entitled to have the fund applied to the purposes for

which he claimed the same.

[C. B.

COURT OF QUEEN'S BENCH.

HERTSLET, Esqrs., Barristers-at-Law.

Malins, Q.C. and Fry appeared for the Rev. Mr. Reported by JOHN THOMPSON, T. W. SAUNDERS, and C. J. B. Courtenay;

Hardy for the deft. Pascall;

Bacon, Q.C. and Drake for the Rev. Mr. Maguire;
Woodroffe for the relators; and

Wickens for the Attorney-General.

Wednesday, April 24.

REG. v. PICKFORD.

Order of affiliation—Application for a summons—
Death of justice granting it—Subsequent application
for another summons after the year - Order.
When an application is made to a justice to issue a
summons in bastardy under the 7 & 8 Vict. c. 101,
8. 2, that justice only has authority to issue such

summons.

An application to a justice for a summons within a year after the birth of a bastard child will not authorise another justice in issuing a summons upor such application.

Where, therefore, a woman made application to a justice within a year after the birth of a bastard child, and a summons was accordingly issued by him, but was not served in consequence of the putative father having absconded, and nothing was therefore done upon it, and the said justice died, and subsequently, but after the expiration of a twelvemonth from the birth of the child, the putative father returned, and an application was then made to another justice of the same division for a summons, which was granted, and an order of affiliation thereupon made which recited the first application, the issuing of the summons, its not having been served on account of the absconding of the man, and the death of the justice:

Held, that the order was bad, as it was not founded upon a summons issued upon a complaint made within a twelvemonth of the birth of the child, and as the original application to the justice who subsequently died could not be connected with the subsequent summons.

The VICE-CHANCELLOR.-The true construction of these very loosely-framed documents, which are called appeals, seems to show, I think, that the primary purpose that is to say, the thing first contemplated as most urgently required, and to effect which the money was asked for-was the building of a church at Pentonville. The expressions are very loose, and the documents are oddly framed, but it is impossible not to see that the first thing for which the money was wanted was the benefit of Pentonville church. At any rate it seems to me impossible, upon the whole case, to say that when the money was paid by the persons who were encouraged to subscribe it by these appeals-if the trustees, or those having the custody of it, seeking to apply it for the purposes for which it was subscribed, had given all that has now been collected for the building of the church now in the course of erection, that would have been a misapplication of the funds. The question now is, whether, when the matter comes before the court, with purposes so defined as they are by these appeals, this court, assisted by the opinion of a certain portion of the body who had a discretion, should say that the whole fund may or ought not properly to be applied to finish the church now in the course of erection, or that any part of it should not be reserved for building the church contemplated in another district of the same parish, for which it is said a site has been obtained. Upon the whole case it seems to me, there being a discretion in the court, that that which was wished by these trustees who are relators is the better mode of applying the fund, and is that which will be the most certain way to secure its application towards the primary object for which it was contributed, whilst it is clearly within the "Cheshire to wit.-At a petty session of her purposes for which the money was subscribed. There- Majesty's justices of the peace of the county of Chester, fore, instead of dividing the fund for an object which acting in and for the petty sessional division of Prestafter all was possibly, perhaps probably, not contem-bury, in the hundred of Macclesfield, in the same plated, and looking to the amount of the fund, I think county of Chester, holden at the County Police Office the better course will be to do what the relators sug-in Macclesfield, in the said county, in and for the said gest, viz., to direct that the whole fund (subject to the deduction which I am about to mention) be applied towards the erection of the church which is now being built. The deft. Mr. Courtenay claims the sum of 130/. as due to him out of the fund, in order to reimburse him for a sum equivalent to that amount which he has paid to Mr. Faulkner, who was the incumbent of the whole parish before it was divided into districts; and I think, in spite of all that has been urged by Mr. Bacon, it is very plain that Mr. Courtenay was dealing with this committee in such a way that when he paid this money he paid it on the faith and expectation that he should be reimbursed. I certainly think, although Mr. Courtenay derived a benefit from the application of the money, that he is entitled to have it repaid to him. The costs of all parties must be taxed and paid

out of the fund.

This was a rule to quash an order of affiliation returned into this court upon certiorari. The order was in the following form

division, on Tuesday, the 21st day of August 1860, before us, Charles Richard Banashe Leghi, John Dixon and John Upton Gaskell, Esquires, three of her Majesty's justices of the peace in and for the same county.

