indictment for a breach of duty. Upon the discussion of the question, in the present case, the counsel for the company relied chiefly upon the circumstance of the indictment being found at the Quarter Sessions, where the company could not appear and take their trial, even if so disposed, as a corporation can only appear by attorney, and the appearance at the sessions must be in person. We think there is no weight in this objection. It may, indeed, impose some difficulty upon the prosecutor, and render his proceedings more circuitous, as he may be obliged to remove his indictment by certiorari into this court, in order to make it effective; but the liability of the corporation is not affected by that. In The King v. Gardner (18), it was objected, that a corporation could not be rated to the poor, for the remedy by imprisonment on failure of distress was impossible; but the Court considered the objection as of no weight, though it might be that some difficulty would be imposed in enforcing the rate. The proper mode of proceeding against a corporation to enforce the remedy by indictment, is by distress infinite to compel appearance, after removal by certiorari, as suggested by Parke, B., in this very case, reported in 9 Car. & Pay. 469, and as appears in 2 Hawkins, c. 27. s. 10, and the cases cited in Vin. Abr. ' Corporations,' B, a. We are therefore of opinion, that, upon this demurrer, there must be

the cause of action," is not complied with, where the notice omits to state the place where the act complained of was done.

A tender of amends by the Justice does not cure such a defect.

[For the report of the above case, sce 11 Law J. Rep. (N.s.) Q.B. p. 291.]

1842. June 21.

THE QUEEN, ON THE PROSECU-
TION OF THE INHABITANTS OF
THE TOWNSHIP OF RASTRICK,
v. SCOTT AND OTHERS.

Railway Act-Power to divert RoadsIndictment.

By the act for making a railway between Manchester and Leeds, the company were empowered to divert or alter the course of any roads or ways, or raise, sink, or deepen them, so as to carry them over, under, or by the side of the railway; and by a subsequent provision, in all cases wherein any part of any carriage-road, &c. should be found necessary to be cut through, raised, sunk, taken, or so much injured as to be impassable or inconvenient for passengers, &c., the company were required, before any such road should be cut through, &c., to cause a good and sufficient carriage-road, &c. to be set out and made instead thereof, as convenient for passengers and carriages as the road cut through, &c., or as near thereto as might be, and should cause the same to be put into good and substantial order and condition :-Held, that the company were indictable in the common form, for obstructing a highway, where they had built a wall across it, and had given another way to the public, which was neither as convenient as the old way, nor as near thereto as might be.

[For the report of the above case, see 11 Law J. Rep. (N.s.) Q.B. p. 254.]

Action, Notice of. See Justice of the Peace.
Appeal-Mandamus to hear, where decision of Ses-
sions, that grounds of appeal are insufficiently
stated, wrong. That "the respondent parish have
acknowledged the pauper's husband to be an in-
habitant of and legally settled in their parish, by
relieving the said husband and the said pauper, as
part of his family, from time to time, during the
last six years, whilst the said husband and pauper
were resident in other places out of the respon-
dent parish; and particularly by giving relief to
the said husband and the said pauper, as part of
his family, several times in the years 1839 and
1840, during which he and his family were re-
siding in the town of Liverpool," a sufficient
ground of appeal, 3

Rule of Sessions requiring original order of
removal to be filed by the appellants, on entry of
appeal with clerk of the peace-semble, cannot be
supported, 57

Insufficiency of grounds of appeal, setting up
a settlement subsequent to that stated in the exa-
mination, by hiring and service, by reason of its
not being stated to have been for a year; and
where defect not cured by referring to examina-
tion, 72

Quarter Sessions right in dismissing second
appeal, where, after dismissal of appeal against
order of removal, the grounds of appeal appearing
not to have been served in sufficient time, sub-
ject to a case, and the appellants tender no case,
but, at the same sessions, obtain an order for en-
tering and adjourning an appeal against the same
order of removal. Semble, (per Patteson, J.,) that
the statute 9 Geo. 1. c. 7. s. 8. does not apply to
the case where notice of appeal has, but the state-
ment of grounds of appeal has not, been served in
time, 79

