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REPORTS OF CASES
THE DUTIES AND OFFICE OF MAGISTRATES:
MICHAELMAS TERM, 7 WILL. IV.
1836. THE KING V. THE INHABITANTS in Lincolnshire, the Sessions quashed the Nov. 16.
order, subject to the opinion of the Court Poor Law Amendment Act, 4 4 5 Will. 4.
CASE, c. 76—Examination-Evidence.
by which it appeared, that the pauper havThe act of 4 & 5 Will. 4. c. 76. requires ing, subsequently to the 1st of November that the respondent should send a copy of the 1834, become chargeable to the parish of examination of the pauper, on which the Kelvedon, an order of Justices was obtained order of removal was obtained, and provides, for the removal of himself, his wife, and that the respondent shall not be allowed to children, to the parish of Colsterworth, and go into evidence of any other ground of re- in compliance with the 79th section of moval than that which appears on the exa- 4 & 5 Will. 4. c. 76, notice of their being mination :- Held, that where, upon the era- chargeable, and a copy of the order of remination, the pauper stated that his father moval, and a copy of the examination on belonged to the appellant parish, and that which the order of removal was made, was he continued to belong there till his death, sent to the overseers of Colsterworth. The and that he had heard him say he was a cer- examination ran thus :tificated man from the appellant parish, it “I was born at Kelvedon, in the county was competent to the respondents to go into of Essex, where my father then resided, evidence, that the pauper's father gained a but belonged to the parish of Colsterworth settlement in the appellant parish by appren- in Lincolnshire, and continued to belong ticeship, and that he was a certificated man there till his death, as I have heard and from that parish; and the Sessions having believe; and I have also heard him say, that refused to hear such evidence, the case was he was a certificated man from the said sent back to be heard.
parish of Colsterworth in Lincolnshire.
That I have never done any act whereby Upon appeal against an order, by which to gain a settlement in my own right to the James Bird, his wife, and three children, best of my knowledge and belief. That I were removed from the parish of Kelve- have a wife,” &c. don in Essex to the parish of Colsterworth The overseers of Colsterworth, within twenty-one days after the notice of peal, to go into, or give evidence of any chargeability, &c. was
sent them, gave other grounds of removal, or of appeal notice of appeal, and with such notice, a against any order of removal, than those set statement in writing of the grounds of ap- forth in such respective order, examination, peal as directed by the 81st section of or statement as aforesaid.” The question is, the act.
The statement was as follows: what construction the Court will put upon -“ That the father of the
James that proviso. The question was once beBird, never was legally settled in our pa- fore the Court in The King v. the Justices rish of Colsterworth, nor was there ever a of Cornwall (1). certificate granted by our said parish of [COLERIDGE, J.-The question there was Colsterworth, owning the pauper's father as to the sufficiency of the statement by the to be legally settled in our parish of Col- appellants: that is not the question here.] sterworth, as in the examination in this It would appear to have been the intencase is stated ; and take notice, that, at the tion of the act to confine the respondents trial of the appeal, we mean to avail our- to the ground upon which the order of reselves of both or one of the said grounds in moval was made, as stated in the examinasupport of the said appeal.”
tion, in the same way as the appellants are On the appeal coming on to be tried at confined to the ground of appeal, as appears the Essex Easter Sessions, the respondent's by the statement sent with the notice. The counsel proposed to prove a settlement examination merely states that the pauper's gained by the pauper's father in the parish father belonged to the parish of Colsterof Colsterworth by apprenticeship, upon worth, and the pauper had heard him say, which it was objected, that such evidence that he was a certificated man from that could not be received, on the ground, that parish. the respondent parish was not at liberty, [Coleridge, J.-The parish cannot alter under the 81st section of 4 & 5 Will. 4. the language of the pauper, but they may c. 76, to give evidence of any other grounds put the ground of appeal in their own lanof removal than those set forth in the order guage.] of removal and examination, and that The question is, whether it ought not to it was not stated, in the order of removal have been stated on the examination, that or examination, as a ground of removal, the pauper's father had gained a settlement that the pauper's father had acquired a by apprenticeship in the parish of Colstersettlement by apprenticeship in the parish worth; and, as to the difficulty suggested of Colsterworth. The Court decided, that that the parish could not alter the language the respondents were not at liberty to give of the pauper, it was incumbent on the the evidence proposed, and quashed the overseers applying for the order of removal order as above stated.
