COURT OF QUEEN'S BENCH. SITTINGS IN BANC AFTER TRINITY TERM. July 12, 1848. whether such gift over was in words similar to those used in the will before him, or in any other terms. The case of Vawdrey v. Geddes, (1 R. & M. 203), DOE d. GEORGE EARL OF EGREMONT v. Langdon.though sometimes cited as opposed to the observations which had been made, was distinguished by its circumstances from the case under consideration. Mr. Jarman's observations upon that case, in his Treatise on Wills, (vol. 1, p. 744), were worthy of attention, and to the effect, that the consequence, in fact, of holding that a gift of that description was a contingent gift, would be to render the terms of the clause of substitution in accurate throughout. If, however, words of present gift were necessary in order to make the future gift vested, he must observe that in the will then before him such words did occur. The testator, after the direction to pay, distribute, and divide the proceeds of the estate, had gone on to say, "And I hereby give and bequeath the same in manner following." Stopping short of the substitutionary gift, no doubt the gift would be vested. Now, if the substitutionary gift had been simply a gift to B., in case Strachan were dead, at the decease of the widow, it was admitted that the interest of B. would be contingent during the joint lives of Strachan and the widow; but if Strachan had died in the lifetime of the widow, the interest of B. would then have become vested. In like manner, if, instead of supposing the substituted legatee B. to be a single individual, the gift in substitution had been to several legatees as tenants in common, those legatees would, for the same reason, have taken a vested interest on the death of Strachan in the lifetime of the widow. It had, however, been argued, that in a case of a gift to a class the rule was otherwise, and that the Court would read the gift to a class, where the gift was substitutionary, as a contingent gift to such of the class as were living at the time of distribution, namely, the death of the widow. That such a rule of construction, arbitrary in some sense, was not required by the words of the will, could not, he thought, be denied; but still the rule, if it existed, must be followed. The subject had been noticed by Mr. Jarman in his Treatise on Wills, (vol. 2, p. 105), where the construction contended for as to the class was said to be hardly reconcilable with the principles of analogous cases, and was characterised as peculiar to clauses of substitution in favour of children. The only cases there referred to were Eyre v. Marsden (2 Keen, 560) and Crowder v. Stone, (3 Russ. 217); in the former of which the conclusion of the Court was justified by words of reference contained in the gift to the children, to the anterior gift to the parents; and in the latter of which the judgment proceeded upon what the Court considered the true construction of the words of the will. He had also been referred to the cases of Bennett v. Merriman, (6 Beav. 360), Booth v. Vickars, (1 Coll. 6), and M'Gregor v. M'Gregor, (2 Coll. 198). Those, however, were all cases of children substituted for their parents, to which special case Mr. Jarman considered the rule to be confined. He could not think that, in either of those cases, the learned judges by whom they were decided had intended to recognise any such abstract rule as that contended for, as applicable in all cases of wills. On the contrary, their judgment turned entirely on the special wording of the wills which were before them. Upon the whole, he was of opinion that he should be giving an arbitrary construction to the words of the will if he did not hold that the legacies to the testator's cousins vested upon the death of the testator. The decree, therefore, would be, that the portions of the residue given to Strachan and Shanks respectively belonged to their respective next of kin, according to the Statute of Distributions, living at their respective deaths. A., Tenant for Life, under a Power of leasing, created in 1761, granted a Lease to the Defendant in 1826. In 1844, after the Death of A., and before Stat. 8 & 9 Vict. c. 112, G., the Reversioner, brought Ejectment, on the Ground that the Lease was not warranted by the Power. It appeared, that, by a Marriage Settlement, in 1708, a Term of 1000 Years was created in the Property in question for certain Purposes, and then to attend the Inheritance; and that, in an Indenture of the 1st March, 1757, the Indenture creating the Term was recited, the specific Objects of the Trust were declared to be satisfied, and the Executor of the surviving Trustee of the Term was required to assign it, to attend the Inheritance:-Held, first, that