tices, is conclusive; and if a pauper is sent to a parish without an order to demand relief on the ground that she belongs to that parish, and relief is given to her, it is some legal evidence of a settlement in that parish. (Reg. v. Sow, Q. B. 93; 7 Jur. 297). The clerk of the board of guardians would know on account of what parish relief was ordered, by means of the verbal directions given to him; (Reg. v. Hartpury, & Q. B. 566; 11 Jur. 486); and this distinguishes the case from Reg. v. Bradford (8Q. B, 571, note (h); 10 Jur. 753) and Reg.v. Little Marlow, (10 Q. B. 223; 11 Jur. 240). The board of guardians are agents for the several parishes included in the union, for the purpose of making their act of ordering relief prima facie the act of the parish. (Reg. v. Crondall, 10 Q. B. 812; 11 Jur. 922). [He also cited Rex Edwinstowe, (8 B. & C. 671). The clerk is the proper officer of the board of guardians for writing such a letter as this. [Erle, J.-Is there any statute which defines the duties of clerk ?] The 46th section of stat. 4 & 5 Will. 4, c. 76, authorises the Poor-law Commissioners to direct the guardians of a union to appoint paid officers for superintending or assisting in the administration of the relief and employment of the poor, among whom is the clerk; and subsequent statutes throw/duties upon him. By sect. 68 of stat. 7 & 8 Vict. c. 101, he is authorised, if duly empowered by the board, to make or resist any application, claim, or complaint, or to take and conduct any proceedings, on behalf of the board, before any justice of the peace, although he is not an attorney. Li,

Whigham, contra.The letter, which is said to affect the township of Wigan, which is one of nineteen town ships in the Wigan union, was only dictated by the clerk of the board of guardians; and the schedule is merely descriptive of the pauper, for the purpose of identifying her. In Reg. v. Crondall (10 Q B. 812; 11 Jur. 922) the application of the pauper was shewn, and an entry of the allowance, signed by the chairman of the board of guardians, was produced. [He cited Reg.v. Little Marlow, (10 Q. B. 223; 11 Jur. 240), and Patteson, J., in Reg. v. Bradford, (8Q.B.571, note (h); 10 Jur. 753).] The order for relief ought to have been entered in the book of the board of guardians of the union, and that book should have been produced. (Reg. v. Shitlington, 1 New Sess. Cas. 432).

the board of guardians of the Wigan Union authorised the writing of the letter, and that the books of the board ought to have been produced; but it is not open to Mr. Whigham to make that objection on behalf of a parish included in that union. Suppose some irregularity in the proceeding for instance, that at a particular meeting of the board the order for the relief was made, but that the chairman had neglected to countersign the order, or that the seal of the board had not been affixed; still the letter, and the fact of relief following it, would be evidence against the appellant parish. The ground of the decision in Reg. v. Crondall (10 Q. B. 812; 11 Jur. 922) was, that the parish was represented at the board of guardians, because the Court must assume that the guardians of the parish were at the board; and that applies in this case, as well as in that. Further, the clerk had sufficient authority to write the letter. When a statute authorises the appointment of officers to act in certain matters, the Court is justified in treating them as recognised officers, and certain duties devolve upon them ex vi termini-as, in this case, the writing of letters upon the clerk of the board of guardians. The clerk being the channel by which one board of guardians communicates with another, there is sufficient ground to presume an authority for writing this letter; and this letter binds the particular parish on behalf of which it is written, by order of the board of the union of which it is a member.

