« EelmineJätka »
convicted for fishing in a pond, the commit- way, pursuant to the provisions of 5 & 6 ment omitting to state that it was inclosed. Vict. c. 50. ss. 94, 95, and at the trial of The Court did not enter into the question, which the defendant was found guilty, and whether the conviction was right or wrong, an order for the payment of the costs of the but held the commitment to be bad. In indictment was made by the Sessions. that case an action of trespass had been Hall shewed cause, and objected to the brought, and the question arose in the course order of Sessions, amongst other things, that of the trial, but in other respects it is not it did not appear by the original order of distinguishable from the present case. I Justices, made at special sessions, and by therefore think that this warrant is void ; which the indictment was directed to be and although I should not certainly have preferred, that the road in question was held that I was bound to discharge the within the division in and for which such prisoner, if the defect were a mere infor- special sessions were held— The Queen v. mality, yet where there is a defect of juris- Cartworth (1), Walton v. Chesterfield (2). diction apparent on the face of the warrant, The divisions of counties, with reference to I feel that I ought not to assume that the special sessions, is regulated by 9 Geo. 4. Magistrate possessed any. I also think c. 43. and 6 Will. 4. c. 12. On this obthat this case is not distinguishable from jection being taken, the Court called on The Queen v. Chaney, where the warrant Pashley, in support of the rule.—This is was defective in the same respect. As to a proceeding founded on the order of Quarter The King v. Rogers, it is to be observed, Sessions. The order of Magistrates is not that the objection raised was with respect in question-Sellwood v. Mount (3). to the omission of a proper award of the (LORD Denman, C.J.-The question will penalty, a mere matter of form. It was be, whether the Quarter Sessions were procertainly a formal defect, which would have perly set in motion ?] rendered the conviction bad, if it were con- It must be taken, that everything alleged tained in it, but the commitment itself did in the order of Quarter Sessions is true. not exhibit any want of jurisdiction. That order of Sessions shews the road to be
within the division. Prisoner discharged.
[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 suffi1843.
cient and proper order.] Nov. 23. S
The act of parliament is merely directory. Highway-Order of Magistrates--Cer- Many things are essential to making orders tainty.
at petty sessions, which need not appear in
the orders themselves. In an order made by Magistrales at special Sessions, under 5 & 6 Will. 4. c. 50. LORD DENMAN, C.J.-I think this objec3. 94, 95, for the indictment of a highway, tion must prevail. In cases of this sort, all it should distinctly appear that such highway things necessary to give the Sessions jurisis within the division for which such special diction should appear in every part of the sessions are held; and if that do not appear, proceedings. I see no difficulty likely to the subsequent proceedings at the Quarter arise from this rule, any more than in inSessions are void, though it may appear, on dictments, where everything must be shewn the face of them, that the highway was within necessary to a complete description of the their jurisdiction.
Rule discharged. Rule for a mandamus, calling on the
(1) Ante, 26. Magistrates of the West Riding of York- (2) 5 Mod. 322. shire, to issue a warrant for levying costs (3) 1 Q.B. Rep. 726; 8. c. 10 Law J. Rep. (N.s.)
M.C. 121. against a party against whom an indictment had been preferred for not repairing a high
THE QUEEN 0. MARTIN AND
1843. THE QUEEN V. THE INHABITNov. 23. S ANTS 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.
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.
THE QUEEN V. LEWIS.
the usual way.
Baines had obtained a rule nisi for quashing the certiorari issued in this case, for
BAIL COURT. bringing up an order made at the sessions 1844. for the West Riding of Yorkshire. The Jan. 13. objection was, that the two Justices on whom
Commitment-Statute 4 Geo. 4. c. 34. s. 2. the notice had been served, were not sworn to have been two of those before whom the A commitment, under 4 Geo. 4. c. 34. s. 2, order had been made.
