being in any uninclosed part of any forest, chace, or purlieu, he shall, for every such offence, on conviction thereof, before a Justice of the Peace, forfeit and pay a sum not exceeding 50l." That the deer should be in some uninclosed part of a forest, chace, or purlieu, is a necessary portion of the offence, and in that respect the conviction is defective. The prior part of the section, which makes it an offence if the deer be in any inclosed part of a forest, &c., or any inclosed land wherein deer are usually kept, declares the offence to be felony, over which the Justice has no power of summary conviction. For anything that appears on this commitment, and on the conviction recited in it, the deer in question may have been in such an inclosure; or it may have been in some other uninclosed place, not being part of any forest, chace, or purlieu, where it would be no offence to kill it.

Smirke was then called on to support the commitment. It must be admitted that the conviction would be bad if it were in the form recited; but the warrant need not be so precise; and so long as it states that the defendant has been convicted, it suffices, and the Court will presume, till the contrary is shewn, that the conviction was regular. This is provided for by the 71st section, which enacts, "that no warrants of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party had been convicted, and there be a good and valid conviction to sustain the same. Then, in The King v. Taylor (1), it was held, that although the warrant of commitment is plainly defective on the face of it, yet, if it shews there has been a conviction, the Court will not notice the defect, till the conviction itself is brought before them. The King v. Rogers (2) is an authority to the same effect. That decision would certainly appear to be at variance with the judgment in The Queen v. Chaney (3); but it was not cited in the argument, otherwise the decision might have been different. The object of the section of the act was to render the form of the warrant immaterial, and so

[PATTESON, J.-According to that argument, it would be good if the Magistrate were merely to say, "the defendant has been convicted by me in a penalty: receive him into your custody." Looking at The King v. Rogers, it appears to me to be quite contrary to what I decided in The Queen v. Chaney.]

That case is perhaps distinguishable: the commitment stated a continuance to navigate a ship after a pilot had offered his services, which constituted no offence per se.

[PATTESON, J.-It was an offence if the party knew it; so here it would be an offence if the deer were in the uninclosed

part of a forest. What a monstrous thing it would be, that there should be a bad warrant of commitment, and a bad conviction, as far as we can see, and that the party cannot be discharged. I cannot, however, overrule the decision of the full Court, without taking time to consider.]

Barstow.-The King v. Rogers is not applicable; the warrant there recited a perfectly good conviction, so far as the jurisdiction of the Magistrates was concerned; but an objection was raised, that the penalty was not duly awarded. That was a mere formal matter; it shewed no want of jurisdiction, like this commitment. If the argument on the other side were sound, a warrant of commitment, directing the gaolers to receive the body of A. B, duly convicted before me, without specifying any offence at all, would be valid. Here, too, the certiorari is taken away, which creates a distinction between this and the cases quoted, for it deprives the party of any means of seeing whether the conviction be right. It may be conceded, that a warrant of commitment need not contain the same nicety as an indictment; but it is absolutely necessary it should shew some jurisdiction; and here the jurisdiction, which appears to have been exercised, was no jurisdiction at all.

PATTESON, J.-Wickes v. Clutterbuck (4) was a case in which the party had been

(4) 4 Bing. 433; s. c. 3 Law J. Rep. C.P. 67.

convicted for fishing in a pond, the commitment omitting to state that it was inclosed. The Court did not enter into the question, whether the conviction was right or wrong, but held the commitment to be bad. In that case an action of trespass had been brought, and the question arose in the course of the trial, but in other respects it is not distinguishable from the present case. I therefore think that this warrant is void; and although I should not certainly have held that I was bound to discharge the prisoner, if the defect were a mere informality, yet where there is a defect of jurisdiction apparent on the face of the warrant, I feel that I ought not to assume that the Magistrate possessed any. I also think that this case is not distinguishable from The Queen v. Chaney, where the warrant was defective in the same respect. As to The King v. Rogers, it is to be observed, that the objection raised was with respect to the omission of a proper award of the penalty, a mere matter of form. It was certainly a formal defect, which would have rendered the conviction bad, if it were contained in it, but the commitment itself did not exhibit any want of jurisdiction.

