to connect the justices with the act of the officer; cannot amount. The dis 1822. STANLEY against FIELDEN. D. F. Jones and J. Parke, in support of the rule. There is no ground whatever for maintaining the verdiet, as against Fielden. By the acts of parliament it is not required, that the justices signing the warrant should be the samé justices as those who signed the ori 1822. STANLEY against FIELDEN. ginal authority; and, in the present instance, Fielden had not, in fact, interfered in any antecedent stage of the proceedings; he was justified in presuming that the previous measures were correct in point of form, the plaintiff having never appealed, though a demand had been formally made upon him, and also a summons issued, to which he did not appear. It would be too much to make Fielden responsible for signing the warrant, even supposing that the justices who signed the authority had acted upon imperfect or informal evidence. He was not bound to enquire upon what evidence they had acted, nor had he the power, in point of law, of quashing or revising their adjudication. But, secondly, the verdict ought not to stand against either of the defendants. The warrant which was proved on the part of the plaintiff entitled the defendants to a nonsuit. It imports an adjudication, such as the statute required; and an unimpeached subsisting conviction or adjudication cannot be questioned in the form of an action of trespass. Massey v. Johnson (a), Strickland v. Ward. (b) Supposing, however, the warrant not to be conclusive as an adjudication, the proceedings which were given in evidence were sufficient to support it. The stat. 54 G. 3. c. 109. embodies the provisions of the 13 G.S. c. 78., and, according to the 81st section of that statute, the plaintiff should have appealed, if there were any ground of complaint; and it is expressly provided, that no proceedings shall be quashed for want of form, or shall be removeable by certiorari. If the plaintiff had appealed, he must have done so within a limited time, whilst the evidence was fresh, and the measures in the (a) 12 East, 67. (b) 7 T. R. 631. execution execution of the act were just commencing; whereas, if trespass can be maintained, no lapse of time will sanction the order of the justices. Upon an appeal, too, the plaintiff must have stated some specific objection, whereas, by the present action, he casts it upon the defendants to prove and maintain every step of the proceedings. As to the next point, it appears, upon the evidence, that information was laid before the magistrates by the surveyor, and it was not necessary, under this act of parliament, that there should be evidence upon oath. The very language of the act, which is, "made to appear," not "proved," as is found in other acts, seems to shew, that the legislature did not intend to make it imperative upon the justices to require evidence upon oath; and the reason of the difference is apparent. That which was to be made to appear was not a simple matter of fact, as in ordinary cases, but was a matter of judgment, as to the expediency of having a money composition in lieu of statute duty in kind. This was a matter of speculation, depending upon the state of the roads, the price of labour, the supply of materials, and, generally, the circumstances and state of the neighbourhood. In such a case, therefore, the justices were authorised in acting upon their own knowledge, or upon what appeared to them to be satisfactory information. Here, in fact, they had communicated together, and it was not necessary that the information of the surveyor should be laid before them whilst sitting together. They subsequently exercised a joint judgment, which was sufficient. Battye v. Gresley. (a) But, supposing that the surveyor ought to have communi 1822. STANLEY against FIELDEN. 1822. STANLEY against FIELDEN, cated his information to the two justices together, at most the order was not void, but yoidable, and could only be avoided upon appeal. Rex y. Inhabitants of Stotfold, (b) As to the last objection, it was clear, from the evidence, that the surveyor considered, that the whole statute duty in kind, which by the act he was empowered to call for, was necessary for the repair of the main line of road, together with the lateral branches; and it is evident, that the amount of the composition in money was calculated upon that principle. If the demand was excessive, and not required by the state of the road, the plaintiff should have appealed: but, in the present stage of the proceedings, it must be taken that the whole of such duty, if performed in kind, would have been necessary, the calculation of the composition in money shews what was intended; the rate of commutation was regularly fixed by the justices, and promulgated according to the provisions of the act, ABBOTT C. J. I am of opinion that enough has not been done to legalize the demand of this specific sum of money from the plaintiff. It appears from the evidence, that there had been an adjudication of two magistrates that a composition should be paid in lieu of statute duty in kind, and also an adjudication by which the composition was fixed to be at the rate of 8s. 4d. for a cart, three horses, a driver, and a labourer. Before, however, it can be ascertained how much any individual ought to pay as a composition in lieu of statute duty, it must be ascertained in some manner and by some competent authority how many days' labour will be required (a) 4 T. R. 596 to to repair the road. Now, that certainly has not been done here, in distinct terms, in this case. It appears upon the evidence, that the turnpike surveyor having first required, from the surveyor of the highways of the township, a list of the several persons liable to statute duty, made an assessment at the rate of sixpence in the pound upon the whole annual value returned. He seems to have taken it for granted that he was entitled to require from the several townships through which the road passed, a composition for the whole statute duty which, by law, he was entitled to demand, whatever the state of the roads might be. Now, I am of opinion, that he had no such right. If there were no composition, the inhabitants of the several townships could only be called upon to do so many days' statute duty as would be absolutely necessary for the repair of the roads; and if a composition be called for instead of the statute duty, that composition ought to be an equivalent for that number of days' statute duty. I think, therefore, in this case, that before the demand was made upon the plaintiff, it ought to have been ascertained, by persons having competent authority for that purpose, that so many days' statute duty would be required to put the road in question into a complete state of repair, and that it ought to have been notified to the inhabitants of the parish or township, that the composition required of them, of sixpence in the pound upon the annual value of their lands, was calculated upon the principle that it would require so many days' statute duty to repair the road. That not having been done in this case, I think, that the justices had no authority whatever to issue the warrant, and consequently that this rule must be discharged, 1822. STANLEY against FIELDEN. |