"Whereas, Jane Mason, of the township of Bollington, in the said county, single woman, did, on the 15th day of June 1858, at Macclesfield, in the said county, make information and complaint to Thomas Swanwick, Esquire, one of her Majesty's justices of the peace in and for the said county, and acting in and for the said division, that she was a single woman, and then resided within the township of Bollington, in the division and county aforesaid, and that on the 25th day of March 1858, she was delivered of a male bastard child, which was then living; and she chargeth William Pickford, of the township of Bollington, in the said county, labourer, with being the father of such child, and she then and there made application to the said justice for a summons to the said William Pickford, to appear at a petty session of the peace in and for the said division, to answer her complaint in the premises, Land thereupon the said justice issued his summons accordingly to the said William Pickford to appear and answer the said complaint at the said petty session, to be holden on a day therein mentioned, to wit, on the 29th day of June 1858. And whereas the said William Pickford, at the time of such application being

Woodroffe asked for the costs of the relators as between solicitor and client, on the ground of their being trustees, but

The VICE-CHANCELLOR refused. The costs of the Attorney-General were provided for separately.

Solicitors for the relators and for the Rev. A. Courtenay, Hilliard, Dale and Stretton; for the deft. Pascall and the Rev. R. Maguire, Boulton and Sons.

Q. B.]

REG. v. THE INHABITANTS OF AUGHTON.

[Q. B.

made, had absconded from Bollington aforesaid, and his | the justice who issued it died before the second applicaabode was then and has ever since until the month of tion was made. It was competent to make the second July last continued unknown to the said Jane Mason, application after the twelve months, when it was found and the said summons could not be served on the said that the deft. was again within the jurisdiction, for the William Pickford. And whereas the said Thomas statute had been fully satisfied by the first application Swanwick died on the 3rd day of Aug. 1859, and after- being made within the twelve months. [CROMPTON, wards, to wit, on the 14th day of July last, the said J.-The only question will be, if the second summons Jane Mason made application to Thomas Wardle, can be considered a continuation of the first. Must Esq., one of her Majesty's justices of the peace in and the judgment not be on the first application and for the said county, and acting in and for the summons?] If the application is in time it is said division, for a summons to the said William immaterial that the summons issues after the Pickford to appear at a petty session of the twelve months: (Potts v. Cumbridge, 27 L. J. peace in and for the said division, to answer her 63, M. C.; Ex parte Harrison, 19 L. T. Rep. 114.) complaint in the premises, and thereupon the said [CROMPTON, J.-The difficulty is to see how the last-mentioned justice issued his summons accordingly second summons could be issued by a different justice to the said William Pickford to appear and answer the from the one who entertained the first application. said complaint at the said petty session holden this BLACKBURN, J.-The statute seems to contemplate day. And whereas the said William Pickford hath that the same justice should issue the summons.] The been duly served with the said last-mentioned sum- mere issuing of the summons must be a mere matter mons, six days at least before this day, but he doth not of form, and as the application was made to the justice appear thereto, and Jane Mason is now present for the of the same division it cannot be material who issued purpose of obtaining from us the said justices in petty it. [BLACKBURN, J.-But does the statute say that? session assembled an order upon the said William It is not a common law jurisdiction this, but the creaPickford in the premises. Now, therefore, it being ture of statute. The statute does not seem to give proved to us, upon oath, that the said Jane Mason is jurisdiction to any justice but the one who entertained a single woman, and was at the time of application for the first application.] The words of the statute on the said first and last-mentioned summons as aforesaid, that point may be treated as directory. [HILL, J.— and still is, residing within the said township of The statute limits the power, and no other justice can Bollington, in the division and county aforesaid, issue the summons.] At all events, the order made and that on the said 25th day of March 1858 which recites all the circumstances of the first applishe was delivered of the said male child, and that such cation may be taken to cure any informality caused by child was born a bastard, and is still living. And we the death of the justice. The second application was having also heard the evidence upon oath of the said a continuation of the first. If the justices could enter Jane Mason the mother, and other evidence upon oath continuances on a roll, there could have been little as produced by her, and the evidence of the said Jane doubt of that, and it would defeat the object of the Mason, the mother, being corroborated in some material statute to hold this order bad. particulars by other testimony to our satisfaction, and we also having had the other facts and circumstances herein contained proved upon oath to us, do hereby adjudge the said William Pickford to be the putative father of the said bastard child. And having regard to all the circumstances of the case, we do hereby order that the said William Pickford shall pay unto the said Jane Mason, so long as she shall live and be of sound mind, and shall not be in any gaol or prison, or under sentence of transportation, and after her death, or unless she shall be of unsound mind, or confined in any gaol or prison, or under sentence of transportation, then unto such person as two justices may appoint, to have the custody of the said child, pursuant to the statute in such case made and provided, the sum of two shillings weekly and every week from the time of making the application first aforesaid until the said child shall attain the age of thirteen years, or shall die, or the said mother shall marry; and do hereby further order the said William Pickford to pay to the said Jane Mason the sum of nine shillings and sixpence, being the costs incurred in obtaining this order, and the sum of ten shillings for the midwife.