1843.

Nov. 23. J

Prisoner discharged.

THE QUEEN v. MARTIN AND ANOTHER.

way, pursuant to the provisions of 5 & 6 Vict. c. 50. ss. 94, 95, and at the trial of which the defendant was found guilty, and an order for the payment of the costs of the indictment was made by the Sessions.

Hall shewed cause, and objected to the order of Sessions, amongst other things, that it did not appear by the original order of Justices, made at special sessions, and by which the indictment was directed to be preferred, that the road in question was within the division in and for which such special sessions were held-The Queen v. Cartworth (1), Walton v. Chesterfield (2). The divisions of counties, with reference to special sessions, is regulated by 9 Geo. 4. c. 43. and 6 Will. 4. c. 12. On this objection being taken, the Court called on

Pashley, in support of the rule.-This is a proceeding founded on the order of Quarter Sessions. The order of Magistrates is not in question-Sellwood v. Mount (3).

[LORD DENMAN, C.J.-The question will be, whether the Quarter Sessions were properly set in motion?]

It must be taken, that everything alleged in the order of Quarter Sessions is true. That order of Sessions shews the road to be within the division.

[COLERIDGE, J.-But you should shew enough to give the Sessions jurisdiction to try; and that depends on the question, whether the order of Magistrates was a sufficient and proper order.]

tainty.

In an order made by Magistrates at special Sessions, under 5 & 6 Will. 4. c. 50. 38. 94, 95, for the indictment of a highway, it should distinctly appear that such highway is within the division for which such special sessions are held; and if that do not appear, the subsequent proceedings at the Quarter Sessions are void, though it may appear, on the face of them, that the highway was within their jurisdiction.

Rule for a mandamus, calling on the Magistrates of the West Riding of Yorkshire, to issue a warrant for levying costs against a party against whom an indictment had been preferred for not repairing a high

at petty sessions, which need not appear in the orders themselves.

LORD DENMAN, C.J.-I think this objection must prevail. In cases of this sort, all things necessary to give the Sessions jurisdiction should appear in every part of the proceedings. I see no difficulty likely to arise from this rule, any more than in indictments, where everything must be shewn necessary to a complete description of the subject-matter. Rule discharged.

(1) Ante, 26.

(2) 5 Mod. 322.

(3) 1 Q.B. Rep. 726; s. c. 10 Law J. Rep. (N.s.)

M.C. 121.

1843. Nov. 23.

THE QUEEN v. THE INHABITANTS OF GILBERSOME. Certiorari-Notice under 13 Geo. 2. c. 18. s. 5.

It is necessary that the notice previous to applying for a certiorari under statute 13 Geo. 2. c. 18. s. 5, should be, in the first instance, sworn to have been given to two Justices, before whom the order was made; and an omission, in this respect, cannot be supplied by a subsequent affidavit.

Baines had obtained a rule nisi for quashing the certiorari issued in this case, for bringing up an order made at the sessions for the West Riding of Yorkshire. The objection was, that the two Justices on whom the notice had been served, were not sworn to have been two of those before whom the order had been made.

Archbold shewed cause.-First, the affidavits are not properly entitled. They should, in moving for this rule, have been entitled, "The Queen v. the Inhabitants of Gilbersome." This is the converse of the case of Hollis v. Brandon (1). The rule is to quash a certiorari which has already issued.

[LORD DENMAN, C.J.-The officer of the court informs us, that they are entitled in the usual way. These affidavits were right when sworn, and are now set out in the subsequent proceedings. In informations, the same thing takes place. The Court there refers to affidavits which are sworn, but not entitled.]

Secondly, we now produce an affidavit, that one of the Magistrates on whom the notice was served, was the chairman of the sessions, and that the other was present when the order was made.

Baines, contrà.-Such an affidavit is now too late. The certiorari was granted at the time on imperfect materials-The Queen v. the Justices of Shrewsbury and Salop (2); and no opportunity given of shewing cause against granting it.

