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The Duties and Office of Magistrates,









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Printed by James Holmos, 4, Took's Court, Chancery Lane.












Quarter Sessions confirmed the order, sub1858. Nov. 8.

ject to the opinion of this Court upon

a case stated. Settlement by Apprenticeship-Lost In

The case, so far as is material, was as denture-Secondary Evidence - Hearsay

follows. The respondents, in their grounds Evidence-Preliminary Inquiry.

of removal, relied upon a settlement of

the pauper in the appellant parish as the Hearsay evidence is sometimes admissible widow of Charles Andrews; and at the to satisfy the mind of the Court upon a pre- hearing of the appeal the appellants adliminary inquiry, although the facts proved mitted that settlement as stated in the would not be evidence in the cause.

grounds of removal, and relied upon a Therefore, where at the hearing of an subsequent settlement of the said Charles appeal against the removal of a pauper it Andrews by apprenticeship in the parish was necessary to prove an apprenticeship, of Barking. The following were among and in order to shew that a proper and the facts of which evidence was given : reasonable search had been made for the Charles Andrews, the pauper's husband, indenture, it was proposed to ask witnesses was the son of Mordecai Andrews and what inquiries they had made of persons who Hannah his wife, and was born in 1799 were supposed to be likely to have it in their in the appellant parish, from which time possession, and also what answers were given till 1813 he resided with his parents. The to these inquiries, and the Sessions refused said Charles Andrews was married to the to allow such evidence to be given, this Court pauper in the respondent parish in June held, that such questions and answers were 1828, and he died in the same parish in receivable to prove that the search made January 1855. Mordecai, the pauper's was reasonable.

husband's father, died in 1813, leaving

his wife Hannah and three sons, Joseph Appeal against an order for the removal (long since deceased), Mordecai and of Eliza Andrews, widow, and her five Charles, the pauper's husband, and a children from the parish of St. Mary, in daughter Rebecca, him surviving. His the borough of Bury Saint Edmunds, to widow Hannah continued to reside in the parish of Braintree. The Court of Braintree till she died in April 1855, inNew SERIES, XXVIII.-Mag. Cas.


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testate, at the age of ninety. Mordecai could have been called, was not called, and and Rebecca are now living. In the year no satisfactory reason for not calling him 1813 (after his father's death), Charles having been given, the Recorder refused Andrews, then being of the age of fourteen to allow the question to be put, and said years, went to live with Thomas Larkin, he was not satisfied that sufficient search who was then residing and carrying on the had been made for the indenture among business of a stone-mason in Barking, the the papers in the possession of the said adjoining parish to Braintree, and con- Joseph Edward Andrews. Mr. Holland, tinued with Larkin till Larkin's death.- the assistant overseer of Braintree, stated [The case then stated a number of facts, that he had made inquiries and ascertained which it was admitted amounted to good that the executor of Thomas Larkin was secondary evidence that there had been an one Shearcroft, that Shearcroft had died apprenticeship of the said Charles Andrews leaving one Garrett, now resident at Brainby indenture.]—The appellants then called tree, his executor. It was then proposed Rebecca, the sister of the said Charles to ask this witness whether he had made Andrews, (he himself, his mother, his inquiries of Garrett as to the existence of master and his master's widow being dead), any indenture of apprenticeship of Charles and she stated that she lived with her Andrews, and what answer Garrett had mother Hannah Andrews up to her death, made to those inquiries. These questions that she had seen her mother's papers were objected to by the respondents. during her mother's life, and at her death Garrett, who could have been called, was they came into her possession : a part of not called to give evidence, and no satisthem she destroyed, having first examined factory reason being given for his not them, and there was no indenture among being called, the learned Recorder refused them; the remainder she gave to her to allow the questions to be put, and said nephew when she removed to another that he was not satisfied that sufficient house shortly after her mother's death ; search had been made to ascertain whether that Mordecai came and examined all the Larkin had left any papers, or whether papers in her possession in June 1857, after the indenture was or was not among them. she had parted with the above-mentioned The Sessions confirmed the order, subject portion to her nephew; that she had never to the opinion of the Court upon the followsearched that portion ; that she had never ing questions, that is to say, first, whether seen an indenture among her mother's upon the facts stated, secondary evidence papers, and that she had never examined was admissible to prove that Charles Anthem for the purpose of finding one. Mor- drews was apprenticed to Thomas Larkin? decai also stated, that for the purpose of Secondly, if admissible, whether sufficient finding the indenture of his brother Charles evidence was given to establish that Charles he examined those of his mother's papers Andrews

was apprenticed to Thomas in the possession of his sister Rebecca in Larkin? Thirdly, whether any of the quesJune 1857; that he could not find any tions disallowed were improperly disalsuch indenture ; he also stated that for lowed ? the same purpose he searched some papers

