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It appeared that the three overseers the opinion of the Court of Queen's Bench who were stated in the extract from the on the above objections, which were raised register to have been parties to the inden- on behalf of the appellants. ture were alive, but none of them were If the Court should think that there was called by the respondents. The respon- sufficient or reasonable evidence from which dents proved that they had made due the Justices might infer that George Wakesearch among the parish records for the ham was duly bound a parish apprentice indenture of apprenticeship, and had there to Mr. Partridge, the order of removal was found similar indentures of an earlier and to stand. If not, it was to be quashed. later date, but not the one in question; and they also proved a search for the order. Karslake, for the respondents. — The
The appellants objected, that the evi- Sessions were right in the conclusion to dence adduced by the respondents was in- which they came, for there was ample sufficient to enable the Court of Quarter evidence before them.
It must be preSessions to find that George Wakeham had sumed that the order which the 56 Geo. 3. been duly bound a parish apprentice to c. 139. requires was properly made, and Mr. Partridge, and they relied on the that the Justices did their duty. following grounds:-That there was no [LORD CAMPBELL, C.J.-If the Justices sufficient or reasonable evidence to shew did their duty, they would take care to see that the indenture of apprenticeship had that there was an order as required by the been duly executed; or that the Justices statute.] had either made an order for the binding, Yes ; and the maxim "omnia præsuor allowed the indenture; or that the said muntur rite esse acta" applies.—(He was indenture recited any order of the Justices, then stopped.) according to the directions of the 56 Geo. 3. Coleridge, for the appellants. - The c. 139.
question which is asked of the Court is, The Sessions were of opinion that the evi- whether there was sufficient or reasonable dence set out shewed sufficiently that an evidence for the Justices to infer that indenture of apprenticeship had existed; George Wakeham was duly bound a that it had been preceded by an order, and parish apprentice. It issubmitted that there had been duly allowed by two Justices, and was not. If it was a question of ordinary that all the requirements of the 56 Geo. 3. apprenticeship, the case would not be arguc. 139. bad been duly performed. They able; but by section 5. of the 56 Geo. 3. confirmed the order of removal, subject to c. 139, the omission of any one of the
matters required by the 1st section avoids person or persons is or are fit person or the indenture, in the case of a parish ap- persons to whom such child may be proprenticeship. There is no case in which it perly bound as apprentice, and shall therehas been held, that the maxim "omnia præ- upon order that the overseer or overseers sumuntur rile esse acta" applies to such of the place to which such child shall a case as this; and the appellants contend, belong, shall be at liberty to bind such that, although when it is proved that an child apprentice accordingly, which order act has been done, the Court will presume, shall be delivered to such overseer or overin accordance with that maxim, that all seers, as the warrant for binding such has been rightly done, it will not presume child apprentice as aforesaid, and such that the act itself has been performed. order shall be referred to by the date Therefore, although it is admitted that thereof, and the names of such Justices in there was evidence from which the Sessions the indenture of apprenticeship of such were justified in finding that there was child; and after such order shall have been an indenture of apprenticeship, there was made, such Justices shall sign their allowno evidence to justify them in inferring ance of such indenture of apprenticeship, that all the requisites required by the before the same shall be executed by any statute had been duly regarded.
of the other parties thereto," &c. [LORD CAMPBELL, C.J. - Suppose the [Hill, J.—There was evidence that the indenture had been produced, and suppose father and son went before the Justices, that it duly recited the order, should you and that inquiries were made.] contend that proof must be given that the There does not seem to have been any preorder had been made ?]