stating, that the defendant, a miner, had conArchbold shewed cause.–First, the affi- tracted to serve A. B, but omitting to state davits are
not properly entitled. They " in the employment of a miner,”—Held bad. should, in moving for this rule, have been A commitment, under that statute, alleging entitled, “ The Queen v. the Inhabitants of a complaint of the master on oath, and then Gilbersome." This is the converse of the reciting that the Magistrate had duly examcase of Hollis v. Brandon (1). The rule is ined the proofs and allegations of both the to quash a certiorari which has already issued. parties touching the matter of the complaint,
(LORD DENMAN, C.J.-The officer of the and adjudging it to be true, held bad for court informs us, that they are entitled in want of an averment that the latter examin
These affidavits were right ation was on oath. when sworn, and are now set out in the subsequent proceedings. In informations, The defendant, and two other persons, the same thing takes place. The Court named Jones and Fairley, had been comthere refers to affidavits which are sworn, but mitted to Stafford gaol, under a commitment not entitled.]
by a Magistrate, which, after the usual direcSecondly, we now produce an affidavit, tion, stated, that “whereas complaint hath that one of the Magistrates on whom the been made unto me, of her Majesty's Jusnotice was served, was the chairman of the tices of the Peace, in and for the said county, sessions, and that the other was present upon the oath of James Dabbs, of the parish when the order was made.
of Wednesbury, miner, that Thomas Lewis, Baines, contrà.Such an affidavit is now late of the foreign of Walsall, in the said too late. The certiorari was granted at the county, miner, hath contracted with the said time on imperfect materials - The Queen v. James Dabbs, and Samuel Dabbs, his partner, the Justices of Shrewsbury and Salop (2); to serve them in the employment of a miner, and no opportunity given of shewing cause until he shall have given to or received from against granting it.
his said masters one fortnight's notice to
quit and leave his said masters' service, and LORD DENMAN, C.J.-We decided, the until such notice shall have fully expired, other day, that it should appear by the and hath entered into such service, and affidavit of service of the notice, under sta- absented himself from the same service, in
the county aforesaid, without his said mas(1) i Bos. & Pul. 36. (2) 10 Law J. Rep. (N.s.) M.C. 8.
(3) The Queen v. Cartworth, ante, 26.
THE QUEEN V. THE INHABIT
ANTS OF PERRANZABULOE.
ters' consent, before his said contract was stantive distinct part, empowers the Justice completed. And whereas, in pursuance of to examine into the matter. At that hearing the statute in such case made and provided, something might occur to excuse the party, I have duly examined the proofs and alle- and it is quite clear that it therefore ought gations of both the said parties, touching to be upon oath. The commitment is conthe matters of the said complaint, and upon sequently defective. due consideration had thereof, have adjudged
Prisoners discharged. 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." 1844. The commitment then directed his impri- Jan. 20. sonment. The commitments in the other two cases were the same, with the excep
Appeal- Examination—Chargeabilitytion that the words, " in the employment of
Order of Sessions. a miner,” were omitted. The prisoners Where the examinations do not disclose being now brought up under a writ of habeas
any evidence of chargeability, and the order corpus,
of removal is on that ground quashed geneBodkin moved for their discharge.--Herally by order of Sessions, such order of objected as to the two latter commitments, Sessions cannot be treated as conclusive of the that the omission of the statement, that they settlement of the pauper; and at a subsequent contracted to serve in the employment of Sessions the ground on which the former miners, rendered them void under 4 Geo. 4.
order was quashed may be shewn. c. 34. s. 2; and that, as to the first com- The question of chargeability is a question mitment, the conviction was not stated to
on the merits ; i.e. on the merits as they have been founded upon evidence given on exist at the time of removal, and does not oath.
affect the goodness or badness of the settle
ment. Williams, J. called on
F. V. Lee to support the commitments.- Upon an appeal against the order of two It must be admitted that the last two com- Justices, for the removal of Catharine Cockmitments are bad, for the reason assigned; ing from the parish of Perranzabuloe, in but as to the first, the question is, whether the county of Cornwall, to the borough of the recital, that complaint had been made Bodmin, in the same county, the Sessions upon oath, cannot be called in aid to shew quashed the order, subject to the opinion of what were the proofs and allegations into the Court upon a case, which set out the which the Magistrate had examined. In examination of the pauper and other persons, effect the Magistrate says, that complaint on which the order was made, and which has been made to me, upon the oath of went to shew relief given to the pauper by James Dabbs, and then goes on to say, “I the appellant parish, whilst residing in the have examined the proofs and allegations respondent parish; and which also stated of both the said parties, that is, the proof the said Catharine Cocking to be then resiupon oath.