WIGHTMAN, J. Reg. v. Crondall (10 Q. B. 812; 11 Jur. 922) is a decision, that relief given to a pauper by order of the board of guardians of a union, on account of a parish in the union, is evidence that the relief was given by authority of the parish. Therefore the letter, with the document appended to it, is sufficient, if it was written by the authority of the board. The question, then, is, whether the party writing the letter had sufficient authority from the board for writing it. The clerk of the board of guardians is an officer recognised by statute, and his appointment is by direction of the Poor-law Commissioners; and the carrying on a correspondence on behalf of the board, upon the subject of relief to be given on account of one of the parishes in the union, is presumptively part of his duties,

3

ERLE, The question on these examinations is, whether there is any legal evidence of an admission by the township of Wigan, that the settlement of the pauper is in that township. The board of guardians is authorised to appoint a clerk, and he is clearly an agent of the board for the purpose of making such an admission as this that is to say, that they ordered relief in this case. Their clerk has written a letter to the board of guardians of another union, upon the footing that such an order had been made by them; their clerk is prima facie agent of the board of guardians for writing such a letter, and that letter is shewn to be in the handwriting of the man who had habitually written letters for him. I think that there was some legal evidence upon which the sessions might find that the settlement of the pauper was in the appellant parish. Order of sessions confirmed. helife2 9798 W

COLERIDGE, J.-I think that the rule must be discharged. The whole question is one of agency simply, whether certain statements and net of were done with sufficient authority. If the board of guardians proceeded regularly in making the order for relief, and in giving relief, that would be evidence of a settlement in the appellant parish. But it is said, first, that there is no evidence of the board having acted in the matter; and, secondly, that the proceedings of the board were not conducted in so regular a way as to make their acts evidence against the appellant parish. The letter, which must be taken to have been written by the clerk to the board of guardians of the Wigan Union, speaks of the pauper being resident within another union, and desires the guardians of that union to relieve the pauper on account of the Wigan Union. Appended to it is a schedule, filled up by the person who wrote the letter. Mr. Whigham observes, that no importance is to be attached to it; and if the two were inconsistent, there might be some weight in that observation. But there is no inconsistency, and the schedule confines the relief to be given expressly on account of the appellant pa- Bastardy Order Affiliation under the 7 & 8 Vict. c. 101 rish 3 in addition to which, the money was paid in the when corroborative Evidence may be dispensed with. Second Application Appeal to Quarter Sessions 1391 first instance by the respondent parish, and it was received by the clerk of the board of guardians of the The Mother of a bastard Child applied to the Justices at Chorley Union to recoup the respondent parish, haya Petty Sessional Division of I., in the County of O enfor an Order on the putative Father, which was refused. She subsequently removed into the County of B., and there made a second Application, when the Justices made an Border Against this Order the putative

ing been sent from the board of guardians of the Wigan Union. It is said, that there is no proof that

Lord Denman, C. J., was absent on account of illness.

BAIL COURT-HILARY TERM. Τ
REG. v. THE JUSTICES OF BUCKINGHAMSHIRE.Jan. 24

and Feb. 24.

1901

pose the woman attends, and she cannot satisfy the justices in the first instance, is she to be concluded by the dismissal of the case? So, if the order is abandoned by the woman, there is no reason why she should not apply a second time; the statute does not prevent two applications being made on this point. [They cited Reg. v. Walker, (14 Law Journ., N.S., M. Č., 120); Reg. v. Hinchliffe, (16 Law Journ., N.S., M. C.,78); and Reg. v. Bridgeman, (15 Law Journ., N.S., M. C., 44).] Then as to the second objection. The 6th section of the 8 & 9 Vict. c. 10, contemplates that evidence shall be adduced in support of the matter before the court of quarter sessions, and requires that the evidence of the mother shall be corroborated, in some material particular, by other testimony. But, if the facts are admitted by the defendant, there surely can be no need of corroboration. This, in effect, was what was done. A question of law being raised, and decided against the appellant, he states he has no other objection to take; the justices then confirm the order, which they are right in doing. There is no necessity to adduce evidence under such circumstances; and it has been held, that, although a statute creating an offence requires the conviction to be upon the oath of one or more witnesses, if the party admits the fact no evidence need be adduced. (Rex v. Cage, 1 Str. 545).