liminary inquiry, and the extract from the No: there would then be evidence of the registry - book will not help the responorder. Section 1. of the 56 Geo. 3. c. 139. dents. The Queen v. East Stonehouse (1) provides that " before any child shall be is in point; there in a question of the same bound apprentice by the overseers,” &c., nature, Lord Denman, C.J., in delivering “such child shall be carried before two the judgment of the Court, said, " It was Justices," &c., “who shall inquire into the necessary, therefore, to have evidence, not propriety of binding such child apprentice merely of the execution of the indenture, to the person or persons to whom it shall but of the order, and the allowance of be proposed by such overseers to bind such two Justices, which the statute requires, child, and such Justices shall particularly and of the reference to the order in the ininquire and consider whether such person denture, which the statute also requires." or persons reside, or have his, her, or their And again, "the only ground for preplace or places of business within a reason. suming them done, is that two Magistrates able distance from the place to which such assented to the indenture, and entered their child shall belong," &c; "and if the father names in the register as having done so. or mother of such child shall be living, Of these two facts, the latter is quite withand shall reside in or near the place to out weight in helping to the inference.” which such child shall belong, such Jus- And that case was cited as an authority in tices shall (if they see fit) examine such The Queen v. Macclesfield, referred to in father or mother, or either of them, and the notes to The Queen v. Stainforth (2). shall particularly inquire as to the place [Erle, J.-In cases of parish apprenof residence or place of business of the ticeships, I should make the same preperson or persons to whom it shall be sumption that essential preliminaries had proposed to place such child, and the means been complied with, as in other cases. of communication therewith ; and such WIGHTMAN, J. — There was much more Justices shall also inquire into the circum- evidence in this case than in The Queen v. stances and character of such person or per- East Stonehouse. LORD CAMPBELL, C.J.sons, and if such Justices shall upon such You must take it that the thing was started examination and inquiry, think it proper that such child should be bound appren
(1) 10 Q.B. Rep. 230; s. c. 16 Law J. Rep. (s.s.)
M.C. 49. tice to such person or persons, such Justices
(2) 11 Ibid. 78; s.c. 17 Law J. Rep. (x.s.) shall make an order declaring that such 1.C. 25.
and begun, and must you not presume that that there is evidence that they were it was consummated ? It was all one con- consummated. Without overruling The tinuous transaction.]
Queen v. East Stonehouse, we may say, Then, there was no evidence that Part- that there was ample evidence upon which ridge was a fit man.
the order may be supported. Karslake was not heard in reply.
WIGHTMAN, J.-In cases of this kind
everything must depend upon the weight LORD CAMPBELL, C.J.-I am of opinion and strength of the secondary evidence. that this order must be confirmed. I must In The Queen v. East Stonehouse the evisay that, if it was not for the decision in dence before the Sessions was not nearly The Queen v. East Stonehouse, I should so strong as in this case. Mr. Coleridge have thought that without any evidence says that the maxim "omnia præsumuntur of the parties appearing before the Justices rile esse acta" cannot be referred to, but to be examined, it must have been taken that seems to have been done in The that the order was made as required by Queen v. Ashburton (3), which was a case the 56 Geo, 3. c. 139. I should have very much like the present. There Patpresumed that such an examination bad teson, J. said, “We can fairly use the taken place, that the order was made, and maxim omnia præsumuntur rite that the indenture had been executed. It acta' to raise the presumption that the seems that a search was made for the allowance was made before the execution indenture, that none could be found, and of the indenture." Here there was much that secondary evidence was produced, more secondary evidence to shew that which was of such a character that it is all was properly done than there was in now admitted, by Mr. Coleridge, that it The Queen v. East Stonehouse, where it must be presumed that there was an inden- was very bare, for it was proved that the ture by which the boy was bound appren- son and the father went before the Justices tice. Then, I say, that, after that, the for the express purpose of having the son maxim“ omnia præsumuntur rite esse bound to Partridge, and the son saysacta" applies, and also that it must be [The learned Judge read his evidence. ]presumed " ut res magis valeat quam
Then, what must be the presumption to pereal,” that the binding was properly be made from this evidence ? No reasondone, which would not have been the case able inference can be drawn, except that unless the boy had been taken before the everything was properly done, and there Justices and inquiry had been made by was evidence to warrant the Justices in them, the order made by them, and that coming to the conclusion they have arrived order referred to in the indenture. I should at. have presumed that the Justices would do ERLE, J.—This is a question whether their duty by seeing that the order was one fact can be inferred from another. referred to, and if it was so, I should have Such a question is properly for the tribunal presumed that the order had been properly of fact, and the question for a court of law made, I should have hesitated before I is whether that can possibly be done. In overruled the case of The Queen v. East the case of a parochial apprenticeship it may Stonehouse (which was
a decision pro- be said that there are five facts required nounced by Judges of great authority) if by the 56 Geo. 3. c. 139, and here there it had been necessary to do so; but that was proximate evidence of three of them. is not necessary, for there is a broad dis- Then the well-known maxim“ omnia tinction between that case and the present, præsumuntur rite esse acta" applies. because, supposing that it is necessary is quite clear that George Wakeham was that evidence of the order should be given, an apprentice, and that he served during there is here express evidence, from which his apprenticeship, and then three of the the inference may be drawn, that there requisites of the statute having been shewn was such an order.-[His Lordship went to exist, and there being nothing to negathrough the evidence.]_Therefore, there tive the existence of the other two, I being evidence that the proceedings had
(3) 8 Q.B. Rep. 871; s.c. 15 Law J. Rep. (n.s.) been commenced, I hesitate not to say M.C. 97.