dent in and chargeable to the parish of
Perranzabuloe. WILLIAMS, J.-Indeed, I do not think One of the grounds of appeal was, “ beany such construction can be given to the cause a former order of H. W. and W. P. K, commitment. As Lord Ellenborough said two of her Majesty's Justices of the Peace, in one case, “I cannot read this in a manner in and for the said county of Cornwall, different from that which I should adopt in removing the said Catharine Cocking from reading any other composition, and I am the said parish of Perranzabuloe, to the not to resort to any violent intendment to said borough of Bodmin, has been quashed support it.” The statute requires the com- by the Court of Quarter Sessions for the plaint to be upon oath, and then, in a sub- county of Cornwall, at the April Sessions,
in the present year, and which said order tain no statement of chargeability, and the of the said Court of Quarter Sessions, re- order of removal is quashed on that ground, lated directly to the point then and now in that is not conclusive of the question of question between the parties to the present settlement: many cases go to establish that. appeal, and is therefore binding and conclu- If a pauper is not chargeable to-day, he may sive between them, so far as respects the be to-morrow(1), but how does that touch place of the last legal settlement of the said the goodness or badness of the settlement ?] Catharine Cocking,
In The Queen v. Charlbury and Walcot At the hearing of the appeal, the appel- (2), the Court seems to have intimated that lants, in support of this ground of appeal, a defect in the examination, which the Sesput in an order of Sessions, dated the 5th of sions judged material to the merits, was conApril 1843, whereby, upon an appeal against clusive ; and, in that case, the Sessions rean order, bearing date the 9th of November fused to hear a witness who was tendered to 1842, under the hands and seals of H. W. shew the ground on which a former order and W. P. K, Esqrs., two of her Majesty's was quashed. Justices, &c., for the removal of Catharine [COLERIDGE, J.-In that case, the fact Cocking, widow, from the respondent to the which the Sessions judged material was a appellant parish, such order was, upon date ; such a date might have been material, hearing what could be proved and alleged and how could we say that it was not? It on oath on either side, ordered and adjudged must not be supposed that that case turned to be reversed;" and the churchwardens and at all on the refusal to hear; the Sessions, overseers of the borough of Bodmin were knowing what the evidence was, were satisordered to take and convey the said Catha- fied that it would not alter their decision.] rine Cocking from the said borough to the The former Sessions not having made any parish of Perranzabuloe, and deliver her to special entry of the special ground on which the churchwardens and overseers of the poor the order was made, it must be taken to be of that parish, who were thereby required to made on the merits. receive her and provide for her as their own [PATTESON, J.-Chargeability and reparishioner. And the appellants further moveability are both merits. In The Queen identified the pauper as being the subject of v. Charlbury I expressly drew the distincthe former order.
tion, and it applies here. The second reIn answer to this, the respondents ten- moval is made upon a new state of facts, and dered evidence to shew that the merits were the question on the second appeal has nonot heard at the trial of the former appeal. thing to do with that which has been already It was then admitted on both sides, that decided.] the former order, of the 29th of November, was quashed, because the examination, upon LORD DENMAN, C.J.-Granting you all which that order was founded, did not con- that you wish in point of principle, still it is tain evidence of chargeability; and the
clear that the Sessions were wrong. The Court, being of opinion that the omission former order of Sessions was made upon the went to the merits, quashed the second order state of facts then presented to them. Their generally.
decision on those facts was a decision on If this Court should be of opinion that the the merits, but such decision cannot affect former order was not quashed upon the the new case that is presented to them. The merits, the order of Quarter Sessions to be Sessions have misapprehended the effect of quashed; but if the Court should be of a con- the former decision of this Court. trary opinion, the same to stand confirmed.