the Surrender of the Term was not to be presumed; and that G. could not recover on a Demise in his own Name. Secondly, that Defendant was not estopped from setting up the Term, as he did not thereby deny the general Title of the Lessor of the Plaintiff, but insisted upon the prior legal Title of a Trustee of a Term existing for the Protection of the Estate of the Lessor of the Plaintiff. At the Trial, upon the Non-production of the Deed creating the Term, and the Indenture reciting that Deed, after Notice to produce, the Defendant, for the Purpose of giving secondary Evidence of those Deeds, called upon the Solicitor of a Person who had proposed to Exchange some Property with G., but which Exchange had not been carried into effect, to produce an Abstract of the Deeds; he said that he had not received Instructions from his Client not to produce it, and that he was ready to do so, if the Judge thought that he ought to produce it. The Judge thought that there was no sufficient reason why he should not:-Held, right. Ejectment for a messuage and premises at Williton, in the parish of St. Decuman's, in the county of Somerset. On the trial, before Wightman, J., at the Somersetshire Summer Assizes in 1844, it appeared that George O'Brien, Earl of Egremont, uncle to the lessor of the plaintiff, by indenture of lease, dated the 23rd March, 1826, under a power of leasing contained in the will of Charles Earl of Egremont, his father, dated the 31st July, 1761, for the considerations therein mentioned, demised the premises in question to the defendant for the term of ninety-nine years, determinable on three lives, at the yearly rent of 3s. 6d., &c. The three lives were still continuing. The action was brought on the ground that the power of leasing was not well executed, and the particulars of the objections given under a judge's order were-That the ancient and accustomed rent was not reserved; that the premises were not usually leased in the above lease; and that the lease omitted the covenant to perform suit and service at the lord's court, and other usual and reasonable covenants (specified in the particulars of objections). At the close of the plaintiff's case, the defendant's counsel, in pursuance of à notice to produce given to the lessor of the plaintiff, called for a deed dated June, 1708, being the marriagesettlement of Sir William Wyndham, father of Charles Earl of Egremont, whereby a term of 1000 years was created for raising a jointure for Lady Wyndham, and 12,0007. for younger children, by sale or mortgage of certain manors and lands, including the premises in question, and to attend the inheritance; and also a deed dated the 1st March, 1757, in which the existence of the term of 1000 years was recognised. It appeared that the deeds were in the possession of a mortgagee; and the clerk of his solicitor, who attended with them in court, in obedience to a subpoena duces tecum, refused to produce them, in pursuance of instructions received from the mortgagee and his principal. Thereupon the defendant called Mr. Bower, the solicitor of a party who had contracted with Lord Egremont for an exchange of lands; who stated that during the negotiation, an abstract of the Earl of Egremont's title had been delivered to him in the usual way to peruse and approve, and it remained in his possession, the contract not having been yet completed. This abstract was tendered as secondary evidence of the contents of the deeds in question. Mr. Bower said that he had received no instructions from his client as to the production of the abstract, and that he would do as the judge directed him. He said his client was equitable owner, and claimed to be entitled to the benefit of the contract of exchange; and ultimately he refused to produce the abstract unless the judge directed him to do so. The counsel for the lessor of the plaintiff objected, that the abstract constituted the title-deeds of the witness's client, and, therefore, ought not to be produced. The learned judge thought that Mr. Bower ought to produce it, and it was accordingly given in evidence. It appeared from the abstract that the marriage-settlement created a term of 1000 years, which was vested in trustees, in trust, amongst other things, to raise 12,000l. portions for younger children. There were two younger children of this marriage, Percy O'Brien Earl of Thomond and Elizabeth Wyndham. And Sir William Wyndham, by his will, dated the 29th March, 1840, appointed 10,000l. to his daughter, and 20007. to his son Percy O'Brien. The deed of the 1st March, 1757, was made between George Grenville, Esq., and Elizabeth his wife, daughter of Sir William Wyndham, Bart., (then deceased), of the first part, Percy Wyndham