answer the question put to us by the
THE QUEEN V. COTTON AND
1858. Sessions by saying, you are justified in
OTHERS, JUSTICES OF ESSEX, inferring that George Wakeham was duly
AND COOPE AND OTHERS. bound a parish apprentice to Mr. Part
Nuisance-Proceeding before Justicesridge. Between this case and The Queen v. East Stonehouse there is a most mate
Local Authority-Area of Jurisdiction
Polluting a Watercourse-18 & 19 Vict. rial distinction. In that case there had
c. 121. s. 12. been some evidence before the tribunal of fact, and the question was, whether they The proceeding before Justiees given by would infer that there had been a parish the 18 & 19 Vict. c. 121. s. 12, for the apprenticeship; they refused to draw that removal and prevention of nuisances, is coninference, and said that the facts did not fined to cases where the cause and effect of exist; and, as my Brother Hill has sug- such nuisances exist within the area of the gested to me, in The Queen v. Maccles. jurisdiction of the local authority. field, the Court said, they must understand Therefore, where I, C. & Co., brewers the question submitted by the case to be at R, poured their refuse into a river at whether or not the Sessions were bound to that place, and the consequential result of presume an execution by the officers of that act was the pollution of the water of the Stansfield and allowance by Justices of river at D, and the local authority for D. proLancashire, and that the Court could not ceeded before the Justices for the abatement say they were bound to adopt that conclu- of the nuisance, it was held, that as the cause sion rather than the opposite one.
arose out of the jurisdiction of the local Hill, J.-I am entirely of the same authority, the Justices had no power to hear opinion. It is important to look at the and delermine the question. facts of The Queen v. East Stonehouse. There was no evidence of any meeting of Rule calling upon William Cotton, John the parties before the Justices, or of any Gurney Fry, and Henry Bingley, Esqrs., inquiry made by the Justices, or of an three of the Justices of the county of Essex, order having been made, or of anything acting for the division of the Half Hunelse beyond the register required by the dred of Braintree, and upon Octavius Edstatute. The Sessions refused to find that ward Coope and others, to shew cause why there had been an apprenticeship. But the said three Justices should not proceed here there was evidence of a meeting, of to hear and determine the information and the inquiry made by the Justices, of papers complaint of H. Thompson on behalf of having been drawn up, of binding the the Nuisances Removal Committee for the apprentice, and of a service under such parish of Dagenham, in the county of binding. That being so, is there anything Essex, made on the 2nd of October last, in law to prevent the presumption being which came on for hearing before the said made that there was an order duly made Justices on the 18th of October; and why and signed ? Is it unreasonable to suppose a writ of mandamus should not issue to the that the deed was drawn up in a perfect
said Justices for the purpose aforesaid. form ? It would be most unreasonable to It appeared from an affidavit sworn by infer the contrary. In The Queen v. Mac- the attorney of the Nuisances Removal clesfield the Court said, that they must Committee for the parish of Dagenham, understand the question submitted by the being the local authority for carrying the case to be whether the Sessions were bound “Nuisances Removal Act for England, to presume an execution and allowance, 1855," into execution within the said and decided that they could not say they parish, that he had been instructed by them were bound to do so. Thus, no principle to apply for a summons against the said of law was affirmed, and without overruling Octavius Edward Coope and others, under The Queen v. East Stonehouse, I am of the 12th section of the act, for an order for opinion that the order of Sessions ought the abatement or discontinuance and proto be confirmed.