to inquire more particularly as to the fact, Sir W. W. Follett and Ryland, in sup- how the pauper's father belonged to the port of the order of Sessions. The pre- parish of Colsterworth ; whether he was sent is a question of considerable impor- settled there, and how settled ; whether by tance, as regulating the practice of the Ses
(1) The case of The King v. the Justices of sions under the Poor Law Amendment
Cornwall will be found reporied in 5 Law J. Rep. Act, and turns upon two of the sections (N.S.) M.C. 106. It will not be out of place bere to of the act: the 79th, which requires that observe, that in a case of The King v. the Inhabinotice of chargeability, together with the
tants of Castleton, N. R. Clarke, on the 3rd of
November, moved for a mandamus to Justices to examination on which the order of removal
hear an appeal. In that case, the ground of appeal was obtained, shall be sent with the order
stated was, that the pauper bad subsequently gained to the parish to which the removal is to be a settlement in another parish by hiring and service. made ; and the 81st section, which enacts,
The Sessions thought the notice insufficient in not
stating with whom the hiring and service was, and “ that fourteen days at least before the trial
refused to bear the appeal; and The King v. Corn. of the appeal, the appellants are to send no- wall, as reported in Archbold's Practice, being cited, tice, with a statement of the grounds of
Lord Denman, C.J., said, “ It strikes me that that appeal;" which section also provides, "that
goes a little too far; and I am not disposed to think it shall not be lawful for the respondent or
that the language, as there stated, is right. Your
case, however, goes much further than that take a appellant parish, on the hearing of any ap- rule."
apprenticeship, hiring and service, or what it was sent with the order of removal to other mode, so that it might have appeared the appellant parish. Then, did the reon the examination. If the Court are to spondent parish attempt to travel out of say that this loose and general statement on the ground of removal as it appeared upon the examination, is sufficient to enable the the examination ? In the statement by the removing parish to go into evidence of the appellants of the ground of appeal, the apmeans by which he became settled, no in- pellants say, that the pauper's father never formation is conveyed to the overseers of was settled in the parish of Colsterworth, the appellant parish whatever, and the Court nor was there ever any certificate granted; will not be fulfilling the intention of the so that they understood the ground on act of parliament.
which the order of removal was obtained [COLERIDGE, J.-Suppose, on the exa- to be, that the pauper's father was there mination it had been stated, that the pau- settled, and was a certificated man when per's father was settled in the parish of Col- residing at Kelvedon. sterworth, would you prevent the overseers COLERIDGE, J.—There is a great differof the removing parish from going into any ence in the language of the statute as evidence as to how he was settled ?] applicable to the statement of the grounds
It is apprehended that that would be no of appeal by the appellant, and the sendexamination under the act.
ing of the examination by the respondent Knox, contrà, with whom was C. R. parish. The legislature have taken care Turner, was stopped by the Court. that the appellants should not be preju
diced by any looseness or generality of LORD Denman, C.J.-The act of parlia- statement in the examination, by enactment might have required a statement ing, that no removal shall take place till of the grounds of removal to be sent by after the expiration of twenty-one days the respondent parish, and might have thus after notice of chargeability, and in the thrown upon the respondents the same meantime free access is given to the apstrictness as to that statement, as is by pellants to the pauper ; and, if the genethe act thrown upon the appellants, in the rality of the examination is such as to give statement of the grounds upon which they them but little information, they have an appeal. It has not, however, thought opportunity of obviating that by inquiry proper to do so, and the reason appears more particularly of the pauper himself pretty obvious. The appellants know the as to the nature of his settlement. grounds upon which they appeal; and they
Order quashed. The case to go can state, in their own language, what those
back to Sessions to be heard. grounds are. The order proceeds upon the examination of the pauper, and all that is required of the respondent parish is to send the examination upon which the order was 1836. THE KING V. THE INHABITANTS obtained. All that was required of the Nov. 16. 5 respondents has been done in this case, and they ought to have been permitted to go
Poor Law Amendment Act, 48. 5 Will. 4. into evidence of the settlement.
