but I have no difficulty in saying, that this is an order made under the 13 Geo. 3. and the certiorari being taken away by sec. 80. of that statute, we cannot enter into the question of its sufficiency or insufficiency. HOLROYD, J., concurred (a). Rule absolute for quashing the certiorari and awarding a procedendo. (a) Best, J. was absent. 1823. The KING v. CASSON. The KING . THOMAS JENKINS. THE defendant had been committed to Cardigan gaol A Spiritual Judge has no over the trustee under a therefore, tee was com mitted upon a under a writ de contumace capiendo, by the official principal jurisdiction of the diocese, by virtue of 53 Geo. 3. c. 127. and a habeas corpus having issued on a former day to bring him up to be testator's will; discharged for insufficiency in the writ, he was now brought where a trusinto Court, and it appeared from the writ that the defendant was committed by the Ecclesiastical Judge, upon a charge promoted by one John James against the defendant, as trustee of the last will and testament of one Mary Davis, for not exhibiting an inventory and account of the goods and chattels of the said Mary Davis, pursuant to a monition for goods of a tes that purpose. W. E. Taunton, for the prisoner, contended, that the Ecclesiastical Court had no jurisdiction to entertain any application against a trustee, and consequently the prisoner must be discharged. Executors and administrators are certainly subject to Ecclesiastical cognizance, but over trustees the Ecclesiastical Judge has no jurisdiction. For any thing that appeared, there might be in this case an executor or administrator who was accountable in the Spiritual Court; but as it appeared from the warrant that the suit here was against the prisoner as a trustee eo nomine, he was clearly writ de contumace capiendo under 53 G. 3. c. 127, for pot exhibiting an inventory and account of the tator, the Court ordered him to be discharged. 1823. The KING v. JENKINS, entitled to his discharge. He cited Caudrey's case (a), and Rex v. Dugger (b). Notice had been given to the promoter, who did not appear to oppose the prisoner's discharge, and The COURT said, they thought the objection taken was valid. The writ did not call the defendant executor, or administrator, but trustee, and it was consistent with the terms of the writ that there should be an executor as well as a trustee. In the character of trustee, certainly, the prisoner was not a person over whom the Ecclesiastical Judge had jurisdiction, and he ought therefore to be discharged as to the suit in question. Discharged. 1 (a) 5 Rep. 1. (b) Vide ante, vol. i. 460. By 10 Anne, the city of Norwich, and hamlets and li berties of the The KING v. The MAYOR and JUSTICES of NOR THIS WICH. was a rule, obtained on a former day, calling upon the defendants to shew cause why a writ of mandamus should not issue, commanding them to enter continuances to the next Sessions, upon the appeal of the churchwardens and the purpose of overseers of the poor of the hamlet of Lakenham, in the better employing and main same, were incorporated for taining the poor thereof, and the guardians thereby appointed were empowered froìn time to time to ascertain what aggregate sums would be necessary for that purpose, and ascertain what proportion each parish, &c. should contribute, and then certify the same to the Justices, two of whom were to issue their warrant, requiring the proper officers of each parish, &c. to rate and assess the amount on the respective inhabitants; and it was provided, that if any person, parish, &c. should find himself or themselves to be unequally assessed, he or they might appeal at the next Sessions held after such assessment made and demanded. Where under this act the governors certified that the hamlet of L. ought to pay a certain proportion of an assessment made upon the whole city, and two Justices issued their warrant, requiring the collectors of the hamlet to assess that sum upon the inhabitants, and the hamlet being aggrieved by such assessment :-Held, that the churchwardens and overseers might appeal against both the certificate and the warrant thereon, as being an assessment made and demanded, within the meaning of the appeal clause. 1823. The KING v. of NORWICH. city and county of Norwich, against a certificate of the guardians of the poor in the said city and county, certifying that the sum of 5005l. 13s. 11d. was needful to be raised for the maintenance and employment of the poor within The JUSTICES the said corporation, and that the sum of 2867. 6s. 11d. was the proportion, part, and share thereof set on the said hamlet; and also upon the appeal of the said churchwardens and overseers against a warrant under the hands and seals of the Mayor and one of the Justices of the said city, dated 6th September last, directed to the assessors and collectors of the said hamlet, requiring them to assess the said sum of 2867. 6s. 11d. upon the several occupiers of lands, and others liable in the said hamlet; and to hear aud determine the merits of the said appeals. The affidavit in support of the rule stated, that by the statute 10 Anne, the city of Norwich, and the hamlets and liberties of the same, were incorporated for the purpose. of better employing and maintaining the poor there, and that by the said act it was provided, that the Mayor, Recorder, Steward, Justices of the Peace, Sheriffs, and Aldermen for the time being, and 32 other persons, to be chosen as therein mentioned, should be constituted guardians of the poor, and become a corporation for the purpose of carrying the provisions of the act into effect, by the name of "The Governor, Deputy Governor, Assistants, and Guardians of the Poor in the said city and county of Norwich, and liberties of the same." By this act the guardians were empowered from time to time to ascertain what sums would be needful for the maintenance and employment of the poor within the care of the corporation, and also what proportion each parish, town, hamlet, precinct, or liberty, should raise and pay for those purposes, and to certify the same to the Mayor and Justices for the time being, which Mayor and Justices, or any two of them, were empowered to issue their warrant, and require the churchwardens and overseers of the poor of every parish, &c. to rate and assess the amount on the respective inhabitants, and on every par |