"Given under our hands and seals at the Petty Sessions aforesaid.

"CHARLES R. B. LEGH. (L.S.) "JOHN DIXON. (L.S.) "JOHN UPTON GASKELL. (L.S.)" T. W. Saunders showed cause.-This order is good. The first application was made within the twelve months after birth to a justice, and was in time. It is true the summons was not served, but the reason was that the deft. absconded, which was no fault of the prosecutrix. It may be said that the summons might have been nevertheless served at the last place of abode, but the deft. had no such place of abode; at all events it lies on him to show that he had, and his affidavit does not state one. The first summons thus proved abortive from no fault of the prosecutrix, and

Kenealy, contra, was not called on.

By the COURT.-Looking at the terms of the statute, and considering that we cannot look upon the second as any continuation of the first application, this order must be quashed, but without costs.

Order quashed without costs.

Wednesday, May 1.

REG. v. THE INHABITANTS OF AUGHTON. Poor-law--Order of removal-Children of a parent who is irremovable-Fraud upon the parentChildren within the age of nurture-9 & 10 Vict. c. 66, s. 3.

A widow whose parish of settlement was Aughton, but
who was irremovable from Leeds by a five years'
residence, had three children, and being unable to
maintain them, the Leeds board of guardians made
an order for the admission of such three children
into the workhouse. A few weeks afterwards the
overseers of Leeds obtained an order for the re-
moval of these children to Aughton. The object of
the board of guardians in sending them to the work-
house was their removal to their place of settlement.
They were sent there with the consent of their
mother, but she was not informed that the result of
separating her children from her would be their
removal to Aughton. Each of the children at the
time of the order of removal was under seven years
of age:

Held, that under the circumstances the separation of
the children from the mother was a fraud upon her,
and that the order of removal was bad:
Held, also, that as the children were within the age of
nurture, the mother could not consent to their sepa-
ration from her.

This was a case stated by the recorder of Leeds, upon an appeal against an order of removal of Sarah Lambert, aged six years, and of Ann Lambert and Emily Lambert (twins), aged four years, from the township of Leeds to the township of Aughton. The

Q. B.]

REG. v. THE INHABITANTS OF AUGHTON.

[Q. B.

order was confirmed with costs, subject to a case which I as the mother could not by law be removed, the order was stated as follows:

for the removal of her infant children without her was therefore bad. If the court should be of opinion that, under these circumstance, the three pauper children were removable to the township of their settlement without their mother, then the order aforesaid shall stand confirmed. If the court should be of opinion that, under these circumstances, the three pauper children were irremovable to the township of their settlement without their mother, then the order of removal, and the order of sessions confirming the same to be quashed."

By sect. 3 of the 9 & 10 Vict. c. 66, it is enacted, that "no child under the age of sixteen years, whether legitimate or illegitimate, residing in any parish with his or her father or mother, stepfather or stepmother, or reputed father, shall be removed, nor shall any warrant be granted for the removal of such child from such parish, in any case where such father, mother, stepfather, stepmother, or reputed father, may not lawfully be removed from such parish;" and by sect. 1 of the 11 & 12 Vict. c. 111, it is enacted, that whenever any person should have a wife or children having no other settlement than his or her own, such wife and children should be removable from any parish or place from which he or she would be removable notwithstanding any provisions of the said recited Act, and should not be removable from any parish or place from which he or she would not be removable by reason of any provision in the said recited Act."