c. 76.–Appeal, Statement of Grounds. Patteson, J.-I am of the same opinion. Where the ground of appeal was stated to The appellants, in the statement of their be, that the pauper, at the time when he hired ground of appeal, have treated the exami- himself (as stated in the examination ) and benation as conveying to them an intention, fore the completion of the bargain, stipulated on the part of the respondents, to prove a with his master, thai out of his year's service settlement of the pauper's father in the he should be allowed to have two days holidays parish of Colsterworth, and that he was a at Spalding club-feast, in the month of July, certificated man from that parish.
and that the pauper was allowed and did take Williams, J.-I am also of the same and absent himself from his master's service opinion. Whether the examination was during the said two days accordingly:-Held, properly taken is quite immaterial. The that it was not competent for the appellants, examination was taken; and such as it was, under that notice, to prove a bargain for one
day's holiday to go to Holbeach fair, and that served his master under that hiring in the the pauper had such holiday in pursuance of parish of Spalding for the year, and rethe bargain.
ceived his wages; but, upon cross-examina
tion by the attorney for the appellants, Upon appeal against an order, by which he admitted, that, at the time of so hiring George Hobson, his wife and children, were himself to Boston, he bargained for one removed from the parish of Holbeach, in day's holiday to go to Holbeach fair, and the parts of Holland, in the county of Lin- that he had such holiday in pursuance of coln, to the parish of Spalding, in the same the said bargain ; but he denied that he parts and county, the Sessions quashed the made any bargain to have holidays at order, subject to the opinion of this Court Spalding club-feast, and, in fact, he had upon the following
not any such holidays. The attorney for
the respondents contended, that, as the CASE.
holiday for Holbeach fair formed no part The grounds of removal, as set forth in of the grounds of appeal, the appellants the examination of the pauper, a copy of could not go into it. The Court of Quarter which was sent to the appellants, with the Sessions, however, being of opinion that order for his removal, pursuant to the sta- they were not precluded from receiving the tute 4 & 5 Will. 4. c. 76, were as follows, pauper's evidence of the holiday for Hol. viz. “ that about three years ago the pauper
beach fair, and treating that as an excepwas hired by, and did contract and engage tive hiring, quashed the order, subject to to serve John Boston, of the parish of the opinion of the Court of King's Bench Spalding in the said parts and county, whether, by section 81 of the statute 4 & farmer in husbandry, for one year, at the
5 Will. 4. c. 76, and by the grounds of apwages of 8l. 15s., and that he served his peal hereinbefore set forth, they were presaid master under that hiring the whole of cluded from receiving such evidence, and the same year in the said parish of Spald. if they were, the order was to be quashed. ing, and received the said wages.” The Amos, in support of the order of Sessions, notice of appeal, which also contained the submitted, that the Sessions were right in grounds thereof, pursuant to the 81st sec- not considering themselves precluded from tion of the said act, stated such grounds of receiving the pauper's evidence as to the appeal to be as follows, viz.-" Thegrounds holiday for Holbeach fair, which made it a of such appeal are, that, at the time of the case of exceptive hiring. The ground of said pauper, George Hobson, letting him- appeal, which was stated with the notice, self to, and contracting and engaging to was, that it was an exceptive hiring; and, serve, John Boston, of Spalding aforesaid, whether it was so by reason of having holifarmer in husbandry, as mentioned in the days for Spalding club or for Holbeach copy of examination of the accompanying fair, would make no difference. The proof order of removal, and previous to the com- was of an exceptive hiring, and the Court pletion of their said bargain, and before any below were satisfied that it was so,—will earnest and fasten-money was paid, the this Court, then, interfere ? pauper George Hobson did stipulate and agree with John Boston, his intended mas- LORD Denman, C.J.-If they had stated ter, that he should, out of his year's service, only, as a ground of appeal, that the hiring be allowed and have two days' holidays at with John Boston was an exceptive hiring, Spalding club-feast, in the month of July, in all probability that would have been and that the pauper George Hobson was sufficient to have enabled them to go into allowed and did take and absent himself the evidence offered in this case; but they from his master's service during the said particularize the contract with the master, two days accordingly, whereby he did not upon which they ground their objection of gain any settlement in our said parish of its being exceptive, which contract they do Spalding." The pauper proved that he did not prove, but prove something else. It is hire himself for one year to John Boston, easy to suppose a case where the additional to serve him in the parish of Spalding, at statement might be put there, in order to the wages of 81. 155., and that he duly mislead. We think it quite clear, that we
THE KING V. MARSH.