O'Brien Earl of Thomond, her brother, of the second part, and Charles Earl of Egremont of the third part, being a release to the trustees of Mr. and Mrs. Grenville's marriage-settlement of 10,000l., part of the said 12,000l. appointed to Mrs. Grenville by her father, Sir William Wyndham, under a power of appointment. This deed contained a direction that the executor or administrator of the surviving trustee of the term should assign the same as the said Charles Earl of Egremont should appoint. Mr. Bower proved that he examined the deeds in question with the abstract in the usual way; and also, that it had been agreed, on the treaty with his client, that the term of 1000 years should be assigned to a trustee for the purchaser, and to attend the inheritance. It was further objected that the defendant, who had been let into possession by George O'Brien, Earl of Egremont, could not set up the term against the lessor of the plaintiff, who claimed under the same settlement. The learned judge admitted the evidence, and directed a verdict for the lessor of the plaintiff, reserving leave to the defendant to move to enter a nonsuit or a verdict for the defendant. In the following Michaelmas Term, (Nov. 6), Kinglake, Serjt., obtained a rule nisi accordingly, (citing Doe d. The Earl of Berkeley v. The Archbishop of York, 6 East, 86, 95, 96), or for a new trial, on the ground that the lease of 1826 was invalid. The judgment of the Court renders it unnecessary to report the arguments on the latter point. And on the following day, (Nov. 7), Crowder obtained a rule nisi for a new trial, on the ground of the improper admission of secondary evidence of the trust term. In Michaelmas Term*, 1845, the rules were argued by Crowder, Montague Smith, and Phinn, for the lessor of the plaintiff.-First, the abstract was improperly received in evidence. It was the duty of the solicitor, who had received no instructions from his client, to refuse to pro No. 20, before Lord Denman, C. J., Williams, Coleridge, and Wightman, JJ. duce it. [Wightman, J.-His client had no title to the property to which the abstract related. I thought that, as his client did not object, he ought to produce it.] Counsel have a right to be heard upon such an objection. (Rex v. Woodley, 1 M. & Rob. 390, 391). [Lord Denman, C. J.-There I allowed the right upon the authority of a case in which it was said Holroyd, J., had allowed it.] If a deed with an insufficient stamp is offered in evidence, the counsel for the opposite party have a right to object to its being given in evidence, though an unstamped instrument is not invalid in itself.] [They cited Marston v. Downes, (1 Adol. & Ell. 31); Davies v. Waters, (9 Mee. & W. 608); Doe d. The Earl of Egremont v. Date, (3 Q. B. Rep. 609). [Lord Denman, C. J.-Counsel may be heard upon the point_if_the party to the suit is interested in objecting to it.] The lessor of the plaintiff had such an interest in this matter as entitles him to call upon the Court to review the decision of the judge at Nisi Prius, and if the evidence was wrongly admitted, it is ground for a new trial or a nonsuit. (Doe d. Peter v. Watkins, (3 Bing. N. C. 421; 4 Scott, 155). A party has a right to prepare for the trial, relying on the artificial rules which have been framed for the purposes of administering justice, and presuming that the judge will decide accordingly. The plaintiff may have had a surrender of the term, which it would have been expensive to prove, and he may have abstained from preparing the proof of it, because he relied on a rule which would prevent the term from being given in evidence against him; or the party who possessed the deed which would prove the existence of the term may have told him that he would not produce it. Secondly, the term does not destroy the right of action. The defendant was estopped from setting up the term against the remainder-man, by whom he was let into possession. Charles Earl of Egremont, in his will, assumed to deal with all the property mentioned in it as owner in fee; carving out of it a variety of estates, and making George O'Brien, Earl of Egremont, tenant for life. The lease made by him does not refer to the leasing power; but it was not void in its inception, and was good during the life of the tenant for life. The plaintiff cannot contend that the lease was not made according to the leasing power, or that the Earl of Egremont, in 1761, had no right to grant in fee, because he is estopped from denying the title of the party who let him into possession. (Barwick d. The Mayor of Richmond v. Thompson, 7 T. R. 488; Doe d. Colemere v. Whitroe, 1 Dowl. & Ry. N. P. C. 1; S. C., 2 Harr. Dig. "Landlord and Tenant," 3695; Blake v. Foster, 8 T. R. 487). The lessor of the plaintiff, George Earl of Egremont, would have been estopped, by his acceptance of the life estate under the will of Charles Earl of Egremont, from denying the title of the testator, and therefore the defendant, his tenant, is estopped. (Com. Dig. "Estoppel," (D.), referring to 1 Roll. 868, 1. 