ABSENCE FOR LESS THAN SEVEN YEARS: See PRESUMPTION. ADMISSIBILITY OF DYING DECLARATION: See EVIDENCE. 1. APPEAL UNDER 20 & 21 VICT. c. 43: See FRIENDLY SOCIETY. 2. APPLICATION OF PENALTIES: See BOROUGH JUSTICES. APPOINTMENT OF SPECIAL CONSTABLES: See SPECIAL CONSTABLES. APPORTIONMENT OF POOR-RATE: See POORRATE, 1. ASSAULT: See MISDEMEANOUR. BIGAMY: See PRESUMPTION. BOROUGH JUSTICES-Application of Penalties -Separate Commission of the Peace-Construction of Statute-Preamble restraining Enactment-11 & 12 Vict. c. 43, s. 319 Geo. 4, c. 61, 8. 26-24 & 25 Vict. c. 75, 8. 4.] Where justices of a borough, which has a separate commission of the peace, but not a separate court of quarter sessions, in the exercise of their summary jurisdiction, impose penalties for offences against the general law, they act for the county, and the penalties must, under 11 & 12 Vict. c. 43, s. 31, be paid over by their clerk to the treasurer of the county or place to the quarter sessions of which the appeal from their decision lies; and it makes no difference that the borough has a separate commission of the peace. The 4th section of 24 & 25 Vict. c. 75, which declares that in the Alehouse Licensing Act 9 Geo. 4, c. 61) the words "county or place" include any borough having a separate commission of the peace, though not a separate court of quarter sessions, only applies to the power of granting and withdrawing licences contained in that Act, and does not affect the application of penalties fixed by its 26th section. WINN v. MOSSMAN 1. BREAD, Sale of, otherwise than by WeightBread" usually sold" as French or Fancy Bread-6 & 7 Wm. 4, c. 37, s. 4-3 Geo. 4, c. cvi.-1&2 Vict. c. 28.] By 6&7 Wm. 4, c. 37, s. 4, any baker or seller of bread, who shall sell or cause to be sold bread in any 108 other manner than by weight, is subject to penalties, provided that nothing in the Act shall extend to prevent a baker or seller of bread from selling bread usually sold under the denomination of French or fancy bread without previously weighing the same:Held (by Lush and Hayes, JJ.; Hannen, J., dissenting), that bread, which was usually sold as fancy bread at the time of the passing of the Act (1836, but was not usually sold as fancy bread at the time of the sale, was not within the proviso. 2. BREAD-Sale of, otherwise than by Weight— 6 & 7 Wm. 4, c. 37, s. 4.] By 6 & 7 Wm. 4, c. 37, s. 4, any baker or seller of bread, who shall sell bread in any other manner than by weight, is subject to penalties, provided that nothing in the Act shall extend to prevent a a baker or seller of bread from selling bread usually sold under the denomination of French or fancy bread without having previously weighed the same. On an information for contravening the above section, it was proved that a purchaser went into a baker's shop and asked for a 4 lb. loaf; a loaf was handed to him by the baker, which turned out substantially deficient in weight. The purchaser did not ask to have the loaf weighed, and there was no evidence as to whether the loaf had ever been weighed or not. The baker contended that the loaf was fancy bread. The justices having convicted the baker :Held, that the customer having asked for bread by weight, the baker was bound to sell by weight, whether the bread was ordinary or fancy bread; and though he was not bound to weigh in the presence of the customer, unless requested to do so, he was bound to weigh at some time or other, and that, as the loaf was substantially deficient in weight, it must be taken, as against the defendant, that he had never weighed it; and the conviction was therefore right. THE QUEEN V. KENNETT; THE SAME V. CASES: GREAT EASTERN RAILWAY v. HAUGHLEY (Law Rep. 1 Q. B. 666), followed. See POOR-RATE. 3. HORNBY V. CLOSE (Law Rep. 2 Q. B. 153), followed: See FRIENDLY SOCIETY. 1. ENTRY AGAINST PROPRIETARY INTEREST: See EVIDENCE.-2. EVIDENCE-Admissibility of dying declaration -"No present hope of recovery."] On a trial for murder a written declaration of the deceased was put in evidence for the prosecution. The declaration was made on oath to a magistrates' clerk, about thirteen hours before death. The clerk asked the deceased before he took down her statement, whether she felt she was likely to die? She said, "I think so, from the shortness of my breath." Her breath was then extremely short. The clerk said, "Is it with the fear of death before you that you make these statements, and have you any present hope of your recovery?" She said, "None." The clerk then wrote out her statement, and added to it the above conversation, in the form of a statement by the deceased, but he omitted the word "present" before "hope." He then read over to the deceased what he had written, and she then added the words "at present" before "hope," and signed the declaration. Held, that the statement was not admissible in evidence, as it did not appear to have been made under a settled hopeless expectation of death, inasmuch as the deceased had expressly qualified the words "no hope," by inserting before them the