second application would be in the nature of an appeal to the petty sessions, although there is no appeal by the mother to the quarter sessions. [He cited Rex v. Tenant (2 Ld. Raym. 1423) and Rex v. Heath, (5 Adol. & Ell. 343).] The court of quarter sessions ought to have quashed the order, on the ground of the want of jurisdiction, instead of which they held it waived; for this could not be. In Smith v. Sparrow (16 Law Journ., N. S., Q. B., 139) the Court held, that where an arbitrator had, without any authority under the submission, examined the parties to the reference, but the party objecting nevertheless proceeded to examine the opposite party, such objection was not waived. Then as to the second point. This depends on the words of the 6th section of the 8 & 9 Vict. c. 10, which enacts, that, on the trial of any such appeal &c., the justices shall hear the evidence &c. It is considered, therefore, that, under these words, the sessions are bound to hear the evidence de novo: it never could have been the intention of the Legislature to deprive the appellant of the right of being heard before making an order. [Erle, J. The woman is admissible as a witness.] The section not only provides for the evidence being admissible, but states that the sessions shall not confirm the order so appealed against, unless the evidence of the said mother shall have been corroborated in some material particular. Under the 4 & 5 Will. 4, c. 76, s. 72, where the order of sessions omitted to state that the evidence of the mother had been corroborated in some material particular, it was held bad. (Reg. v. Read, 9 Adol. & Ell. 619). This, it is submitted, fully supports that objection. [Erle, J.-No doubt that is so, if evidence be tendered, and the justices refuse to hear it. If no evidence is required of the facts, by reason of admission, the case would resemble that of other trials. When the justices determined the point of jurisdiction, and the appellant stated there was no further objection, the order was confirmed as of course.] Cur, adv. vult.

On a subsequent day (Feb. 24) judgment was deli

Wells, in support of the rule.-As to the first objection, it is submitted, that the hearing before the justices at Watlington operated as an estoppel, on the well-known maxim, Nemo bis vexari pro eâdem causâ." The case was heard and determined on the merits; and this Court will not, if a question has been determined on the merits, inquire into the matter. (Reg. v. The Inhabitants of Evenwood and Barony, 3Q.B. 370; Reg. v. The Inhabitants of St. Mary, Lambeth, 7 Q. B. 587; Reg. v. St. Peter, Droitwich, 16 Law Journ., N. S., M. C., 38; Reg. v. The Inhabitants of Leeds, 17 Law Journ., N. S., M. C., 1). Even if there were a waiver of objection by consent, it will not operate, for consent cannot confer jurisdiction. (Law-vered by rence v. Wilcock, 11 Adol. & Ell. 941; Jacquot v. Boura, 5 Mee. & W. 155). It is contended, that the test, of the justices having jurisdiction over the subject-matter, is, whether they had the power to enter upon the inquiry; relying on the authority of Reg. v. Clarke. On reference to that case, however, the distinction appears to be, that the justices had jurisdiction, unless the defendant dissented; and that having so done, but acted in direct opposition to such dissent, it might fairly be concluded that he intended to withdraw such dissent. The cases of Reg. v. Walker and Reg. v. Bridgman, cited on the other side, are clearly distinguishable. The first was an application by a woman, under the 7 & 8 Vict. c. 101, for an order on the alleged putative father of her bastard child, when an objection was raised, that a prior order had been made on the same complaint, and that it was incumbent on the applicant to shew that such prior order had been quashed, not on the merits, to enable her to apply again, under the 8 Vict. c. 10, s. 4. This was founded on the express words of the statutes referred to, allowing a second appeal in certain cases. In the other case, a new right was conferred on the mother, in addition to that given to the guardians under the 2 & 3 Vict. c. 85. The effect of a

The 8 & 9 Vict. c. 10, s. 6, enacts, "that, on the trial of any such appeal before any court of quarter sessions, the justices therein assembled, or the recorder, (as the case may be), shall hear the evidence of the said mother, and such other evidence as she may produce, and any evidence tendered on behalf of the appellant, and proceed to hear and determine the said appeal in other respects, according to law; but shall not confirm the order so appealed against, unless the evidence of the said mother shall have been corroborated, in some material particular, by other testimony, to the satisfaction of the said justices in quarter sessions assembled, or the said recorder."