47; S. P., 10 Vin. Abr. "Estoppel," (L.), with a dubitatur). The lessee of tenant for life is entitled to emblements; (Co. Litt. 55.a.); therefore this estoppel is mutual. (Co. Litt. 352. a. b. ; 2 Smith's Lead. Cas. 458). The remainder-man is not to be put to proof of his title by a tenant let into possession by tenant for life. The setting up the term is a denial of the legal estate of Charles Earl of Egremont, the testator. (Walton v. Waterhouse, 2 Wms. Saund. 418, n. 1). As soon as the tenant for life succeeded, it was the duty of the tenant to quit without any demand of possession. Butt and Kinglake, Serjt., contra.-[Lord Denman, C. J.-We do not feel ourselves pressed with the first objection. Two things are necessary to make the objection available: first, the objection must be properly taken. Here the witness put himself in the hands of the Court for the purpose of withholding or producing the document. This is not the case of an adverse witness, and, therefore, the point does not arise according to the view which I took in Doe d. Peter v. Watkins, (3 Bing. N. C. 422; 4 Scott, 155), and which was taken by the Court of Common Pleas on the argument for a nonsuit. If the witness had objected to produce the document, counsel for the party interested in its non-production might have been heard, but it would be on the point, whether, upon the facts disclosed in evidence, the witness was bound to produce or to withhold it. But the point does not arise here, because the objection was not insisted on; it ought to be most distinctly taken. The privilege on which it is founded is of a strict nature. Why is a party to be deprived of the benefit of a fact which a witness knows, because he supposes that his client may be a loser by its disclosure? I do not say it was necessary to serve the client with a subpoena duces tecum; I think the presence of his attorney in court was sufficient for the purpose of this objection.] Secondly, there was no estoppel. All estoppels must be mutual. (Brereton v. Evans, Cro. El. 700; Brudnell v. Roberts, 2 Wils. 143). "An estoppel determines by cesser of the act, deed, &c., which made the estoppel." (Com. Dig. "Estoppel," (F.), citing Co. Litt. 47. b.) Here the defendant seeks to avoid the lease, because there is no estoppel. Again: "Acceptance of rent &c. by him who then had no title shall not be an estoppel." (Com. Dig. "Estoppel," (E. 7), citing Co. Litt. 352. b.) [Wightman, J.-I do not understand the case of Doe d. Colemere v. Whitroe, (1 Dowl. & Ry. N. P. C. 1).] Cur. adv. vult. Lord DENMAN, C. J., now delivered the judgment of the Court. This was an ejectment tried before my Brother Wightman at the Summer Assizes, 1844, when a verdict was found for the lessor of the plaintiff, subject to the opinion of the Court upon several points that were reserved. It was brought to try the validity of certain leases made by the late Earl of Egremont, under a power contained in the will of Charles Earl of Egremont, dated in July, 1761. The defendant held the premises in question under a lease for lives, made by the late earl, under the power, on the 23rd March, 1826. The plaintiff contended that the lease under which the defendant held was not in accordance with or warranted by the power. But an objection was taken, which, if well founded, was fatal to the plaintiff's right to recover, and rendered the consideration of the questions as to the validity of the lease unnecessary. The objection was, that there was a term outstanding in trustees for 1000 years, created in 1708 for certain purposes, and then to attend the inheritance; and it appeared, that, by an indenture of the 1st March, 1757, the indenture creating the term was recited, the specific objects of the trust were declared to be satisfied, and the executor of the surviving trustee of the term was required to assign it, to attend the inheritance. The deeds themselves were in court, but in the hands of the solicitor for mortgagees, who declined to produce them, as being part of the mortgage title. Secondary evidence, how ever, was given of the deeds, by means of an abstract compared with the originals, and produced under circumstances which we think warranted the reception of such evidence. The abstract was produced by the solicitor for a gentleman who had proposed to exchange some property with Lord Egremont, but which exchange had not been carried into