Necessity of stating in ground of appeal setting
up settlement by renting tenement, that the pau-
per resided forty days in the parish, 80

Court of Quarter Sessions bound to hear,
where order of removal made on the 22nd of
February, and copy and examination received on
the 26th by the appellant parish. Next Sessions

on the 29th of March; but no notice of appeal
having been given, the pauper was actually re-
moved on the 12th of April; at the Midsummer
Sessions, held on the 28th of June, an appeal en-
tered and respited; and on the 2nd of October a
notice of appeal given, to be tried at the then next
Sessions, October 18th, 85

Appeal-Insufficiency of grounds of appeal, setting
up settlement by renting a tenement, omitting to
state that the party resided forty days in the
parish, 115

See Examination. Lunatic. Mandamus. Spe-
cial Case.

Arrest-Party justified in giving in charge, and con-
stable in arresting, without warrant, one who has
been guilty of a breach of the peace, if reasonable
grounds for apprehending its continuance or im-
mediate renewal, but not otherwise: and circum-
stances from which such an inference is raised for
the consideration of a jury. Insufficiency of plea
in action for false imprisonment, by reason of omis-
sion to aver that breach of the peace was continu-
ing, or to shew grounds for apprehension of its
continuance or renewal, 5

Bastard-Where no settlement gained in separate
township in which pauper was born, 89

See Vagrant Act.

Bridge-Liability of county to repair structure,
though water does not at all times flow under the
arches; and whether arch or arches over stagnant
water may be considered as a bridge, 51

Case-Tender of, no obstacle to mandamus to enter
continuances and hear appeal, 84

Certainty. See Indictment.

Certiorari-Commissioners of Police prosecuting
indictment for an assault on one of their officers,
entitled to costs under 5 & 6 W. & M. c. 11. s. 3,
where defendants remove indictment by certiorari,
and afterwards suffer judgment by default, 19

Prosecutor of indictment for libel, not named
in the libel, not a party grieved or injured within
5 W. & M. c. 11. s. 3, so as to be entitled to the
costs of presecuting, 61

Church-rate-Order of Justices for payment of, not
bad, because made upon complaint of church-
wardens de facto and not de jure. Jurisdiction of
Justices not ousted by suit commenced in Con-
sistorial Court, but stated to have been abandoned
at the time of the churchwarden's complaint, 9

Where rate made under local act altogether
bad, by reason of its being a joint rate for various
purposes, in respect of some of which purposes
some of the property included in the rate was not
rateable; and as to rate being bad by reason of
being ante-dated, and made for a period ante-
cedent to the date, 76

Churchwarden. See Church-rate.
Churchwardens and Overseers. See Parish Property.
Commissioners of Police-Right to costs of prosecu-
tion for assault on police officer, 19
Commitment. See Vagrant Act.
Conspiracy-Necessity of stating in indictment for
conspiracy to cheat and defraud of goods and mer-
chandise, to whom the goods and merchandise
belonged, 102

Constable-Liability of, to action for executing war-
rant good on the face of it, if Magistrate having a
limited jurisdiction exceeds it; and necessity of
shewing on face of plea, where he justifies under
warrant, such facts as bring the case within the
limited jurisdiction, 22

See Arrest.

Conviction. See Game.

Coroner-Where inquisition taken before borough
coroner quashed for want of jurisdiction, in a case
of accidental death, the cause of death occurring
in the county, but the death taking place in the
borough. Semble, 2 & 3 Ed. 6. c. 24, as to in-
quiring in cases of felonious killing, in county
where death has taken place, though the stroke
was given in a different county, not applicable to
boroughs, 86

Corporation-Indictment sustainable against corpo-
ration aggregate, for a non-feasance, in their cor-
porate name, 134

Costs-As to giving, where respondents have offered
to abandon order of removal, 106
See Certiorari.

Election. See Indictment.