LORD DENMAN, C.J.-We decided, the other day, that it should appear by the affidavit of service of the notice, under sta

(1) 1 Bos. & Pul. 36.

(2) 10 Law J. Rep. (N.s.) M.C. 8.

tute 13 Geo. 2. c. 18. s. 5, that such notice was served on two Magistrates present at the time of making the order of sessions (3). It is too late now to come with an affidavit that they were, in fact, present. As well might the notice have been sworn to have been served on two Magistrates of the county of Middlesex, and then, on objection taken, might we have an affidavit that such Magistrates were also Magistrates for the West Riding of Yorkshire.

Commitment-Statute 4 Geo. 4. c. 34. s. 2. A commitment, under 4 Geo. 4. c. 34. s. 2, stating, that the defendant, a miner, had contracted to serve A. B, but omitting to state "in the employment of a miner,"-Held bad.

A commitment, under that statute, alleging a complaint of the master on oath, and then reciting that the Magistrate had duly examined the proofs and allegations of both the parties touching the matter of the complaint, and adjudging it to be true, held bad for want of an averment that the latter examination was on oath.

The defendant, and two other persons, named Jones and Fairley, had been committed to Stafford gaol, under a commitment by a Magistrate, which, after the usual direction, stated, that "whereas complaint hath been made unto me, one of her Majesty's Justices of the Peace, in and for the said county, upon the oath of James Dabbs, of the parish of Wednesbury, miner, that Thomas Lewis, late of the foreign of Walsall, in the said county, miner, hath contracted with the said James Dabbs, and Samuel Dabbs, his partner, to serve them in the employment of a miner, until he shall have given to or received from his said masters one fortnight's notice to quit and leave his said masters' service, and until such notice shall have fully expired, and hath entered into such service, and absented himself from the same service, in the county aforesaid, without his said mas

(3) The Queen v. Cartworth, ante, 26.

ters' consent, before his said contract was completed. And whereas, in pursuance of the statute in such case made and provided, I have duly examined the proofs and allegations of both the said parties, touching the matters of the said complaint, and upon due consideration had thereof, have adjudged and determined, and do hereby adjudge and determine, the said complaint to be true, and I do therefore convict the said Thomas Lewis of the said offence, in pursuance of the statute in such case made and provided." The commitment then directed his imprisonment. The commitments in the other two cases were the same, with the exception that the words, "in the employment of a miner," were omitted. The prisoners being now brought up under a writ of habeas corpus,

Bodkin moved for their discharge.-He objected as to the two latter commitments, that the omission of the statement, that they contracted to serve in the employment of miners, rendered them void under 4 Geo. 4. c. 34. s. 2; and that, as to the first commitment, the conviction was not stated to have been founded upon evidence given on oath.

WILLIAMS, J. called on

F. V. Lee to support the commitments.It must be admitted that the last two commitments are bad, for the reason assigned; but as to the first, the question is, whether the recital, that complaint had been made upon oath, cannot be called in aid to shew what were the proofs and allegations into which the Magistrate had examined. In effect the Magistrate says, that complaint has been made to me, upon the oath of James Dabbs, and then goes on to say, "I have examined the proofs and allegations of both the said parties, that is, the proof upon oath.

WILLIAMS, J.-Indeed, I do not think any such construction can be given to the commitment. As Lord Ellenborough said in one case, "I cannot read this in a manner different from that which I should adopt in reading any other composition, and I am not to resort to any violent intendment to support it." The statute requires the complaint to be upon oath, and then, in a sub

Where the examinations do not disclose any evidence of chargeability, and the order of removal is on that ground quashed generally by order of Sessions, such order of Sessions cannot be treated as conclusive of the settlement of the pauper; and at a subsequent Sessions the ground on which the former order was quashed may be shewn.

The question of chargeability is 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 badness of the settle

ment.