effect, and who had, therefore, no title which could be affected by the production of it; nor had the solicitor any instructions from any one not to produce it. He did not volunteer the production, but said he was ready to do so if the judge thought that he ought to produce it. The judge thought there was no sufficient reason why he should not, and we are of the same opinion. The question, then, is, there being no demise by the trustee of the term, whether that term, created in 1708, and existing in 1757, could be now set up by the de-I fendant to defeat the claim of the lessor of the plaintiff. There was no evidence in the case to warrant the presumption that it was either surrendered or merged in the inheritance. On the contrary, the last document respecting it shewed that it was kept alive in order to attend the inheritance. It was formerly considered that old terms, assigned to attend the inheritance, might, when set up to defeat the title of the person for the protection of whose estate they were assigned, be presumed to have been surrendered. (Doe d. Burdett v. Wrighte, 2 B. & A. 710, in which all the previous cases are cited and considered). But it has subsequently been held, and we think rightly, that the surrender of a term to attend the inheritance is not to be presumed from mere lapse of time, nor unless there be express evidence to warrant such presumption. (Doe d. Blacknell v. Plowman, 2 B. & Adol. 573). Several cases are cited in Sugden on Vendors and Purchasers, in which Lord Eldon expressed a strong opinion, that to presume the surrender of a term to attend the inheritance would, in most cases, defeat the object intended by the assignment of such terms. It may, therefore, be taken, that, after the decision of Doe d. Blacknell v. Plowman, down to the passing of the 8 & 9 Vict. c. 112, the surrender of a term to attend the inheritance was not to be presumed from mere lapse of time, and that the omission of a demise in the declaration by the person entitled to the term would defeat an ejectment by the beneficial owner. The statute of Victoria, taking effect only from the 31st December, 1845, does not affect the present case; but it was said that the defendant himself held under the same original title as that under which the plaintiff claimed; and the cases of Doe d. Colemere v. Whitroe (1 Dowl. & Ry. N. P. C. 1) and Barwick d. The Mayor of Richmond v. Thompson (7 T. R. 488) were cited. In the first of these cases it was held, that the interest of a tenant for life and reversioner were the same, and that a lessee of tenant for life could not shew adverse title in another at the time of lease granted, but he might shew prior title. In Barwick d. The Mayor of Richmond v. Thompson it was held, that the tenant could not dispute the title of the person under whom he held as tenant. Neither of these cases are applicable to the present, for the defendant does not deny the general title of the lessor of the plaintiff, but, in an adverse action to defeat his lease, insists upon the prior legal title of a trustee of a term to attend the inheritance for the protection of the estate of the lessor of the plaintiff, under whom, as the lessor of the plaintiff contends, the defendant does not hold. There is no rule of law to prevent the defendant setting up the outstanding term in such a case as this; the lessor of the plaintiff himself denying the right of the defendant's lessor to grant the lease. Upon the whole, therefore, we think that the omission of a demise by the owner of the term is a fatal defect in the plaintiff's case, and entitles the defendant to a nonsuit, making it unnecessary for us to consider the other questions in the case.-Rule absolute to enter a nonsuit. MICHAELMAS TERM. COLLINS v. KINGSBURY.-Nov. 9. A Declaration contained a Count for double Value, and a Count for Use and Occupation. The Particulars of Demand stated, that Plaintiff sought to recover, under the second Count, 75l., being the single Rent of the Premises mentioned in the first Count. Defendant paid 751. into Court upon the second Count, which Plaintiff took out of Court. The Holding Over in the first Count and the Occupation in the second, were during the same Period:-Held, that Plaintiff might still recover upon the first Count. Debt. The first count was for the double value of took the same view which I did at the trial. The only difference is, that in that case it was said, that it was a question for the jury whether there was an intention to waive the right to double value. In this case, the counsel for the defendant placed the defence entirely upon the point of law which he raised, and did not wish to have any question left to the jury; and he was quite right in taking that course, because it would have been absurd to ask the jury whether the plaintiff had waived that which, by the continued prosecution of his suit, he was seeking to recover. And we are of opinion, that nothing appears in the particulars of demand which divests the plaintiff of the right to recover double value. premises held over, after a notice to quit by the land- served to the defendant to move to enter a nonsuit. In Humfrey moved accordingly, or for a new trial, or to reduce the damages.