at the sessions, and get the order quashed. The respondents further asserted, that they consented to the order being quashed only on the understanding that it was to be quashed for want of form. The reception of this evidence was objected to by the appellants, and the Sessions held it to be inadmissible, as there was no entry on their record, that the former order was quashed for want of form. The last order was therefore quashed, subject, however, to a case which was drawn up in such a form that the opinion of the Court would not have been final. A rule for a mandamus to enter continuances and hear the appeal having been obtained,

Hayes shewed cause, but, after stating the facts, referring to The Queen v. the Justices of Kesteven (1), he was stopped by Coleridge, J., who called upon

Townsend to support the rule.—The respondents, in this instance, have pursued the course suggested by this Court, in a variety of cases, of abandoning the former order, when it was discovered to be founded on mere parol testimony, and procuring a fresh one.

Then the Sessions were wrong in refusing to admit evidence to shew that the former order was quashed merely for defect of form. According to The King v. Wheelock (2), they were bound to receive that evidence, and, having refused to hear it, this Court will compel them to do so by mandamus. The Queen v. the Justices of Lancashire (3), and The Queen v. Perranzabuloe (4), confirm the ruling in The King v. Wheelock, which is directly in point. Had they heard the evidence, and decided on its effect, the case would have been different; and The Queen v. the Justices of Kesteven differs from the present case in that respect, inasmuch as there the Court actually heard the appeal. Under those circumstances, this Court would not interfere, since they would be, in effect, deciding on the effect of evidence. That distinction is pointed out in the judgment. The Sessions have not here stated that the explanation was sufficient or insufficient, but simply have refused to hear the case, which they had no right to do.

[COLERIDGE, J. to Hayes.-Do you mean to contend that the Sessions were right in refusing to hear evidence to shew the circumstances under which the former order was quashed?]

Hayes. The evidence tendered was inadmissible, and the Sessions were right. The consent to quash was in writing, and that being the agreement between the parties, it could not be varied by parol evidence, which would have been the case if the term "not on the merits" could be imported. The record, too, of Sessions could not be explained; and no case has gone so far as to say that such evidence could affect it. At all events, the Sessions were the proper judges as to that-The Queen v. Churchknowle (5).

[COLERIDGE, J.-This is not like The Queen v. the Inhabitants of Charlbury and Walcott (6), in which the Sessions admitted the evidence, but held the defect pointed out to be merits; for they have shut themselves out from hearing anything. You are assuming a state of facts; but the Sessions having heard nothing, know nothing respecting them. Shew me that the Sessions heard the case, and, though wrong in their decision, I cannot interfere, as this is not a court of appeal.]

COLERIDGE, J.-I wish very much that this case had not been argued before me sitting alone, as it comes very near to the dividing line. I shall, however, try to decide it upon broad principles; and if I am wrong in this particular case, I shall do no great harm. The question is, whether the

Court of Quarter Sessions have heard the case. If they have, I cannot interfere; but if they have refused to hear it, then this Court will put them in motion. Now, the

(5) 7 Ad. & El. 471; s. c. 7 Law J. Rep. (N.S.) M.C. 4.

(6) Ante, 19.

(7) 4 B. & Ald. 86.

(8) 5 B. & Ad. 597.

facts are these:-' -The former order having been quashed, the respondents procured a fresh one, and upon appeal against that, the former order is put in their way. That order was quashed generally; and it was contended that this entry by the Sessions was conclusive, and the Justices were of that opinion. In this respect, I think that they were wrong, and that it was open to the other side to shew the former order to have been quashed not on the merits, and that the Sessions were bound to receive evidence to shew the precise ground. It is, however, said, on the other side, that the facts would not prove that it was quashed for want of form, and that the agreement to quash, being general, and in writing, could not be explained. We must, however, look at the substance, and not at the form of the matter. What passed at the prior sessions was behind the back of the respondents, against whom the order was made. The motion and consent were handed in as a matter of course, and the Sessions knew nothing of it, and exercised no discretion upon the subject. Looking at the substance therefore, not at the mere form, it is evident on what footing the former order was quashed. These facts, however, the Sessions have refused to hear, in order to explain the general entry; and not having done so, I think they must be compelled to hear them. When they have indeed heard both sides, it may be that they may say that the former order was not quashed for mere informality, and then we cannot disturb their decision. The fault lay in their refusing to hear the evidence at all; for had they done that, we could not have

interfered, and then the case would have resembled The Queen v. the Inhabitants of Charlbury and Walcott. Whatever may be the result, it appears to me that the Sessions ought to be compelled to hear the evidence; and, therefore, this rule must be made absolute.

1844. June 10.

Rule absolute.

THE QUEEN v. THE MAYOR OF
THE BOROUGH OF NEW WIND-
SOR.