Error-Defendant discharged on writ of error on
judgment sentencing to hard labour, where offence
is not subject to that punishment, 82

Estate Settlement by, destroyed under section 68.
of 3 & 4 Will. 4. c. 76, if party ceases to inhabit
within ten miles, and not revived if he returns to
inhabit within that distance, 18

Ceasing to inhabit, by being removed as a
pauper lunatic to lunatic asylum, within sec. 68.
of Poor Law Act, 42

Settlement by-Devise of real estates to trus-
tees, to sell and stand possessed of the monies in
trust to divide between nine children; the same
to be to the sole and separate use of such daugh-
ters as should be married before testator's decease.
Pauper marries one of the daughters before the
death of the testator; and after his death, the pauper
and his wife reside in a house, part of the property,
for more than forty days, paying rent to the trus-
tees; after which the property is sold, and the
money divided: the pauper gains no settlement, 48

Evidence -What an admission that parties were
overseers at the time of order of guardians of
union to pay money, and of mandamus to compel
such payment, 129

-

See Examination.
Examination-Order of removal grounded on exa-
mination of pauper (a woman), "I am twenty-
eight years of age; I was born illegitimate at S;
I never did any act to gain a settlement," bad,
on grounds of objection, that no legal evidence of
a birth settlement in S. is disclosed in the exami-
nation, such evidence being only hearsay; and,
that the order and examination are bad on the
faces thereof. Per Patteson, J.-This examina-
tion contains no legal evidence of the place of
birth, the time of birth, or the fact of illegitimacy,
34

Under general ground of objection, that exa-
mination "is informal, and wholly insufficient in
law, and bad on the face of it," and that "it does
not contain any sufficient evidence of a settle-
ment," appellant parish cannot object, that some
material facts appear not to have been proved be-
fore the Magistrates by legal evidence, especially
where there are other grounds of appeal, pointing
out specific defects on the face of the examination,
and not noticing this: e. g. where settlement by
payment of parochial taxes relied on, and it does
not appear that the parish books were produced
or accounted for, or any other legal evidence of
rating given. The respondent parish relied on a
settlement gained by the pauper's husband's
father, by payment of parochial taxes. It ap-
peared on the face of the examination, that during
the period in which such taxes were paid, the
pauper's husband resided with his father as one
of his family:-Held, that this was a sufficient
statement, on the face of the examination, that
the pauper's husband was unemancipated when
his father acquired the settlement, 38

Where order of removal proceeds upon the
ground that a former order was made between the
same parishes, against which there was no appeal,
former order should be produced or accounted for
upon the taking of the examinations; and exa-
minations merely stating the fact of such an
order, if objected to for that omission, bad, 107
See Appeal.

False Imprisonment-Insufficiency of plea of justi-
fication in action for, stating that plaintiff unlaw-
fully endeavoured to obtain a book belonging to
partners of the defendant, by false pretences, not
averring intent to defraud, and that defendant,
having good and probable cause to suspect that
plaintiff had by such false and fraudulent pre-
tences unlawfully endeavoured to obtain the book
for unlawful and unauthorized purposes, assaulted
and gave him into custody, 13

Habeas Corpus. See Vagrant Act.

Hampton Court Palace-Rateability of occupiers of
apartments in, 65

Hearsay Evidence. See Examination.

Highway-Where form of order of Justices, under
5 & 6 Will. 4. c. 50. s. 65, directing party to cut
hedges, &c., bad, so as to afford no justification
to surveyor in trespass for cutting the hedges,
&c., 10

Insufficiency of plea in replevin, justifying
taking goods for highway rate, under Magistrate's
warrant, for not shewing on the face of it any facts
to bring the case within the jurisdiction of the
Magistrates, 22

Construction of railway act, upon the question
whether company are indictable for obstructing
highway by building a wall across it, and giving
the public a way neither so convenient nor so near
as the old way, or as might be, 137

Indecency. See Indictment.