The paupers are the legitimate children of Mary Lambert, the widow of Edward Lambert, by the said Edward Lambert, who died in June 1855, at Leeds, being then settled in the township of Aughton, in which township the said Mary Lambert, the mother of the three paupers and the said pauper children were also all settled derivatively from the said Edward Lambert. Mary Lambert, the mother of the paupers, went to reside at the township of Leeds with her said husband about seventeen years ago; and at the time of his death, in June 1855, she was irremovable from the said township under the provisions of the 9 & 10 Vict. c. 66, by reason of having resided with her said husband more than five years in the said township. Immediately after the death of her said husband, the said Mary Lambert applied to the overseers of the said township of Leeds for relief, and from that time, for nearly four years, orders were given by the board of guardians for out-of-door relief, such orders being for limited times respectively, and renewed from time to time until April 1859, and such relief was received by Mary Lambert for her children under the said orders. The children all resided with their mother the said Mary Lambert, in the said township of Leeds, who, with the out-door relief given to her, supported herself and her said children by her labour, and who attended properly as a mother to her said children, sending the eldest to the national school at Leeds when she could. In April 1859 the last order for out-door relief to the said Mary Lambert Maule appeared in support of the order of sessions, and her children expired. Being unable to maintain and argued that, as the children were not, at the time her said children the mother of the pauper again ap- of the order of removal, residing with their mother, but plied for relief to the board of guardians a few days were actually in the workhouse, the 3rd section of the after, and received an order for the admission of her 9 & 10 Vict. does not apply, and that they were children into the workhouse. Her three children were rightly removed to their place of settlement: (Rex. v. admitted into the workhouse of the said township of Combs, 25 L. J. 59, M.C.; 5 Ell. & Bl. 892. [BLACKLeeds with the consent of their mother, but she was BURN, J.-The judges in that case put it upon the not informed that the result of separating her footing that the child had been abandoned. CROMPchildren from her would be their removal to TON, J.-What is the use of the 3rd section of the 9 Aughton, the township of their settlement, nor was & 10 Vict. c. 66, if this course is correct? It would, her consent to such removal asked. The ulti- in fact, be to repeal that section.] They cannot effect mate object on the part of the board of guardians of a separation if the mother and children are together. their being taken into the workhouse, was their re- Here the removal to the workhouse was with the moval to their place of settlement. The paupers were consent of the mother. [COCKBURN, C.J.— It was in the workhouse six or seven weeks before the order a fraud upon her, and, I think a very scandalous one. for their removal to Aughton, the township of their She was not aware of the object of removing her chilsettlement was made by two magistrates for the borough dren to the workhouse. The overseers took them there of Leeds, on the 14th May 1859, which is the order not to relieve them, but to send them away. She was now in question, and the recorder found that the order kept in ignorance of their intention.] But there was of removal was taken out by the overseers of Leeds, a separation in fact. [COCKBURN, C.J.-But is this without fraud, unless the above facts necessarily of such a separation as we ought to countenance? The themselves constitute fraud. The mother of the mother finds she cannot maintain her children, and the paupers, being irremovable, still resides in the township overseers say they will take them into the workhouse. of Leeds, and supports herself by her industry. The She thinks that there she will be enabled to see them, three children ordered to be removed to Aughton, the and consents, and they take them away accordplace of their settlement, are all under the age ingly. If they had said to her, "We will take of seven years. It was contended, on the part of them in order to send them to their place of the said apps., first, that as the mother of the paupers settlement," and she had then assented, that may might not lawfully be removed from the resps.' town-have been within the case of Reg. v. Combs.] Neither ship by reason of her status of irremovability, the warrant for the removal of her said three children could not lawfully be granted, and was contrary to the 3rd section of the 9 & 10 Vict. c. 66, and that the order was therefore bad; secondly, it was contended that under the 11 & 12 Vict. c. 111, reciting and amending the 9 & 10 Vict. c. 66, s. 1, the mother of the said paupers being irremovable by reason of the provisions of the said last-mentioned statute, the said paupers could not lawfully be removed from the said township of Leeds, from which their mother was irremovable, and that the order was therefore bad; and thirdly, it was contended that the said paupers being all three within the age of nurture, were irremovable without the mother at common law, and that

assent or dissent is found in the case. [COCKBURN, C. J.-But she does not assent. If they took away the children without telling her they intended to send them away, it was a fraud upon her.] They were bound to take them to the workhouse. [BLACKBURN, J.-But as these children were within the age of nurture, Reg. v. Birmingham, 5 Q.B. 210, shows that she could not consent to their separation. It is the right of the children.]

