was proved to have been given by them to the pauper whilst residing out of their parish, was given by mistake; and my Brother Wightman there observes, that "they could not traverse any specific settlement supposed to have been acknowledged by the relief, as such settlement was not stated in the examinations." It would have been most unjust to preclude their explaining away relief which they admitted was, in fact, given.

WIGHTMAN, J.-I am of the same opinion. With respect to the first point, it is said the Sessions were wrong on two grounds: first, it is said that the entry in the minute book is not general, but special, and that the special terms are such as would indicate that the order of removal to which it related was quashed on the merits. If it followed as a necessary consequence from such a form of entry, that the Sessions are to be taken to have determined the question of settlement, there might be much in the objection; but non constat that it was not quashed on a point of form, and we may treat it as having been quashed generally. Secondly, it is said that the chairman, when the order of Sessions was made, said that it was not on the merits. If that were so, and that had been the only evidence tendered, it would have been very doubtful whether it was properly received; but the question we have to decide is, whether any evidence whatever was admissible. On the other questions, I agree with the rest of the

tices to the binding. The Sessions found that it appeared from the examinations that two Justices had allowed, by signing and sealing, an indenture, which recited an order under 56 Geo. 3. c. 139, for binding the apprentice; but they also held that the examinations did not disclose sufficient legal evidence that such an order had been made: Held, that the Sessions were right in so deciding.

Upon an appeal against an order of two Justices, for the removal of Maria, the wife of William Johns, alias William Smith, a private in the Royal Marines, belonging to Her Majesty's ship Pandora, from the parish of East Stonehouse, to the parish of Milverton, both in the county of Devon, the Sessions quashed the order, subject to the opinion of this Court on the following

CASE.

The examinations, which purported to set up a settlement by apprenticeship of William Johns, in the appellant parish, shewed, in the opinion of the Sessions, sufficient search for the indenture of apprenticeship, so that its loss might be presumed, and secondary evidence of the binding might be given, and the examinations, so far as they are material, with reference to the point in this case, were as follows:—

William Johns said, "I resided with my mother, Thomasine Johns, until I was about ten or twelve years of age, when I was bound out as parish apprentice, by the parish officers of Chipstable, in the county of Somerset, to Robert Besley, a farmer, residing in the parish of Milverton, in the said county of Somerset, to serve him until I attained the age of twenty-one years."

Charles Surrage said, "I am one of the overseers of the poor of the said parish of Chipstable, in the county of Somerset. I produce a book, being a register of all the poor children bound apprentice or assigned. since the 1st day of June 1802 (1), by the overseers of the poor of the parish of Chipstable, in the county of Somerset. At No. 29. of the said book is the record, under date of the 7th day of April 1833, of the

(1) The day on which the 43 Geo. 3. c. 46. came into operation.

H

being at the same time no other evidence that an order was made, and, thereupon, quashed the order of removal. The question for the opinion of this Court was, whether sufficient legal evidence of a parish apprenticeship appeared in the above examinations; if so, then the order of removal was to be confirmed, and the order of Sessions to be quashed; if not, then the order of Sessions was to be confirmed.

Greenwood and W. C. Rowe, in support of the order of Sessions.-The Sessions were right. There was no evidence of any order of Justices for the binding, or, indeed, of the allowance of the indenture. The 1st section of the statute 56 Geo. 3. c. 139. makes an order of two Justices, after inquiry by them, essential before any poor child is bound apprentice by the parish officers. The allowance is a subsequent and distinct act. It is true the case finds that the order was recited in the indenture, but it is equally clear that no indenture was produced at the Sessions; and all the evidence on the subject is set out in the case. In The King v. the Inhabitants of Bawbergh (2), it was held that a parish indenture of apprenticeship, which did not refer to the order of Justices by its date, was wholly void; and the rule as to presuming omnia ritè esse acta, has never been applied for the purpose of giving jurisdiction.

[COLERIDGE, J.-But the jurisdiction is got at independently of the statute, which was passed to restrain the power the overseers had already.]

A new authority to bind out apprentices is given by the statute.

[WIGHTMAN, J.-Suppose, the indenture being lost, a witness was called to give secondary evidence of it, and he remembered everything but the date of the order recited in it?]

[PATTESON, J.-It would be most unreasonable to hold the indenture void because a witness did not remember every word of it.]

