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RELATING TO

THE POOR LAWS, THE CRIMINAL LAW,

AND OTHER SUBJECTS

CHIEFLY CONNECTED WITH

The Duties and Office of Magistrates,

DECIDED PRINCIPALLY IN

THE COURT OF QUEEN'S BENCH AND THE COURT FOR
CROWN CASES RESERVED,

FROM

MICHAELMAS TERM 1858, TO TRINITY TERM 1859,
BOTH INCLUSIVE.

BY

ROBERT SAWYER, Esq., WILLIAM MILLS, Esq.

AND

FRANCIS RUSSELL, Esq. BARRISTERS-AT-LAW.

FORMING PART. OF

VOL. XXXVII.

NEW SERIES, VOL. XXVIII.

OF

THE LAW JOURNAL REPORTS.

LONDON:

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

PUBLISHED BY EDWARD BRET INCE, 5, QUALITY COURT, CHANCERY LANE.

MDCCCLIX.

REPORTS OF CASES

CHIEFLY CONNECTED WITH

THE DUTIES AND OFFICE OF MAGISTRATES

AND THE ADMINISTRATION OF THE CRIMINAL LAW.

VOL. XXVIII. (NEW SERIES), COMMENCING WITH

MICHAELMAS TERM, 22 VICTORIA.

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Settlement by Apprenticeship-Lost Indenture-Secondary Evidence-Hearsay Evidence-Preliminary Inquiry.

Hearsay evidence is sometimes admissible to satisfy the mind of the Court upon a preliminary inquiry, although the facts proved would not be evidence in the cause.

Therefore, where at the hearing of an appeal against the removal of a pauper it was necessary to prove an apprenticeship, and in order to shew that a proper and reasonable search had been made for the indenture, it was proposed to ask witnesses what inquiries they had made of persons who were supposed to be likely to have it in their possession, and also what answers were given to these inquiries, and the Sessions refused to allow such evidence to be given, this Court held, that such questions and answers were receivable to prove that the search made was reasonable.

Appeal against an order for the removal of Eliza Andrews, widow, and her five children from the parish of St. Mary, in the borough of Bury Saint Edmunds, to the parish of Braintree. The Court of NEW SERIES, XXVIII.-MAG. CAS.

Quarter Sessions confirmed the order, subject to the opinion of this Court upon a CASE stated.

The case, so far as is material, was as follows. The respondents, in their grounds of removal, relied upon a settlement of the pauper in the appellant parish as the widow of Charles Andrews; and at the hearing of the appeal the appellants admitted that settlement as stated in the grounds of removal, and relied upon a subsequent settlement of the said Charles Andrews by apprenticeship in the parish. of Barking. The following were among the facts of which evidence was given :Charles Andrews, the pauper's husband, was the son of Mordecai Andrews and Hannah his wife, and was born in 1799 in the appellant parish, from which time. till 1813 he resided with his parents. The said Charles Andrews was married to the pauper in the respondent parish in June 1828, and he died in the same parish in January 1855. Mordecai, the pauper's husband's father, died in 1813, leaving his wife Hannah and three sons, Joseph (long since deceased), Mordecai and Charles, the pauper's husband, and a daughter Rebecca, him surviving. His widow Hannah continued to reside in Braintree till she died in April 1855, in

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testate, at the age of ninety. Mordecai and Rebecca are now living. In the year 1813 (after his father's death), Charles Andrews, then being of the age of fourteen. years, went to live with Thomas Larkin, who was then residing and carrying on the business of a stone-mason in Barking, the adjoining parish to Braintree, and continued with Larkin till Larkin's death.[The case then stated a number of facts, which it was admitted amounted to good secondary evidence that there had been an apprenticeship of the said Charles Andrews by indenture.]-The appellants then called Rebecca, the sister of the said Charles Andrews, (he himself, his mother, his master and his master's widow being dead), and she stated that she lived with her mother Hannah Andrews up to her death, that she had seen her mother's papers during her mother's life, and at her death they came into her possession: a part of them she destroyed, having first examined them, and there was no indenture among them; the remainder she gave to her nephew when she removed to another house shortly after her mother's death; that Mordecai came and examined all the papers in her possession in June 1857, after she had parted with the above-mentioned portion to her nephew; that she had never searched that portion; that she had never seen an indenture among her mother's papers, and that she had never examined them for the purpose of finding one. Mordecai also stated, that for the purpose of finding the indenture of his brother Charles he examined those of his mother's papers in the possession of his sister Rebecca in June 1857; that he could not find any such indenture; he also stated that for the same purpose he searched some papers handed to him by his son Joseph Edward, but the indenture was not among them; there was no evidence that the papers he so searched were all which Joseph Edward had received from his aunt Rebecca.

It was then proposed to ask this witness whether he had made inquiries of his son Joseph Edward as to the existence of any indenture among the papers he had received from his aunt Rebecca, and what answer the son had made to those inquiries. These questions were objected to by the respondents. Joseph Edward Andrews, who

could have been called, was not called, and no satisfactory reason for not calling him having been given, the Recorder refused to allow the question to be put, and said he was not satisfied that sufficient search had been made for the indenture among the papers in the possession of the said Joseph Edward Andrews. Mr. Holland, the assistant overseer of Braintree, stated that he had made inquiries and ascertained that the executor of Thomas Larkin was one Shearcroft, that Shearcroft had died leaving one Garrett, now resident at Braintree, his executor. It was then proposed to ask this witness whether he had made inquiries of Garrett as to the existence of any indenture of apprenticeship of Charles Andrews, and what answer Garrett had made to those inquiries. These questions were objected to by the respondents. Garrett, who could have been called, was not called to give evidence, and no satisfactory reason being given for his not being called, the learned Recorder refused to allow the questions to be put, and said that he was not satisfied that sufficient search had been made to ascertain whether Larkin had left any papers, or whether the indenture was or was not among them.

The Sessions confirmed the order, subject to the opinion of the Court upon the following questions, that is to say, first, whether upon the facts stated, secondary evidence was admissible to prove that Charles Andrews was apprenticed to Thomas Larkin? Secondly, if admissible, whether sufficient evidence was given to establish that Charles Andrews was apprenticed to Thomas Larkin? Thirdly, whether any of the questions disallowed were improperly disallowed?

If the Court of Queen's Bench should be of opinion in the affirmative on the first question and also on the second, the order of the Magistrates was to be quashed. If in the affirmative on the third question, then the case was to be dealt with as the Court should direct. But if the Court should be of opinion in the negative on the third question and also on the first or the second, then the order of Sessions was to be confirmed.

Power and Bulwer, for the respondents. -The only point to be decided is, whether 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.

To

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. 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 evidence 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."

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[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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