If the Court of Queen's Bench should handed to him by his son Joseph Edward, be of opinion in the affirmative on the first but the indenture was not among them ; question and also on the second, the order there was no evidence that the papers he of the Magistrates was to be quashed. If so searched were all which Joseph Edward in the affirmative on the third question, had received from his aunt Rebecca.

then the case was to be dealt with as the It was then proposed to ask this witness Court should direct. But if the Court whether he had made inquiries of his son should be of opinion in the negative on Joseph Edward as to the existence of any the third question and also on the first or indenture among the papers he had re- the second, then the order of Sessions was ceived from his aunt Rebecca, and what to be confirmed. answer the son had made to those inquiries. Power and Bulwer, for the respondents. These questions were objected to by the – The only point to be decided is, whether respondents. Joseph Edward Andrews, who the decision of the Recorder, that sufficient

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search had not been made for the indenture of apprenticeship, so as to make secondary evidence admissible, was right or wrong. It is submitted, in the first place, that that decision was perfectly right; and, next, that it was a matter to be decided by him, and that this Court will not review his decision. In order to get rid of the necessity of putting the indenture in evidence, the appellants proposed to prove that it could not be found, and inasmuch as there are generally two originals of such indentures, it was proposed to shew that neither that which would have been taken possession of by Charles Andrews could be found, nor that which would have been kept by the master. To effect the first of these objects, Rebecca and Mordecai were called, but the appellants ought to have called Joseph Edward Andrews, who was the only person who could prove that the indenture was really not among the papers which he had received from Rebecca. To effect the second object they called the assistant overseer, but he could not know anything of the existence or non-existence of documents in the custody of Garrett, and, therefore, his evidence was worthless, and the Recorder very properly refused to admit evidence of the inquiries made of Garrett by the assistant overseer. The evidence of search for the indenture was, therefore, not sufficient. The general rule to be extracted from the cases is, that the person who made the search must be called. The King v. Denio (1) is in point. In that case The King v. Castleton (2) and The King v. Morton (3) are commented on; and it was held, that the declaration of a person who might have been called as a witness could not be given in evidence, and as he was not called, Bayley, J., in delivering the judgment of the Court, said, “ His declarations clearly were not admissible in evidence. There was not sufficient evidence to shew that a bona fide and diligent search was made for the instrument where it was likely to be found, so as to let in parol evidence of the contents." This evidence would be mere hearsay, and is not receivable upon general principles. But, even if it was ad

(1) 7 B. & C. 620.
(2) 6 Term Rep. 236.
(3) 4 M. & S. 48.

missible under some peculiar circumstances, it is impossible for this Court to say that the Recorder, who heard the evi. dence and saw the witnesses, was wrong in the conclusion he came to, that a proper search had not been made. The Queen v. Kenilworth (4) will be relied upon by the appellants, as shewing that a looser rule is applicable to these kinds of trials than to the ordinary class of civil cases ; but there Lord Denman, C.J. said, “But this is a question much fitter for the Court that tries, than for us. They have to determine whether the evidence is satisfactory; whether the search has been made bona fide; whether there has been due diligence, and so on. It is mere waste of time on our part to listen to special pleading upon the subject."

[LORD CAMPBELL, C.J. I see that Coleridge, J., for whose opinion I have a sincere respect, says there, that “the Magistrates and the Sessions were to make up their minds, not whether the document was destroyed or not, but whether there had been a bona fide search, and not mere carelessness and neglect or fraud in not producing." I do not find any other general rule laid down.]

The Court, before whom the case comes on for hearing, are to say whether their consciences are satisfied that sufficient has been proved.

[LORD CAMPBELL, C.J.-But their decision may be reviewed.]

There is no case in which, where the Judge of the inferior court has held that a witness ought to have been called, this Court has held that the decision was wrong. Upon this branch of the case, The Queen v. Saffron Hill (5) is decisive. There it was held, that where the Sessions had decided that sufficient search had not been made for an agreement, to let in secondary evidence of its contents, this Court would not interfere with their decision, unless it could see clearly that the Sessions were wrong. Lord Campbell there said, “I am of opinion that we cannot say that the Sessions were necessarily wrong in holding that the search was insufficient.”


(4) 7 Q.B. Rep. 642 ; s.c. 14 Law J. Rep. (N.s.) M.C. 160.

(5) 1 E. & B.93; s.c. 22 Law J. Rep. (N.s.) M.C. 22.

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