Then there is no sort of evidence that the same Justices who ordered, also allowed -The Queen v. the Inhabitants of Ashbur

(2) 2 B. & C. 222.

ton (3), where The King v. Hinckley (4) is referred to.

[COLERIDGE, J.-I do not see how you can apply those cases here. It cannot be inferred that other Justices than those who allowed, made the order.]

[PATTESON, J.-If the indenture was produced, the question whether the order was recited would be one thing; but whether there ever was such an order would be another thing. Is it necessary to prove the truth of the recital, i. e. to produce the order?]

In strictness it would be so; at all events, as against a third party, which the appellant parish is. There is no estoppel as against them.

[PATTESON, J.-There seems to have been no evidence given to account for the non-production of the order, or any search for it.]

The COURT called on

Merivale, contrà, as to this point.-The objection as to the want of search was not taken at the Sessions, nor is it raised by the case; but the case does find a sufficient search for the indenture; and as in practice one is indorsed on the other, it must be taken that the Sessions have found that there was a search for the order. Then, as to the principal question, the Court will not presume that the Magistrates did not do their duty - The King v. the Inhabitants of Whiston (5).

Greenwood and Rowe were then heard in continuation.-No intendment can be made in this case; indeed, the very register which is set out affords no ground for presuming an order. The statute requiring a register to be kept of parish apprentices, (42 Geo. 3. c. 46,) provides, by section 3, that the book or register shall be sufficient evidence of the particulars specified in it. That may make the register evidence of the assent of two Justices; but there the presumption ends. A previous order, under the hands, &c. of two Justices, was not necessary at the time this act of parliament passed, and the register did not contain any

75.

(3) 15 Law J. Rep. (N.S.) M.C. 97.

(4) 1 B. & Ad. 273; s. c. 9 Law J. Rep. M.C.

(5) 4 Ad. & El. 607; s. c. 5 Law J. Rep. (N.s.) M.C. 67.

statement on the subject, and could be no evidence of the compliance with the requisitions of a subsequent statute.

Merivale and Cornish, contrà.

[COLERIDGE, J.-I do not see how any secondary evidence of allowance, under 56 Geo. 3. c. 139, is got at; the register is only evidence of assent under 42 Geo. 3. c. 46.]

That point is not raised in the case. Secondary evidence may be given independently of any statute, and the Sessions must be taken to have been satisfied that the indenture had been duly allowed.

[COLERIDGE, J.-The Sessions do not assist us in drawing a line between what they have presumed and what we are to presume.]

Presumption will be made that those who have a public duty to perform, have performed it rightly-The King v. the Inhabitants of Witney (6), The King v. Whiston, The King v. Hinckley, The Queen v. the Inhabitants of Silkstone (7), The King v. the Inhabitants of Long Buckby (8), Taylor v. Clemson (9).

Cur. adv. vult.

The judgment of the Court was, on a subsequent day, delivered by

LORD DENMAN, C.J.-The question in this case was, whether the examinations disclosed sufficient evidence of the binding of one William Johns, as a parish apprentice. He had been bound, if at all, since the passing of the 56 Geo. 3. c. 139; it was necessary, therefore, to have evidence, not merely of the execution of the indenture, but of the order and the allowance by two Justices, which the statute requires, and of the reference to the order in the indenture, which the statute also requires. Secondary evidence the case finds to have been admissible, and that alone was relied on. The binding had been from Chipstable, a third parish, into Milverton, the appellant parish, and an overseer of the

former parish produced the register of bindings by that parish, which disclosed all the particulars of date, name, age, master, &c. concluding with these words "Magistrates assenting," signed by themselves,-John Halliday, L. St. Aubyn.

This

It was pointed out in argument that that entry was obviously made in obedience to the 42 Geo. 3. c. 46, which requires the register to be kept, and gives the form; the last column of which is headed "Magistrates assenting," with the words underwritten, "to be signed by themselves;" the object of this part of the register being to preserve a record of the particular Justices with whose assent any particular apprentice was bound. entry, therefore, in a case where secondary evidence was admissible, would, on general principles, and without reference to the provisions of the 3rd section of the statute, have been evidence of the fact that these two Justices had assented to the binding; that the book had been produced to them at the time of their assenting; and that they had then signed their assent: for the entry purports to have been made in compliance with the requisitions of the statute; and, therefore, in the case of public functionaries, there would be the ordinary presumption that they had done so.

