know what he is to pay. Till it is known what the costs are, there is an insuperable objection to our issuing the writ to give effect to this order. Rule discharged, without costs. 1844. THE QUEEN v. CLARK. THE QUEEN v. The Justices of KESTEVEN. THIS was a rule calling upon the justices of the parts of Kesteven, in the county of Lincoln, to shew cause why a mandamus should not issue to them to enter continuances and hear an appeal against an order, dated 1st September, 1843, removing Miriam, the wife of William Welbourn, and her four children, from the township of Spittlegate to the parish of Great Ponton, both in the said parts. April 25th. The examina- ment in P., The following facts appeared by an affidavit of forty days' resi dence in P. The grounds of appeal stated, "that the pauper, after his service with the said master, and by his consent, for part of the time of the said apprenticeship, to wit, from May, 1833, to the end of the said term, served one S. Nowell, of Grosvenor-square, Pimlico, under the said indenture, in a third parish, H., and resided therein more than forty days during such service, being single," &c. At the trial, the case of the respondents being admitted, they objected that the grounds of appeal were not sufficient in particularity as to the house in H. where the alleged service took place, to entitle the appellants to give evidence in support of that settlement. The sessions, after argument, being of that opinion, confirmed the order without hearing the evidence. Upon motion for a mandamus to them to enter continuances and hear the appeal-Held, (overruling Regina v. The Justices of Carnarvonshire, 2 Q. B. R. 325, and Regina v. The Justices of the West Riding, Id. 331,) that, as the sessions had not declined jurisdiction, but had entertained the point, which was one peculiarly for their consideration, (not being a preliminary question of law, as whether a particular rule of practice is consistent with law), this Court would not interfere by mandamus. Where such questions are raised at sessions, the justices, if they have any doubt, should not stop the case, but hear and determine it upon the facts, and reserve the point for the consideration of this Court. The sessions confirmed the order of removal, subject to a case which concluded thus: "The question for the opinion of the Court of Queen's Bench is, whether the grounds of appeal were insufficient; if so, the order of removal to stand confirmed, otherwise, continuances are to be entered and the appeal heard:"-Held, that this Court would not hear a case stated with such a conclusion, merely for the purpose of putting the sessions in motion. Quære, whether the reservation of a case in such a form, which precludes the appellants from bringing it up, deprives them of their claim to the remedy by mandamus. 1844. THE QUEEN V. The Justices of KESTEVEN. the attorney for the appellants, who conducted the case at the Bourn Sessions, where attornies only practise: The examinations on which the order was founded set up a settlement acquired by William Welbourn, the husband of the pauper, in Great Ponton, by apprenticeship to John Green, stonemason, for six years, under an indenture dated 24th of March, 1828, and service under it, and residence in Great Ponton more than forty days during such service; and stated, that he slept in Great Ponton the last night of the apprenticeship. Notice of appeal and a statement of the grounds of appeal were duly served, denying that the pauper slept the last night in Great Ponton; and setting up a settlement acquired in Harlaxton, (inter alia), as follows:"And also that the said W. Welbourn, after his service with his master, the said John Green, for part of the said term of the said apprenticeship, with the consent of his said master, to wit, from May or June, 1833, to the end of the said term, served one Samuel Nowell, of Grosvenor-square, Pimlico, in the county of Middlesex, builder, under the said indenture in the examination mentioned, in the parish of Harlaxton, in the said parts of Kesteven, in the said county of Lincoln, and inhabited and resided therein more than forty days during such service, being then single and unmarried, and without child or children." At the sessions, the attorney who conducted the case for the respondents, as their primâ facie case was admitted, proceeded to take an objection to the statement of the grounds of appeal, previously to evidence being entered into for the appellants. The objection was, that it was incompetent for the appellants to go into or give any evidence in support of the alleged settlement in Harlaxton, inasmuch as the statement of the grounds of appeal did not set forth 1844. v. The Justices of the particular house in Harlaxton in which W. Welbourn resided during his service under the indenture, THE QUEEN and did not specify or particularise the house by the name of the landlord, or in any other manner; and that this was the more material, as Mr. Nowell did not reside in the