Overend, Q.C. and T. C. Foster were not called upon.

By the COURT.-The orders must be quashed.
Orders quashed.

Q. B.]

Ex parte MANSERGH-REG. v. JOHN PARKER AND GEORGE PARKER. [C. CAS. R.

Tuesday, June 11. Ex parte MANSERGH, Court-martial-Removal of proceedings by certiorari. A certiorari to remove the proceedings of a courtmartial upon a person in the military service of the Crown, sentencing him to be dismissed from her Majesty's service, will not be granted even on the ground of want of jurisdiction, as it concerns his military status only, which entirely depends upon the will of her Majesty.

ferred to. [BLACKBURN, J.-While he remained in India, Major Mansergh must be still considered as under the command of the commanding officer.] It is competent to the applicant to show by affidavits the defect of jurisdiction, as had been done in the case of Reg. v. Bolton, 1 Q. B. 66, and many other cases. The proceedings are now returned to England, and are in the possession of the Judge Advocate-General, and the applicant has a right to have the proceedingsquashed, if they have been taken without jurisdiction. Lush (with whom was Mundell) moved for a rule [COCKBURN, C.J.-The court has no power to do to show cause why a certiorari should not issue to the away with the sentence; they cannot command her Judge Advocate-General to bring up into this court the Majesty to restore him to her service.] The court has proceedings on the trial of Major Mansergh, by court-power to quash these proceedings, and, when that is martial, at Calcutta, on the 2nd Aug. 1858. It done, it must be presumed that her Majesty will do appeared that Major Mausergh had been convicted what is right. It is the function of this court to conupon a charge of writing a letter to his commanding strue all Acts of Parliament which limit the jurisdicofficer in India, in offensive and insulting language, tion of inferior tribunals, and ought not to allow a and had been sentenced by the court-martial to be dis-judgment to stand which was pronounced without missed from her Majesty's service for that offence. jurisdiction. In Grant v. Gould, 2 H. Bl. 69, the The object of the present application was to bring up court granted a prohibition to prohibit a court-martial the proceedings, with a view to their being quashed, from being held on a person who was not a soldier; upon the ground that the court-martial had no jurisdic- so also in R. v. Morley, Burr. 1040. [COCKBURN, tion to try him, or to pass such a sentence. In 1858, C. J.-In this case Major Mansergh was still a soldier, Major Mansergh was a captain in the 6th Foot regi- and subject to military law. In the case of John ment of the line, serving in India, and on the 25th Anderson, 30 L. J. 129, Q B., this court, in favour of April 1858 an order came for his regiment to go into liberty, had granted a writ of habeas corpus to Canada the interior of India to aid in crushing the rebellion. to bring up the body of a negro upon the authority Major Mansergh went to Calcutta to make arrange- cited, "that by the common law it lies to any part of the ments to go with his regiment, and on the 26th April King's dominions; for the King ought to have an acreported himself to his commanding officer, Colonel count why any of his subjects are imprisoned :" (Bac. Barnes, who was not with the regiment, but at Fort Abr. "Habeas Corpus" (B.) 2.) [BLACKBURN, J. William, as being ready to proceed. Several messages said the applicant might have applied to the court at passed, and Major Mansergh expressed himself Calcutta for a prohibition.] The 17th section of the anxious to go, but at length Colonel Barnes notified Mutiny Act directs the proceedings to be sent over to to him that he had been promoted to be major the Judge Advocate-General in London, and the court of the 15th Regiment of Foot, and that he must ought to direct a certiorari to issue to bring them up hand over his company to another officer. Major in order to their being quashed. [COCKBURN, C.J.-Mansergh had, in fact, been promoted on the 19th There is no precedent for the application, and a further Feb. 1858, but no orders had been given to Colonel difficulty arises from the fact that the applicant's civil Barnes to notify the fact to him, and the effect of the status is not affected.] Re Poe, 5 B. & Ad. 681 was notification was that his services in India were dis-referred to. pensed with, and he was under the necessity of coming home to England, where the 15th Foot regiment then was. Irritated by the conduct of his commanding officer Colonel Barnes, Major Mansergh wrote a letter to him on the 27th April, in which he used the offensive and insulting language complained of. On the 28th April he was arrested upon the charge, and in the month of August he was tried and convicted, and sentenced to be dismissed from the Queen's service. The learned counsel contended that the court-martial in India had no jurisdiction to try Major Mansergh, inasmuch as upon the 25th April he had ceased to be a captain of the 6th Regiment of Foot, and was no longer under the jurisdiction of the Commander-in-Chief in India, who had therefore no authority to direct his trial by a court-martial. The War-office admitted that on the 26th April his connection with the Indian ariny ceased, for, on his arrival in England last year, he wrote to have his expenses home allowed, and received an answer to the effect that, on the 26th April 1858, he had ceased to belong to the Indian establishment. The learned counsel then referred to the Mutiny Act and Articles of War, and contended that the Commanderin-Chief had no power to order a court-martial, except in the case of soldiers actually under his command at the time, and that the court-martial must consist of the superior officers of the accused. In the present case Major Mansergh was not under the com- (Before COCKBURN, C.J., POLLOCK, C.B., MARTIN, B., mand of Lord Clyde at the time, nor were the officers who formed the court-martial his REG. v. JOHN PARKER AND GEORGE PARKER. superior officers. The warrant issued by her Confession-Inducement by accomplice-Presence of Majesty, under which Lord Clyde acted, and which prosecutor and police. gave him power to direct court-martials for the trial of officers and soldiers under his command, was also re