Corporation Borough Rate - Special Overseer under 1 Vict. c. 81. s. 3.-Refusal to pay Illegal Rate-Mandamus.

The council of the borough of W, pursuant to a report of the Finance Committee, voted and ordered a rate of 6d. in the pound on the rateable property in the borough, in the following proportions :-Parish M, 519l. 3s.; parish N, 1191. 2s.; parish O, 317. 11s. 6d. ; and special overseers, in pursuance of stat. 1 Vict. c. 81, were appointed under the corporate seal for making and collecting the rate of 5191. 3s. in the parish M. These special overseers made a rate of 7d. in the pound, calculated to produce 618l. 4s. 74d. :—Held, that such rate was illegal, and that a parishioner who had been omitted from the burgess list, by reason of his refusal to pay it, was entitled to a mandamus to the mayor to insert his name thereon under the stat. 1 Vict. c. 78. s. 24.

[For the report of the above case, see 13 Law J. Rep. (N.S.) Q.B. p. 337.]

-

Acknowledgments. Relief by placing pauper in
establishment for maintenance of poor situate
out of the parish, not relief out of the parish, or
evidence of admission that pauper was settled in
relieving parish, 89

Amendment-of venue in margin and body of indict-
ment, 40

Appeal-As to propriety of Sessions quashing order
of removal "not upon the merits," where respon-
dents give notice of abandoning order of removal
on the ground that examinations are defective,
offering to pay costs, &c. 5

Quashing order of removal not upon the
merits, 19

Where Sessions right in deciding that their
first judgment was conclusive without considering
whether it was right or wrong, where, on appeal,
they quashed order of removal, generally, without
going into the evidence, on the ground that exa-
minations, accompanying order, were defective
and insufficient, by reason of an omission, which
they judged material, and which defect and omis-
sion had been specifically pointed out in the state-
ment of grounds of appeal; and another order of
removal of pauper, from respondent to appellant
parish, was then made, and that order was
appealed against, on the ground that the former
judgment of the Sessions was conclusive as to the
settlement, and at trial of second appeal, respon-
dents tendered evidence to shew that first order
was quashed on a preliminary objection to the suf-
ficiency of the examination, and that the merits
were not gone into, and Sessions held, that former
judgment was conclusive, and refused to hear the
evidence, and quashed the order, 19

Sessions not bound to quash order absolutely,
but may quash "not upon the merits;" and
Queen's Bench will not entertain question,
whether objection went to merits of settlement,
though that question is raised on case, Sessions
having found in terms that they quashed not on
the merits, 22

Appeal

Where parish is incorporated under 22
Geo. 3. c. 28, notice of must be signed by guardian,
and he must describe himself therein as such, and
not as an overseer, 39

No objection to notice of, against order of
removal, that it does not mention names of Jus-
tices who made the order, 41

Order of Sessions quashing order of removal,
on ground that examinations do not disclose any
evidence of chargeability, not conclusive of settle-
ment of pauper; and at subsequent sessions ground
on which former order was quashed may be shewn.
Question of chargeability a question on the merits;
i. e. on the merits as they exist at the time of
removal, and does not affect the goodness or bad-
ness of settlement, 47

Insufficient statement of renting tenement,
consisting of keeping of a cow, for not stating it
was to be pasture-fed, 49

Where notice and statement of grounds of,
purport to be signed by one churchwarden and
two overseers, one of those who sign as over-
seers being the same person who has signed as
churchwarden, respondents cannot set up as an
objection to hearing of appeal, the irregularity in
the appointment of officers of appellant parish,
that parish being bound by the notice, 54

Examination sets out a settlement by hiring
and service, and also several instances of relief
given by appellant parish to pauper and his
family, while residing in respondent parish.
Ground of appeal that pauper never acquired set-
tlement in said parish of E. (appellant parish)
either by hiring and service with said J. S. (the
master), or by any other means. Upon hearing,
respondents give no evidence of actual settlement,
but prove instances of relief set out in examina-
tion; appellants at liberty to shew that they had
given the relief under a mistake, 75

Question, whether statement of grounds of
appeal contains sufficient particularity for Ses-
sions to determine; and where they have decided

it to be insufficient to let appellants into their case, Q.B. will not grant mandamus to Quarter Sessions to enter continuances and hear appeal; overruling The Queen v. the Justices of Carnarvonshire, 2 Q.B. Rep. 325; and The Queen v. the Justices of the West Riding, ibid. 331. Course to be taken by Justices where question as to grounds of appeal being sufficiently particular is doubtful, 78

Appeal-Signature of grounds of, by W. R, T. G. and, for W. H., W. P, "churchwardens and overseers" of parish A. (which formed part of a union,) and J. E, "guardian," insufficient; it not appearing that W. H. had given W. P. H. authority to sign for him: notice not helped by signature of guardian; guardian under Poor Law Amendment Act not having any authority for such a purpose, 86

Right of appellants to have appeal entered after notice of supersedeas and tender of two guineas costs, notwithstanding rule of sessions, that 30s. only shall be allowed on appeals against order of removal, 114

Sessions bound to hear evidence from respondents to shew that prior order had been quashed by consent, on account of a defect in form, where order of removal having been quashed generally by Sessions, and fresh order obtained, upon appeal against latter order, appellants produced record of the Sessions quashing prior order between them and respondents, 163

See Costs.