should hold the rule strict, that the appel. this, the foreman signed his name to the lants should confine themselves in their bill as a true bill, although he himself was proof to the ground stated with the notice averse to the finding of it. of appeal. Where the notice states more Mr. Attorney General ( Campbell), on a where less might be sufficient, and that former day in this term, (November 5,) additional statement is incorrect, the notice applied for a rule calling on the prosecutor is insufficient to enable the parties to vary to shew cause why the indictment should that additional statement in proof. With not be quashed. He contended, that it which,
was necessary that the bill should be found Patteson, J., Williams, J., and Cole- by the majority of grand jurymen, and that RIDGE, J. concurring
the direction of the recorder to the foreman, Order quashed. though correct on the presumption that
only twenty-three were sworn, as then
twelve would be a majority, misled the 1836.
foreman, under the circumstances, to put Nov. 21.
his name to the bill, which he would not
otherwise have done. Grand Jury, Finding by-Indictment, Quashing.
[LORD DENMAN, C.J.–The indictment
must be found by twelve; but is there In point of law, no more than twenty-three any authority for saying that it must be persons can be sworn on the grand jury; and found by a majority? The principle on an indictment found by a grand jury, on which l have always understood this to which were sworn twenty-five, was held bad. rest is, that no man shall come to peril,
But the Court will not, after the indictment except on the finding of twojuries of twelve has been removed by the defendant by certio- that he is guilty ; and, moreover, can we rari, and he has pleaded and been convicted, receive the affidavit of the foreman of the quash the indictment, but leave the party to grand jury? Is not the fact which he move in arrest of judgment, bring his writ of states, the counsel of his fellows ?] error in law or in fact, according to whether The oath of the grand juryman, and the the error appears upon the record or not. restriction contained in it, is with regard
to the evidence which was before them, The defendant was indicted at the Dovor and does not go beyond that; besides, the Sessions, in the spring of 1836, for solicit- Judges have held, that where public justice ing and inducing a third party to personate requires a dispensation with the oath of a voter for the election of councillors for secrecy,
may be dispensed with — 4 the borough. That indictment was Christ. Black. 126, n. Now justice does moved by certiorari into this court by the require in this case, that the oath of secrecy defendant, and he pleaded not guilty; and should be dispensed with; but if the Court at the trial, before Lord Abinger, C.B., at should think that the foreman's affidavit is the last Summer Assizes, for the county of not to be taken, the fact of twenty-five Kent, the defendant was convicted of the being sworn on the grand jury, appears offence with which he was charged. on affidavit made by others. The grand
By affidavit, it appeared that on the jury must be limited to the number of grand jury who had found the bill at the twenty-three-Arch. Cr. Law, 56; 2 Burr. Dovor Sessions, twenty-fivegrand jurymen 1088; 4 Blac. 306; and as more than the were sworn; and the foreman of the grand proper number were sworn, the bill found jury also made an affidavit, in which he by that grand jury is a nullity ; because stated that of the grand jury twelve were it is impossible to ascertain whether it was for finding the bill, and twelve were found by twelve of the twenty-three first against it, upon which the foreman applied sworn, or whether the twelve who found to the recorder to know whether it was the bill were made up of the two beyond necessary that the bill should be found by the
number. Then that this Court a majority, and was told by that learned have power to quash an indictment even gentleman, that all that was required was, after judgment, 2 Hawk. P.C. chap. 50, that it should be found by twelve : upon entitled Of avoiding Judgments,' is an au