COCKBURN, C.J.-During the discussion the court stated their objections to the application, in order to elicit all which could be said in its favour, or which could throw any light upon a matter of very considerable importance. The result is, that the court entertains no doubt that they ought not to interfere in favour of a person who is in the military service of the Crown. If the civil rights of a person were affected by the judgment of a military tribunal which had exceeded its jurisdiction, this court ought to protect those civil rights in a case where life, or liberty, or property might be concerned. But in the present case the military status of the applicant only was concerned, and that depended entirely upon the will and pleasure of the Crown. It is open to him to apply to her Majesty, who, with the advice of the Judge Advocate-General, might do him justice. His Lordship also thought that as this was a discretionary writ, the court ought not to grant it in this case. The application is, therefore, not well founded, and must be refused.

WIGHTMAN, CROMPTON and BLACKBURN, JJ. severally gave judgment to the same effect.

CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law. Saturday, June 1.

WILLES, J. AND WILDE, B.)

A policeman and the prosecutor went into a room where the prisoners were, and the policeman charged

Government stores-Mark of broad arrow—Possession without knowledge of the mark—9 & 10 Will. 3, c. 41, 8. 2.

On an indictment charging the deft. under the 9 & 10 Will. 3, c. 41, s. 2, with being in possession of naval stores marked with the broad arrow, it is necessary for the prosecution to show affirmatively a possession by the deft. with knowledge that they were marked with the broad arrow.

Case reserved for the opinion of this court:--At the general quarter sessions of the peace for the borough of Plymouth, holden on the 4th April 1861, before Charles Saunders, Esq., the Recorder, William an indictment Sleep was tried and convicted on charging him upon the 2nd section of the statute you that there is a difference of opinion among the judges whether a confession made to a person who has no authority after an inducement held out by that person is receivable. Some of the judges think it is receivable, and others think that it is not so. If I receive it I shall reserve the point for the consideration of the judges, and if they should think that I should not have received it the prisoner will be pardoned. If you have no other evidence I certainly will receive it, but if you have you will consider whether you had better press it.

(c) In Rex v. Pountney the constable who took the prisoner Pountney into custody was called to prove a confessiou made by the prisoner to the landlord of the inn to which he was taken immediately after his apprehension. It appeared that the constable was present, and had the prisoner in his custody when the confession was procured by inducements held out by the innkeeper, and that the constable who was present did not caution the prisoner in any way. Alderson, B. This is a point well worthy of consideration. I have a very strong opinion against its admissibility, but as there are opinions which I am bound to respect opposed to my own, I think I had better receive the evidence, and if it should become necessary I will reserve the point for the consideration of the judges."