Order of Sessions quashed. Érle, (Johnson was with him,) in support of the order of Sessions. The order was
Greenwood was on the other side. quashed generally at a former sessions. That
(1) See Osgathorpe v. Diseworth, 2 Stra. 1256; was a solemn adjudication, and the subse
The King v. Wheelock, 5 B. & C. 511. quent Sessions had a right to treat such for- (2) Ante, p. 20; s. c. 3 Gale & Dav. 117. mer order as conclusive.
[PATTESON, J.-If the examination con
THE QUEEN V. THE INHABITANTS
OF CUMBERWORTH HALF.
never done any act since whereby to gain a Nov. 11.
settlement. I was married at Louth, in Lin1844.
colnshire, to my wife, Sarah Roberts, in the Jan. 20.
On the hearing of the appeal, Eramination — Particularity - Grounds
as soon as the respondents had opened their of Appeal-Settlement by renting Feed of a
case, the appellants objected that the said Cow.
examination was insufficient on the face of
it, and that the said order of removal ought, The examination of a pauper stated that he on that ground, to be quashed. The grounds was put out an apprentice by covenant inden- of insufficiency relied on under the grounds ture :-Held, that the nature of the binding of appeal, which properly pointed them out, was described with sufficient particularity, as were, that the alleged indenture of apprendistinguished from a binding by the parish. ticeship was neither shewn to have been
A settlement set up in one of the grounds produced before the Justices who took the of appeal was, that the pauper had rented said examination, nor was its loss or de"a tenement,” consisting of the keeping or struction sufficiently shewn, to let in seconfeeding of a cow, of which he was the owner, dary evidence before the said Justices of " by and on the land and premises” of J. H, such indenture; and that, if a sufficient for the space of one whole year, and which foundation were laid in the said examination was of the value of 101. a year at the least : to warrant the reception of such secondary -Held, insufficient, as not shewing, on the evidence, then, that the secondary evidence face of it, that the cow was to be fed on the given respecting the said indenture was growing produce of the land.
wholly defective and insufficient, in the fol
lowing respects; that is to say, that it did On an appeal against an order of two not appear by the said examination whether Justices, for the removal of William Burdett, the said William Burdett was a parish apand Sarah, his wife, from the township of prentice, or by whom he was bound, or who Denby, in the West Riding of the county were the parties to the supposed indenture ; of York, to the township of Cumberworth and that, if he were a parish apprentice, then, Half, in the same riding, the Sessions con- that it did not appear by the said examination firmed the order, subject to the opinion of whether the said binding was allowed by the this Court upon the following
Justices of the Peace; and that it did not
appear by the said examination either that CASE.
the money given or contracted for in relation The examination respecting the settlement to such apprentice was inserted in the said of the said William Burdett, and Sarah, his indenture, or that the said indenture was wife, whereon the said order was made, was duly stamped, in pursuance of the statutes the following :- This examinant (William in force at the time when it was executed. Burdett) maketh oath and saith, I am sixty- The Court of Quarter Sessions, after hearing nine years of age, and the place of my settle- counsel on both sides upon the alleged inment is at Cumberworth Half, in the said sufficiency of the said examination, overruled riding, which I gained by apprenticeship the objections taken, and held the said exawith Amos Burdett, of Gilfit, in Cumber- mination good. The appellants, after such worth Half aforesaid. When I was about decision of the Court, conceded that the refourteen years of age, I was put out an ap- spondents could prove the settlement stated prentice by covenant indenture to the said in the examination, and that settlement was Amos Burdett for the term of seven years, taken as proved. The appellants proposed to learn the trade of a clothier, and I went rely on a subsequently acquired settleto, and resided with, the said Amos Burdett, ment, as stated in the following, which was in Cumberworth Half, under the said inden- the seventh ground :—That, subsequent to ture, for five years and six months, when the said alleged apprenticeship in our said my brother, Joseph Morton, purchased my township of Cumberworth Half, that is to time out with my master for the sum of two say, in or about the year 1812, the said guineas, which was paid by my mother, and William Burdett, the pauper, rented a cotthe indentures were destroyed; and I have tage or tenement of the value and for the NEW SERIES, XIII.-Mag. Cas.