66

at

Indictment-for assault, found at the Quarter Ses-
sions for the borough of Stamford; describing
defendants as of the parish of S. B, in the county
of Northampton, and within the borough of S,
and alleging offence to have been committed
the parish aforesaid, in the borough aforesaid."
Certiorari and venire awarded into Lincolnshire,
and defendants found guilty by a jury of that
county:-Held, bad in arrest of judgment: al-
though the title of the corporation of Stamford,
as given in the Municipal Corporation Act, is
"in the county of Lincoln;" and although in
schedule O. of the Boundary Act, the borough of
Stamford is enumerated among those for the same
county; and although it appeared in evidence on
the trial, that the offence was committed within
500 yards of the boundary of the counties.
Queen's Bench no power to enter any suggestion
to cure the defect, 55

- against two persons, charging them with
meeting in a certain open and public place, for
the purpose and with the intent of committing
and perpetrating with each other, openly, lewdly,
and indecently, divers nasty, wicked, filthy, lewd,
beastly, unnatural, and sodomitical practices, and
then and there unlawfully, wickedly, openly,
lewdly, and indecently, committing and perpe-
trating with each other, in sight and view of divers
of the liege subjects, &c., in the said public place
there passing and being, divers such practices as
aforesaid, too general, and bad in point of law, 74

Sufficiency of indictment charging defendant
with unlawfully having naval stores in his pos-
session, he being a contractor, with respect to
averment of time when he was not a contractor, 82

Omission to state whose property goods and
merchandise were, in an indictment for conspi-
racy to cheat and defraud prosecutors of, renders
indictment bad, 102

NEW SERIES, XI.-MAG. CAS.

Indictment-Prosecutor not required to elect whe-
ther he will proceed upon indictment for felony
or misdemeanor, where both founded on same
subject-matter, 105

against corporation, in their corporate name,
for a non-feasance, 134

against railway company, having power to
divert roads, for obstructing highway by building
wall across it, where they had given another way
not as convenient or as near to the old way as
might be, 137

Where railway company indictable for ob-
structing highway, 137

Insane Pauper. See Lunatic.

Judgment Effect of punishment not warranted by
offence, with respect to prisoner's right to be dis-
charged on writ of error, 82

Jurisdiction-Necessity of shewing, on order by
Quarter Sessions, on appeal against overseers'
accounts, by stating that they are the annual ac-
counts, 15

See Constable. Highway. Overseer.
Justice of the Peace-not protected by 43 Geo. 3.
c. 141, where no jurisdiction to convict, though
conviction quashed, 45

Notice of action omitting to state place where
act complained of was done, insufficient, though
Justice has tendered amends, 137

Lunatic-Notice of appeal against order, under sec-
tion 42. of 9 Geo. 4. c. 40, to be given under pro-
visions of s. 54, and not s. 46, 26

Removal of pauper lunatic to lunatic asylum,
a ceasing to inhabit, within sect. 68. of Poor Law
Amendment Act, so as to deprive him of settle-
ment by estate, 42

Lunatic Asylum-Power of visiting Justices to dis-
miss chaplain of, 30

Maintenance of Poor by township and parish jointly,
where conclusive that both can have benefit of
43 Eliz. c. 2, 131

Mandamus-to hear appeal against order of removal,
where Sessions have wrongly decided that grounds
of appeal are insufficiently stated, 3

-Refusal of Court to interfere where Sessions
have disposed of case rightly upon the facts,
though the reasons on which their decision rested
are not satisfactory, 57

At what time application for rule nisi to enter
continuances and hear appeal against order of re-
moval should be made, 80

Appellants not precluded from obtaining, to
enter continuances and hear appeal, where appeal
dismissed by Sessions, who tender a case which
the appellants refuse to accept, 84

Master and Servant-Commitment of pitman under
4 Geo. 4. c. 31. s. 3, "to remain and be corrected
and held to hard labour," void. Question whether
void for uncertainty, in not pointing out ground
of commitment, 127
Misdemeanour-Where indictment for, bad for gene-
rality, 74

Municipal Boundary Act. See Indictment.

Naval Stores-Offence of unlawfully having in pos-
session, not being a contractor, not punishable
with hard labour, 82

U