WIGHTMAN, J., (for ERLE, J.), as follows:-A certiorari to remove an order in bastardy made at a petty sessions, and an order confirming it on appeal made at the quarter sessions, was moved for, on the ground that the question of paternity had been decided upon the merits, against the woman, by a petty sessions in Oxford, before she applied to the petty sessions in question, and that such decision was final, and ousted the jurisdiction of the second petty sessions and of the quarter sessions. But I am of opinion that this ground cannot be sustained. When the second petty sessions received the application of a woman resident within their division, they were a tribunal having jurisdiction over the question. A former decision upon the merits, in favour of the putative father, was an answer to the application, provided it was made out by evidence. This evidence the petty sessions were bound to hear and decide on, It is clear that they had jurisdiction to dismiss the application, if the answer was proved: it follows, that they had jurisdiction to grant the application and make the order, if the proof, in their estimation, failed. At the quarter sessions the same principle applies. The appeal, on this ground, called on the court of appeal to inquire into it. The appellant claimed the exercise of their appellate jurisdiction to quash the order, on proof of this ground; and if the quarter sessions have jurisdiction to try the fact and decide in favour of the appellant, so have they to decide against him; and the correctness of a decision, either in respect of law or fact, of a question properly brought before them, is not to be reviewed upon removal of their order by certiorari. The objection, that the woman was not examined before the quarter sessions, was disposed of on the argument.-Rule discharged; costs of the magistrates, if

any.

¥{ 26"} F!。、 F!!! "ན་

MICHAELMAS TERM.
Cox . BEVAN.-Nov. 3.

บ.

Practice-Outlawry-Teste of Writ of Allocatur exigent.
If a Writ of Exigi Facias is returnable on a Day in
Term, the Allocatur exigent is properly tested on that
Day.

In this case it appeared that the plaintiff, after having obtained final judgment against the defendant, proceeded to outlawry. A ca. sa. issued on the 10th November, 1848, returnable on the 21st. An exigi facias issued on the 24th November, returnable on the 11th January, 1849, in term, and it was filed on the 27th January. An allocatur exigent issued, and bore teste on the 11th January.