-The plaintiff cannot maintain a count for double value and a count for use and occupation, if he accepts the money paid into court upon the latter. [Coleridge, J.-How can that, which is a matter occurring after action brought, be an answer to the first count? At most, it is the case only of two inconsistent counts. Wightman, J.-In Ryal v. Rich, (10 East, 48), Lord Ellenborough said, (p. 52), "If the tender of the single rent had been accepted before the action brought, it would have been a question for the jury to have determined whether it were not a waiver of the landlord's claim to the double value: if it were accepted after action brought, it became a question with what intent it was received, whether in part satisfaction of the double value or as a waiver of it. At any rate, it is no estoppel in law; but an estoppel, if at all, arising out of the acts and intents of the parties, which should have gone to the jury."] Here the particulars of the plaintiff's demand are conclusive that he accepted the money paid into court on the second count as rent. [Coleridge, J.—I do not see how it can be ground for a nonsuit, though it may be ground for reducing the damages. Lord Denman, C. J.-The plaintiff had a vested right to the double value when he commenced his action; how can payment of part be an answer?] The plaintiff has accepted 757. as rent for an occupation of the premises by the defendant rightfully. [Lord Denman, C. J.-That is negatived by his proceeding with the action; and, in my opinion, a person may recover in an action for use and occupation, though the premises were held wrongfully.] Suppose the plaintiff had brought two actions: ejectment to recover possession, laying the demise on the 29th September, 1840; and an action for use and occupation, for rent accruing due at the end of the next quarter; would not that shew that the defendant was not a trespasser during that quarter? [Wightman, J.-The question is, whether the plaintiff took the 751. out of court waiving the claim for double value, or only pro tanto?] In Ryal v. Rick, (19 East, 48), the money was brought into court upon a plea of tender of certain sums of money as rent for the premises mentioned in the second count. It is a question for the Court, and upon which the judge ought to direct the jury, in point of law. Cur. adv. vult. Lord DENMAN, C. J., now delivered the judgment of the Court.-In this case, we think there should be no rule. The case of Ryal v. Rich (10 East, 48) is almost the same in its circumstances, and Lord Ellenborough *Nov. 6, before Lord Denman, C. J., Coleridge, Wightman, and Erle, JJ. SITTINGS IN BANC AFTER MICH. TERM. REG. v. FRANCIS COOPER.-Dec. 4. An Indictment is not maintainable against an Overseer for removing a Pauper under an Order made in pursuance of Sect. 79 of Stat. 4 & 5 Will. 4, c. 76, after it has been confirmed, on Appeal, by the Quarter Sessions, subject to a Case for the Opinion of this Court, and before the final Determination of it by this Court; it not being stated that the Removal was effected by Fraud, Force, or Menace. Indictment found at the Spring Quarter Sessions of the West Riding of Yorkshire in 1847. The first count stated, that, on &c., in 1846, Martha Lye, the wife of Peter Lye, George, aged fourteen years, Edward, aged six years, and Fanny, aged seven months or thereabouts, their three children, had gone to inhabit, and were then inhabiting, in the township of Manchester, in the borough of Manchester, in the county of Lancaster; and that they became and were, on &c., actually chargeable to the township of Manchester, being a township liable to maintain its own poor; that the overseers of the poor of the said township made complaint to two justices of the peace in and for the said borough of Manchester, that they had come to inhabit, and were then inhabiting, the said township, not having gained a legal settlement there, nor having produced any certificate acknowledging them to be settled elsewhere, and that they had become and then were chargeable to the said township of Manchester; and that the said overseers made application for an order of removal of the said paupers to the place of their last legal settlement; that the justices