But it is now sought to carry this presumption much further; and because the Justices appear to have complied with the requisitions of one statute, it is to be inferred that they must have complied with the very special requisitions of another. Because it is proved that they had assented to the binding, which the statute of Elizabeth required, and recorded their assent as the 42nd Geo. 3. required, therefore it is to be presumed that they made an order, under hand and seal, for the binding before it took place; that that was referred to in the indenture, by date, and the names of the two Justices; and that before execution of the indenture by the parties, the same two Justices signed and sealed an allowance thereof. Unless all these things were done, no settlement was gained; and the only ground for presuming them done, is, that two Magistrates assented to the indenture, and entered their names in the register as having done so. Of these two facts the

latter is quite without weight in helping to the inference; and if all these are inferred from the former, it would be carrying the presumption that all things have been rightly done, as required, much further than either reason or authority warrant.

The Sessions have, indeed, found that "it appeared from the examinations that the Justices had allowed, by signing and sealing, an indenture which recited an order;" but they state expressly that this was the whole evidence; and upon the whole they were of opinion that there was not sufficient legal evidence of a parish apprenticeship. They, therefore, leave the question clear for our decision; and we think they were right in the conclusion they drew, and that their order should be confirmed.

Order of Sessions confirmed.

BAIL COURT.
1846.
Jan. 28.
Appeal, Grounds of-Identity-Examin-
ations.

THE QUEEN v. THE JUSTICES
OF STAFFORDSHIRE.

In the examinations on which an order of removal from the township of L. to the parish of C. was founded, M. S. stated that she was the widow of A. S, who was born at C. of parents settled there, as she believed; and J. S. stated that he was an elder brother of A. S, who was born in C. The grounds of appeal alleged that the order, notice of chargeability, and examinations were bad on the faces thereof, and that the examinations contained no legal evidence of the paupers' settlement in C, or of their having come to settle in, or being chargeable to L. At the trial of the appeal the appellants contended that the examinations did not shew that the A. S. mentioned by the widow was the same A. S. mentioned by J. S. The respondents objected that this point was not raised by the grounds of appeal. The Sessions quashed the order on the point raised by the appellants. A rule nisi for a mandamus having been obtained, this Court held that the objection was sufficiently raised by the grounds of appeal, and that the decision of the Justices was final.

On the 11th of March 1846, two Justices of the Peace for the county of Stafford made an order for the removal of Mary Salt, widow, and her seven children, from the township of Leek and Lowe, in the said county, to the parish of Cauldon, in the same county. The examination of the pauper M. Salt stated that she was the widow of Adam Salt, late of Leek, and that he was born at Cauldon, in the county of Stafford, of parents legally settled in the parish of Cauldon as she had been informed and believed. John Salt, an elder brother of Adam, stated, in his examination, that his father and mother had twelve children, all of whom were born in the parish of Cauldon, and that he knew of no act by which his brother Adam had gained a settlement. Notice and grounds of appeal, dated the 28th of May 1846, were sent by the churchwardens and overseers of Cauldon to the overseers of Leek and Lowe. The first ground of appeal, which was the only one which came into question, alleged that the order of removal, and the notice of chargeability, and the examinations whereon. the order was grounded, were respectively defective, and bad on the face thereof, and that the examinations contained no sufficient legal evidence of the said paupers being settled in the parish of Cauldon, or of their having come to settle in, or of being chargeable to the township of Leek and Lowe. At the hearing of the appeal the counsel for the appellants objected that it did not appear in the examinations by words of reference, or otherwise, that the Adam Salt mentioned in the examination of M. Salt, in right of whom she claimed a settlement, was the same person as the Adam Salt, who was alleged in the examination of John Salt to have had a birth settlement in the parish of Cauldon. The counsel for the respondents argued that this objection was not raised by the grounds of appeal, as it was not specifically pointed out; but the Sessions held the objection of the appellants good, quashed the order, and refused to grant a case for the opinion of this Court.

Huddleston (24th of Nov. 1846) obtained a rule nisi for a mandamus, directed to the Justices of Staffordshire, commanding them to enter continuances and hear the appeal.