Apprenticeship-Examination of pauper, stating that he was put out an apprentice by covenant indenture, describes notice of binding with sufficient particularity, as distinguished from binding by parish, 49

Bail-Refusal of application to admit to bail where true bill for murder found against prisoner, but trial postponed in consequence of absence of material witnesses for prosecution. Semble-Court will in no case admit to bail where true bill for capital offence found by grand jury, 113 Baron and Feme-Invalidity of order of removal, separating wife from husband, 107 Bastard-Churchwardens and overseers parties liable to pay costs, and a mandamus to compel Quarter Sessions to make order for costs, where churchwardens and overseers of the parish of O, in city of Exeter, applied at Sessions for order of filiation upon putative father of bastard child chargeable to the parish of O, and application was resisted in limine, on ground, that by local act of parliament, certain persons were incorporated for the management of the poor of the city of E, and that application should have been made by them, and not by churchwardens and overseers; and Quarter Sessions, being of that opinion, made no order of filiation, but refused to order that costs of party should be paid by churchwardens and overseers of O. Application and its dismissal, a sufficient hearing of application within 5 & 6 Will. 4. c. 76. s. 73, 7

Dismissal of application for order of filiation, by reason of notice not being proved to be signed by a majority of guardians, not a hearing so as to

entitle putative father to costs, under proviso in sect. 73. of 4 & 5 Will. 4. c. 76, 111 Bastard-Person charged as putative father not entitled under 2 & 3 Vict. c. 84, to declare to the Justices in petty sessions, under section 3, that he is desirous that the charge should be heard and determined at the Quarter Sessions, after some witnesses have been examined, and the case has been partly heard, by his consent and in his presence. Where order to pay an amount bad, as being made for a time exceeding six calendar months next preceding the hearing of application, contrary to section 73. of Poor Law Act. Whether affidavits tendered to shew that the order for payment was bad, as there were no churchwardens for the township of R, the order reciting the application to have been made by the churchwardens and overseers of the township, can be received, as they do not go to oust the Magistrates of jurisdiction. But, held-per Patteson, J., and Williams, J., (Lord Denman, C.J. dubitante,) that order was sufficient, even though there were no churchwardens for the township, 115

Objection to jurisdiction of Justices, waived, where putative father, being served with notice of application at petty sessions for order to reimburse guardians for maintenance, attended at sessions, and procured an adjournment of the case; and afterwards, at subsequent petty sessions, applied to have case heard at Quarter Sessions, and tendered sureties, but, Justices having decided on proceeding, cross-examined witnesses, and made his defence, 157

Bridge-Sufficiency of indictment charging prescriptive liability of township to repair bridge, where township have widened part of bridge. Semble, per Lord Denman, C.J. and Patteson, J., widening of bridge only in the nature of repair, and does not so far alter character of bridge as to enable township to throw repair of new part upon the county, 9

Power of Judge to certify for costs in case of indictment for non-repair of county bridge, kept alive by 43 Geo. 3. c. 59, 158

Calico Printer. See Master and Servant. Case-Court of Quarter Sessions ought not simply to state facts, and ask opinion of Court, as a jury, upon them; but, having drawn their own conclusion from facts, may ask whether, in the opinion of this Court, the facts will warrant their finding, 61

Where Quarter Sessions have dismissed appeal against order of removal, and granted case, which applicants for case have not brought up, Court will not, at their instance, unless under special circumstances, grant mandamus to the Court of Quarter Sessions, to enter continuances and hear appeal, 78 Certiorari-Affidavit of service of notice stating that deponent served "J. S, Esq. and T. H. M, Esq., two of Her Majesty's Justices of the Peace" for the West Riding, insufficient, by reason of its not stating that the Justices so served were two of the Justices before whom order of Sessions was made; and rule for quashing certiorari made absolute, special case being already set down for

argument in the Crown paper, where Court of Quarter Sessions having confirmed an order of removal, subject to a case, a notice of intention of appellant parish to apply for a certiorari, was addressed to "J. S, Esq., and T. H. M, Esq., two of Her Majesty's Justices and keepers of the peace" for the West Riding of the county of York, 26

Certiorari-Fresh writ not issuable where certiorari quashed for above reasons, and more than six months have elapsed from making the order, 28