made their order accordingly, and thereby adjudged the place of the last legal settlement of the said Martha Lye and her children to be in the parish, township, or place of Sheffield, in the West Riding of the county of York, and thereby required the said overseers of Manchester to send by post, to the overseers of Sheffield, a notice in writing of the said paupers being then chargeable, together with a copy of the order and a copy of the examination on which the order was made; and if no notice of appeal against the said order should be given by the churchwardens and overseers of Sheffield within twenty-one days after the time of sending the said notice, then the said justices did, in and by the said order in writing, further order, that forthwith, after the expiration of twenty-one days after the sending of the said notice, &c., or sooner, if the churchwardens and overseers of Sheffield should, by writing under their hands, agree to submit to the said order, the said overseers of Manchester should remove the said paupers to Sheffield, and deliver them, together with the order, unto the churchwardens and overseers of Sheffield; but, if notice of appeal should be given within the twenty-one days, they further ordered, that forthwith after the time of prosecuting such appeal should have expired, if the same should not be duly prosecuted, or, in case it should be duly prosecuted, then forthwith after the final determination of the same, if the said order shall be confirmed, they should remove the said Martha Lye and her children to Sheffield; that a notice in writing of the paupers being chargeable was duly signed by the defendant, then one of the overseers of the poor of the said township of Manchester, and by divers other persons also then overseers of the poor of the said township, and sent, with a copy of the order and examinations, to the overseers of Sheffield, then being a township liable to maintain its own poor; that the overseers of Sheffield, on the 10th December, 1846, commenced an appeal against the said order; that the appeal was duly prosecuted, and was heard at the January Quarter Sessions for the borough of Manchester in 1847, at which it was ordered, that the said order should be confirmed, subject to the opinion of the Court of Queen's Bench on a case," which case was and is as follows: that is to say," &c. [The case was set forth at length.] That the overseers of the poor of Sheffield had never agreed, by writing under their hands or otherwise, to submit to the said order of two justices; that, after the making of the said order of the said Court of quarter sessions, and before the final determination of the said appeal, the defendant still remained and was an overseer of the poor of Manchester; that the paupers had not been removed from the township of Manchester, but, on the contrary thereof, inhabited by personal residence in the said township of Manchester, to wit, until the 12th January, 1847. That, on the day and year last aforesaid, the defendant had notice of all and singular the premises; and the defendant, being such overseer of the township of Manchester, and having such notice as last aforesaid, and being a person of a wicked and malicious disposition, and having no regard to the duty of his said office as such overseer, but intending to disobey, and actually disobeying, the said order of the said two justices, and intending and maliciously devising to injure the said Martha Lye and her children, and also intending and maliciously devising to aggrieve the inhabitants of the township of Sheffield, and to cast upon the inhabitants of the said township the charge of maintaining the said Martha Lye and her children, did, on the said 12th January, A.D. 1847, with force and arms, wickedly and maliciously, and without any lawful warrant or authority, remove and convey the said Martha Lye and her children from and out of the said township of Manchester unto and into the said township of Sheffield, and did then leave and deliver the said Martha Lye and her children to one of the overseers of the poor of the township of Sheffield, then being a township maintaining its own poor, to the great damage of the said Martha Lye and her children, in manifest violation of the liberties of the subjects of our lady the Queen, in breach and disregard of the duty of the defendant's office as such overseer of the poor of the township of Manchester, to the evil example &c., in contempt of the laws &c., to the great damage of the inhabitants of the said township of Sheffield, and against the peace &c. The second count was the same as the first, except that it did not set out the case, but referred to it as recorded by the Court of quarter