parish, but more than one hundred miles from it, being only employed there in building a large hall, for which purpose he employed more than two hundred workmen, from all parts of the country, some lodging in the parish, and some in the neighbouring villages, but almost all totally unknown to their employer. He cited Regina v. The Justices of Sussex (a) in support of the objection. It was contended by the appellants, that this objection was invalid; but the justices, after argument, determined that the statement of grounds of appeal relating to the alleged settlement in Harlaxton was insufficient in particularity, because the house in which W. Welbourn resided at Harlaxton was not specified by the name of the landlord thereof, or in any other manner, and consequently they, the justices, could not receive any evidence support of such alleged settlement. in The justices, therefore, confirmed the order of removal, subject to the opinion of the Court of Queen's Bench in manner following, (that is to say)-If this Court should be of opinion that the statement of the grounds of appeal was insufficient in particularity, then the order of removal to stand confirmed; but should this Court be of a contrary opinion, that continuances should be entered, and the justices should proceed to hear the said appeal. The affidavit also stated, that a witness was present on the part of the appellants, ready to be examined as to the fact of the alleged settlement in Harlaxton; and also, that the deponent was not aware, at the time of tak VOL. I. (a) 10 A. & E. 682. M N. S. C. 1844. THE QUEEN v. The Justices of ing the case, of the late determination of this Court not to enter upon cases where the opinion of this Court is not conclusive of the appeal, on the hearing whereof the KESTEVEN. point in dispute has arisen; and that, unless this Court will allow a writ of mandamus to be issued, the appellants will have no remedy against the decision of the said justices, although the case was granted by the justices under a belief that it would be received. Mellor shewed cause, and took a preliminary objection, that, as, at the conclusion of the appeal, when the sessions had decided against the appellants on the insufficiency of the grounds of appeal, they applied for and obtained a special case, the parties having chosen their remedy, this Court will not interfere by mandamus : Rex v. The Justices of the West Riding (a), Rex v. The Justices of Suffolk (b), and Rex v. The Justices of Northamptonshire (c). Whitehurst, contrà.-There is no doubt that where a party has not been heard he is entitled to a mandamus, unless the reservation of a case deprives him of it: Regina v. The Justices of Carnarvonshire (d). The principle is, that, where there has been another complete remedy given by the sessions, this Court will not grant a mandamus. But that is not the case here, the appellants have no such remedy, as the case, not being granted generally, but with such an alternative as this Court will not allow to be submitted to them, cannot be brought up; so, if the mandamus is refused, they are without redress. In Regina v. Wistow (e) Lord Denman, C. J., said, that this Court could not hear a case so stated, that the sessions asked this Court to de cide the case, and appeared also to reserve to themselves the right of coming to a decision of their own upon it afterwards. [Patteson, J.-It does not appear that you objected to the form, or, if you had asked the sessions, they might have drawn it up differently.] A subsequent sessions could not alter it; when a judgment is given in a particular form, the chairman must abide by it, and then it might have been too late to apply for a mandamus. [Wightman, J.-You might have abandoned your case, and then you would have brought yourself within one of the cases cited.] There is no obligation on parties to do that; unless the rule of law is imperative, they ought not to be turned round on a technical objection. If this mandamus is refused by an astute construction of the practice, the ends of justice will be defeated by preventing the merits from being heard. Lord DENMAN, C. J.-We had better hear the case. Mellor.-There are, then, two answers to this application for a mandamus: 1. The first question is, whether the sessions have declined a jurisdiction which they ought to have exercised; if they have not, but have decided upon a point of law, or fact, whether they are right or wrong in their decision, this Court will not constitute itself a Court of appeal to correct them. The division between grounds of appeal and examinations is twofold: they may be defective in substance, that is, the facts may be particularly stated, but sufficient facts not stated, or they may not be stated with sufficient particularity; as is put by Coleridge, J., in Regina v. Charlbury and Walcott (a): "The antagonist either says, that they have not given him sufficient information to entitle them to (a) 3 Q. B. R. 378. 1844. THE QUEEN บ. The Justices of KESTEVEN. |