Necessary that notice previous to applying for, under 13 Geo. 2. c. 18. s. 5, should be, in the first place, sworn to have been given to two Justices, before whom the order was made. Omission in this respect cannot be supplied by a subsequent affidavit, 46

Chargeability-Insufficient evidence of, in examination, 74

Commitment-Warrant of, directing gaoler to imprison party for three months, omitting day of the month on which it was granted, bad, 16

on a conviction, must recite a conviction for an offence over which committing Magistrate had jurisdiction; and Court will not presume a conviction to be good, which, according to recital, shews a want of jurisdiction. Commitment under 7 & 8 Geo. 4. c. 29. s. 26, reciting a conviction, that defendant "did unlawfully kill and carry away one fallow deer, the property of Her Majesty Queen Victoria, against the form of the statute,' bad, for omitting to state that the deer was in the uninclosed part of some forest, chace, or purlieu,

43

under 4 Geo. 4. c. 34. s. 2, stating that defendant, a miner, had contracted to serve A. B, but omitting to state "in the employment of a miner," bad. Commitment, under that statute, alleging complaint of master on oath, and then reciting that the Magistrate had duly examined the proofs and allegations of both parties touching the matter of complaint, and adjudging it to be true, bad for want of averment that latter examination was on oath, 46

for refusing to give sureties to keep the peace may be made to the house of correction, 52

Invalidity of commitment, setting forth order of Quarter Sessions, confirming conviction under 9 Geo. 4. c. 69. s. 1, and directing gaoler to detain parties at the expiration of the period of imprisonment awarded for their offence, until they shall find sureties and enter into recognizances that they shall not offend again for the space of one year from the conviction, instead of that they shall not so offend again. Where certiorari taken away from defendant, but not from prosecutor, Court will assume that warrant of commitment contains a true recital of conviction, unless it is brought before Court by prosecutor, though the recital shews conviction to be bad, 65

Invalidity of commitment, under 11 Geo. 2. c. 19. s. 4, for fraudulent removal of goods, for omitting to state complaint, in writing, by landlord, his bailiff, agent, or servant, though order of adjudication states defendant to have been duly charged, in writing, before the Magistrate, 141

Necessity, where act of parliament gives Magistrates a power of commitment, without a

previous conviction, that it should appear on face of warrant of commitment that charge was heard and evidence taken in presence of prisoner. Court will not intend a good conviction to support a bad commitment, 145

Commitment-Where validity of previous document, whereon prisoner was in fact committed, not inquired into, if good commitment shewn on return to habeas corpus, 147

What must be stated in commitment, under 4 Geo. 4. c. 34, s. 2, 161 Conspiracy-As to sufficiency of indictment charging that defendants did unlawfully combine, conspire, confederate, and agree together, to cheat and defraud certain liege subjects of our Lady the Queen, being tradesmen (not naming them), of divers large quantities of their goods and chattels; and as to looking to overt acts, in aid of charging part of indictment. Count, charging such conspiracy, and then setting out several overt acts, alleged to have been done in pursuance of the conspiracy, namely, the purchase, by one of the defendants, of goods of several tradesmen (naming them) upon credit, and of other tradesmen, whose names were unknown, with direction, that the goods should be delivered at the house of that defendant; that no payment was ever made for them; the pretence that certain debts were due from that defendant to the others (setting out the debts); that actions, on account of these fictitious debts, were commenced against such defendant by the others, and judgments signed for want of plea, and writs of fi. fa. sued out upon the judgments, by virtue of which, the goods and chattels so fraudulently obtained were taken in execution; concluding with an averment, that so the defendants did cheat and defraud the tradesmen who supplied the goods, &c., good on motion in in arrest of judgment, &c., 118

Indictment charging defendants with conspiring to cause goods which had been imported, &c., and in respect of which certain duties of Customs were payable to the Queen, to be carried away from port without payment of duties, with intent to defraud the Queen in her revenue of Customs; and containing counts charging defendants generally with conspiring to defraud the Queen of duties by false and fraudulent representations of the value and nature of the goods, sufficiently certain, without shewing what the goods were, or what duties were payable on them. Distinction as to the admissibility of evidence of entries made by co-conspirator, in pursuance of conspiracy and made after the conspiracy has been completed, e. g. the entries in day-book of a custom-house agent, an alleged co-conspirator, relative to transactions, amount of duties actually paid on passing goods through the Custom House, and the butt or counterfoil of his cheque-book, 131 Conviction-No intendment of good conviction to support bad commitment, 145

See Game. Coroner-Inquisition bad, where coroner for city of Rochester held inquisition on a body, which met with death in the River Medway, had been brought to spot above high-water mark, sworn to be within the county of Kent, and was there viewed by jury of city of Rochester, 150