sessions. The third count was the same as the second, except that it charged that the defendant, with force and arms, wickedly and maliciously, and without any lawful warrant or authority, and under pretence of being authorised on behalf of the then overseers of the township of Manchester to remove the said Martha Lye and her children under the said order so made by the said two justices, and under colour of the said last-mentioned order and of the said last-mentioned appeal having been finally determined, removed and conveyed, and caused and procured to be removed and conveyed, the said Martha Lye and her children from and out of the said township of Manchester unto and into the said township of Sheffield, &c., in breach and disregard of the said order of two justices, and of the said last-mentioned order of the sai Court of quarter sessions, to the evil example &c., i contempt of the laws &c., and against the peace & General demurrer and joinder thereon. The demurre was argued by Hall, for the defendant.-The removal of a paupe by the overseers pending an appeal, if done withou force, fraud, or conspiracy, is not an indictable offence though the removal may have been premature. Th doing of a thing prohibited by statute is indictable where the intention of the statute is to forbid an act and make it criminal on public grounds-not where it merely regulates the exercise of a right between party and party, or one body of persons and another. Many statutes prohibit the bringing of actions in particular cases without notice, or the bringing of actions after the lapse of a certain time; but it is not an indictable offence to do so. Further, the indictment is defective, if it is founded on the proviso in the 79th section of stat. 4 & 5 Will. 4, c. 76, that, if notice of appeal against an order of removal shall be received within the twenty-one days, it shall not be lawful to remove the pauper until after the time for prosecuting the appeal shall have expired, or until after the final determination of the appeal,-it is bad for not concluding against the form of the statute, and for not stating that notice of appeal was given. If the indictment is grounded on disobedience to the order of the removing justices, it is bad for not alleging that notice of appeal was given within twenty-one days, in pursuance of the order. A delay in the execution of the order afterwards is a mere indulgence: by sect. 79, service of notice and of grounds of appeal after twenty-one days, though good, is no stay of proceedings. The indictment shews an actual prosecution and hearing of the appeal; but none of the counts contain an averment that the parish officers of Manchester were parties to that proceeding: consistently with what is alleged, the whole may have been ex parte, The words "which case was and is as follows," in the first count, do not amount to a finding by the grand jury, that anything stated in the case was a fact, or that the case was signed as it purports to be. (Rex v. Gilkes, 8 B. & C. 439; 2 M. & R.454). Again, though the sessions are said to have confirmed the order, subject to a case, it does not appear by any proper averment that the case was ever argued, or even drawn up, except for the purpose of this indictment. The indictment ought to have shewn what was done upon the order of sessions, so as to make it appear that the appeal was duly prosecuted, and not finally determined. If it is an offence independently of the order, the first count is double or ambiguous. (Rex v. Marshall, 1 Moo. C. C. 158). The indictment should have shewn that the legal settlement of the paupers was in Manchester, and negatived that it was in Sheffield; (Rex v. Edwards, 8 Mod. 320; Reg. v. Langley, 1 Ld. Raym. 790); and it should also have shewn that Sheffield would be burdened. (Rex v. Warne, 1 Str. 644). The Court cannot allow the expense incurred by maintaining the pauper between the time of giving judgment at the sessions and that in the Queen's Bench, (2 Nol. 623), except upon special application, under certain circumstances, which is a strong reason for removing the paupers. The appellant parish may be reimbursed the expense of maintaining the paupers, under sect. 84 of stat. 4 & 5 Will. 4, c. 76. The mere allegation of malice is not sufficient; and the facts stated negative malice. Lastly, the indictment is bad for not mentioning the names of the overseers of Sheffield. (Reg. v. Parker, 3 Q. B. Rep. 292; 6 Jur. 822). Pashley, contra.-Where, upon an appeal against an order of removal, the Court of quarter sessions states a special case, which has not been abandoned, the appeal is not determined, and no lawful warrant exists; and, therefore, the paupers were removed wrongfully and |