Upon an appeal against the order of two Justices, for the removal of Catharine Cocking from the parish of Perranzabuloe, in the county of Cornwall, to the borough of Bodmin, in the same county, the Sessions quashed the order, subject to the opinion of the Court upon a case, which set out the examination of the pauper and other persons, on which the order was made, and which went to shew relief given to the pauper by the appellant parish, whilst residing in the respondent parish; and which also stated the said Catharine Cocking to be then resident in and chargeable to the parish of Perranzabuloe.

One of the grounds of appeal was, 66 because a former order of H. W. and W. P. K, two of her Majesty's Justices of the Peace, in and for the said county of Cornwall, removing the said Catharine Cocking from the said parish of Perranzabuloe, to the said borough of Bodmin, has been quashed by the Court of Quarter Sessions for the county of Cornwall, at the April Sessions,

in the present year, and which said order of the said Court of Quarter Sessions, related directly to the point then and now in question between the parties to the present appeal, and is therefore binding and conclusive between them, so far as respects the place of the last legal settlement of the said Catharine Cocking.

At the hearing of the appeal, the appellants, in support of this ground of appeal, put in an order of Sessions, dated the 5th of April 1843, whereby, upon an appeal against an order, bearing date the 9th of November 1842, under the hands and seals of H. W. and W. P. K, Esqrs., two of her Majesty's Justices, &c., for the removal of Catharine Cocking, widow, from the respondent to the appellant parish, such order was, "upon hearing what could be proved and alleged on oath on either side, ordered and adjudged to be reversed;" and the churchwardens and overseers of the borough of Bodmin were ordered to take and convey the said Catharine Cocking from the said borough to the parish of Perranzabuloe, and deliver her to the churchwardens and overseers of the poor of that parish, who were thereby required to receive her and provide for her as their own parishioner. And the appellants further identified the pauper as being the subject of

the former order.

In answer to this, the respondents tendered evidence to shew that the merits were not heard at the trial of the former appeal. It was then admitted on both sides, that the former order, of the 29th of November, was quashed, because the examination, upon which that order was founded, did not contain evidence of chargeability; and the Court, being of opinion that the omission went to the merits, quashed the second order generally.

If this Court should be of opinion that the former order was not quashed upon the merits, the order of Quarter Sessions to be quashed; but if the Court should be of a contrary opinion, the same to stand confirmed.

Erle, (Johnson was with him,) in support of the order of Sessions.-The order was quashed generally at a former sessions. That was a solemn adjudication, and the subsequent Sessions had a right to treat such former order as conclusive.

[PATTESON, J.-If the examination con

tain no statement of chargeability, and the order of removal is quashed on that ground, that is not conclusive of the question of settlement: many cases go to establish that. If a pauper is not chargeable to-day, he may be to-morrow(1), but how does that touch the goodness or badness of the settlement?]

In The Queen v. Charlbury and Walcot (2), the Court seems to have intimated that a defect in the examination, which the Sessions judged material to the merits, was conclusive; and, in that case, the Sessions refused to hear a witness who was tendered to shew the ground on which a former order was quashed.

[COLERIDGE, J.-In that case, the fact which the Sessions judged material was a date; such a date might have been material, and how could we say that it was not? It must not be supposed that that case turned at all on the refusal to hear; the Sessions, knowing what the evidence was, were satisfied that it would not alter their decision.]

The former Sessions not having made any special entry of the special ground on which the order was made, it must be taken to be made on the merits.

[PATTESON, J.-Chargeability and removeability are both merits. In The Queen v. Charlbury I expressly drew the distinction, and it applies here. The second removal is made upon a new state of facts, and the question on the second appeal has nothing to do with that which has been already decided.]

LORD DENMAN, C.J.-Granting you all that you wish in point of principle, still it is clear that the Sessions were wrong. The former order of Sessions was made upon the state of facts then presented to them. Their decision on those facts was a decision on the merits, but such decision cannot affect the new case that is presented to them. The Sessions have misapprehended the effect of the former decision of this Court.

Order of Sessions quashed.

Greenwood was on the other side.

(1) See Osgathorpe v. Diseworth, 2 Stra. 1256; The King v. Wheelock, 5 B. & C. 511.

(2) Ante, p. 20; s. c. 3 Gale & Dav. 117.