fourth issue, if the Court should be of opinion that the intention of the parties that the defendant should keep verdict on that issue ought to have been found for the the 5007, if he never made the lease. The object of the defendant. The jury found damages on the first count tenant in making such an agreement is, that he may 50%., and on the second count 250%. In the following have a security that he shall keep the land for a speciterm, my Brother Shee moved for a new trial, on the fied term, so that he may safely lay out money in im ground that the third and fourth pleas ought to have provements at the commencement of his term, of which been found for the defendant, and that there was no he may reap the benefit before his term has expired. evidence to support the count for money had and re- He may be reasonably supposed to have been willing to ceived. On shewing cause against the rule, it was not pay an annual rent for the possession of the land, but denied that the third issue ought to have been found for not to be willing to pay a bonus or premium, unless he the defendant, the plaintiff having only paid 250%., in got the security of a term; and therefore it is, that, in part of the 5007. mentioned in the agreement; but it was express terms, he states that the money is to be paid as contended that there was no ground for granting a new a bonus for the lease, not as a consideration for making trial on that account, the plea being, as was insisted, an the agreement. The lease, then, not having been immaterial plea, the payment of the sum of 5007. not granted, the consideration must, after such a lapse of being, as was said, a condition precedent. With respect time, be considered to have failed; and the count for to the fourth issue, it was contended that the verdict money had and received is, consequently, maintainable. was properly found for the plaintiff. The burthen of Under this state of circumstances, the defendant is enproof lay on the plaintiff, who had alleged, in the decla- titled to have the verdict entered for him on the fourth ration, that the defendant could have granted a lease; issue, and the verdict for the plaintiff on the other but it was contended that the recital at the commence-issues will stand.-Judgment accordingly. ment of the agreement was primâ facie evidence against the defendant that he had power to grant it, and there was evidence given of declarations made by the defendant to one Woodward, that Hammond's lease was void and good for nothing. It may be true that this evidence, though slight, was such as the jury might have acted upon, if there had been nothing to explain it; but it appears by the recital in the agreement that the lease to Hammond was supposed to be void on the score of Hammond being a bankrupt, and the declarations made to Woodward had reference no doubt to the same supposed bankruptcy; therefore, when it was shewn, as was done in this case, that the commission against Hammond had been superseded, that fact explained the prima facie case set up by the plaintiff, and led strongly to the conclusion that the defendant had not any power to make the lease. The Prideaux (Nov. 3) moved for a rule calling on the verdict on this issue appears to us to be wrong, and plaintiff to shew cause why the writ of allocatur exion that score the defendant would be entitled to have gent, and all subsequent proceedings, should not be set the verdict on the fourth issue entered for him, pursu- aside, with costs, on the ground that the writ ought to ant to leave reserved. It is, therefore, unnecessary to have been tested on the quarto die post of the return of decide whether the verdict on the third issue is or is the exigi facias-that is, on the 14th January, and not on not immaterial. The remaining question is, whether the 11th.-It is laid down in Tidd's Prac. 129, 9th ed., there was evidence to support the count for money had that, "where the plaintiff means to proceed to outand received. The agreement in this case was so far lawry, the capias should be tested on the quarto die acted upon, that the plaintiff was admitted into posses- post of the return of the original, the alias on the sion, and occupied the land for two years, and paid 2501. quarto die post of the return of the capias, and the in part of the 500/.; and it having turned out in the pluries on the quarto die post of the return of the alias; end that no lease could or would be granted to him, and there must be fifteen days at least between the teste he claims to have the 250%. returned to him, as being and the return of each writ." And at p. 132 it is said, paid on a consideration which has failed, that conside-"The exigi facias must be tested on the quarto die ration being, as the plaintiff alleges, the proposed grant post of the return of the pluries capias before, or of the to him of a lease for twenty-one years. The defendant, capias after, judgment." The same practice is referred on the other hand, contended, that the consideration for to in 3 Bl. Com. 308; and this view is also confirmed by paying the sum of 5007. was solely for the granting of the 5th and 6th sections of the Uniformity of Process the lease; that the whole of the matters agreed to be Act, 2 Will. 4, c. 39. [Maule, J.-Suppose a county done on the one side was the consideration for the whole court or a husting were held between the return of of the matters to be done on the other side. It may be the exigi facias and the quartus dies post; if the alloadmitted that such is in general the case, that the catur exigent were tested, as you contend this ought to whole of the stipulations on the one side are the consi have been, that court or husting would be passed over. derations for the whole of the stipulations on the other But in Archbold's Prac. 1138, 8th ed., it is said, side; but such is not necessarily the case, nor is it theThe defendant must be exacted or demanded upon ease, we think, in this agreement, which is of a special these several writs at five consecutive county courts or nature. It is expressly stated that the sum in question hustings; for, if any county court or husting have in is a bonus or premium for the lease; and the granting tervened, the several writs of exigent &c., already exe of the lease is the particular consideration for which the cuted, are without effect, and you must sue out an bonus is to be given. It was understood between the exigi facias and writ of proclamation de novo." And parties that there might be some difficulty or delay in for this he cites Stowel V. Lord Zouch, (1 Plowd, 371).] granting a valid lease, and therefore the parties con- The true principle is, that the writ should be tested on templated the commencement of a tenancy before the the quarto die post, whether in term or not, in order lease was granted; and the yearly rent of 3167. 8s. was that, if the defendant does not appear on the return to commence, in that event, from the time when pos- day, he may have his three days' grace. There is no session was delivered, and the sum of 500l. was then to ground for the distinction drawn in the direction given be paid. But it cannot be supposed to have been the by Tidd, that the allocatur exigent should be tested