hibition of a nuisance. Afterwards, on Order of Sessions confirmed. the 2nd of October 1858, a summons was
issued. The summons recited the infor
mation of the said attorney, that “within tained by the local authority to exist. It is the said parish of Dagenham the following quite clear that that applies to a nuisance nuisance exists, namely, that a certain committed within the jurisdiction. But stream or watercourse known as the river section 30. is decisive ; for it enacts that Rom, which passes through or along a part "the local authority may, within the area of the said parish of Dagenham, is there in of their jurisdiction, direct any proceedso foul and polluted a state as to be a ings to be taken at law or in equity in nuisance and injurious to health; and that cases coming within the purview of this such nuisance is caused by the act of Oc- act, and may order proceedings to be taken tavius Edward Coope,” &c. “ of Romford, for the recovery of any penalties, and for in the said county, brewers, trading under the punishment of any persons offending the name of Ind, Coope & Co."
against the provisions of this act, or in The summons came on for hearing before relation to appeals under this act, and may the Justices named in the rule, and it was order the expenses of all such proceedobjected by the counsel for Ind, Coope & ings to be paid out of the rates or funds Co., that the Justices had no jurisdiction administered by them under this act.” It to hear and determine the said summons is submitted, therefore, that as the nuiand complaint, because Messrs. Ind, Coope sance, if there was one, was caused at & Co. resided and carried on their business Romford, and not within the district of in the adjoining parish of Romford, where the Dagenham Nuisances Committee, there a local board of health was established. was no jurisdiction, and the Justices were Upon this objection being made, the Jus- right in dismissing the summons.-He tices dismissed the summons on the ground also referred to The Queen v. Warner (1). that they had no jurisdiction. It was also Woollett, in support of the rule.- No sworn that the committee were prepared limit is pointed out by the act, and as the with evidence to shew that the foul state nuisance appears to have existed in the of the river was in a great degree caused parish of Dagenham, as soon as that was by the acts of Messrs. Ind & Co.
ascertained to be the fact there was juris
diction, and the Justices were wrong in T'indal Alkinson shewed cause against dismissing the summons. Section 30. only the rule.-It is admitted that Messrs. applies to the area within which the nuiInd, Coope & Co. have no premises in sance exists, and has no application with the parish of Dagenham; and it is also ad- regard to the question of where the parties mitted that the river Rom runs through who cause it are resident. If the question Romford, and alongside of the parish of turned upon that, then in section 12, where Dagenham, and that Messrs. Ind, Coope & it was said, “If such person cannot be Co. pour some refuse into the river at Rom- found or ascertained," there ought to have ford. The rule must be discharged, for the been an addition of the words " within the summary jurisdiction given by the act is district." Then section 35. says, that confined to nuisances committed within the where “it shall become necessary to menjurisdiction. By section 8. of the 18 & 19 tion or refer to the owner or occupier of Vict. c. 121, the word "nuisances” shall any premises, it shall be sufficient to desiginclude “any premises in such a state as to nate him as the owner or occupier of such be a nuisance or injurious to health : any premises,” &c., thus shewing that the act pool, ditch, watercourse, privy, urinal, contemplated proceedings being taken cesspool, drain or ashpit so foul as to be against persons who were not owners or a nuisance or injurious to health : any occupiers. The Queen v. Warner has no animal so kept as to be a nuisance or in- application to this case. jurious to health,” &c. Section 10. is important, and gives power to give notice LORD CAMPBELL, C.J.-After hearing to the local authority, who may take cog- all that can be said on both sides of this nizance of the nuisance after entry, as case, it seems to me that Mr. Atkinson provided for by section 11. This sum- is entitled to the judgment of the Court, mons was taken out under section 12, for he has shewn that although those perwhich provides for making complaint before Justices, where a nuisance has been ascer- (1) 27 Law J. Rep. (N.s.) M.C. 144.