words "at present." THE QUEEN V. JENKINS PAGE 57 Payment of the Rent-Presumption of Payment from Undisturbed Occupation.] A declaratton or written entry by a deceased person when occupier of a house that he was tenant at so much rent, and had paid it, is admissible evidence, as a declaration against proprietary interest, to prove the fact of the payment as well as of the tenancy, and so to shew that the deceased had acquired a settlement, under 6 Geo. 4, c. 57, s. 2, by renting a tenement. Quære, whether undisturbed occupation for four years by a person proved to be a tenant at a rent, is not presumptive evidence that the rent has been paid. THE QUEEN . THE GOVERNORS AND 3. EVIDENCE: See PUBLIC-HOUSE. was: 1. FRIENDLY SOCIETY- Enforcing RulesTrade Union, Illegality of-18 & 19 Vict. c. 63, 88. 9, 24, 44.] Information under ss. 24 and 44 of 18 & 19 Vict. c. 63, against an officer of a friendly society at Bradford, charging him with having misappropriated 401. of the money of the society. Most of the rules of the society were legitimate rules of a friendly society; but rule 18, s. 6, Any officer being discharged from employment for holding office, if he sign the vacant book each day, shall be paid at the rate of wages he was receiving when discharged, such remuneration to continue till he receive employment." Sect. 7; "Any free or non-free member or members leaving his or their employment under circumstances satisfactory to the branch or executive council shall be entitled to the sum of 158. per week." Sect. 9: "Any member refusing work from private objections, unless he can shew sufficient reason to a committee of a majority of the members at the next branch meeting, shall be suspended from donation until after he has been employed." Rule 25, s. 2: "In the event of an application to the executive committee from other trades for assistance, the general society shall obtain information respecting the same, and on the executive committee being satisfied as to the genuineness of the case, shall grant such assistance as the state of the funds warrants, or the case may, in their opinion, deserve." Rule 31, s. 1: "There shall be an equalization every twelve months (ending with the last meeting night of December) of that portion of the funds of the society which has not been personally invested, such equalization to be in proportion to the number of members in each branch." It was stated in evidence by one of the members: "In case of sickness 128. per week is allowed; when drawn out of shop, or turned off for being member of society, full wages or 158. is allowed. In case of long strike at a particular place, and funds exhausted, the members would not contribute, except annually to an equalization fund. We have monthly reports. Strikes are reported. Members of our society would not be allowed to go to places where there are strikes if we can prevent them. We would give a member 21. or 31. PAGE 70 to send him somewhere else. If he were out of work at Bradford, rather than a man should go to Keighley (if a strike was on), we would grant money to send him a thousand miles another way. We can pay this money at our discretion. We would send men to Halifax or Leeds, pay their railway fares, and keep them on, if it should be a case satisfactory to the branch. The executive council can give money to strikes on any trade. Any sensible man can see from our monthly report where there are strikes, and where to avoid. If I am on strike, or we draw men out, and money is paid to me or them by the society, all such payments are trade privileges, and justified by the rules. Our society has nothing to do with ordering work to be done by the piece." The justices dismissed the information, on the ground that the rules of the society, as shewn by the evidence, were illegal and in restraint of trade, and that the society was not within 18 & 19 Vict. c. 63, s. 44:Held, by Cockburn, C.J., and Mellor, J., that the evidence shewed that the rules, in practice, are applied so as to render the funds of the society available for the purpose of supporting strikes, by allowing sums of money to workmen wanting employ, in order to prevent them from seeking work in districts where men are on strike, and also by giving assistance to other branch associations in whose districts strikes are going on; that these purposes are not of a friendly society, but of a trade union, and such as are illegal as being in restraint of trade, according to Hornby v. Close (Law Rep. 2 Q.B. 153); and that the justices were right. By Hannen and Hayes, JJ., that strikes are not necessarily illegal; and that there was nothing in the evidence to shew that the funds of the society had ever been applied to the support of illegal strikes; that no obligations in restraint of trade were imposed by the rules, and that the society was not shewn to be established for an illegal purpose; and that the decision of the justices was wrong. FARRER V. CLOSE.. 2. FRIENDLY SOCIETY-Construction of Rules -Finality of Decision of Arbitrators or Justices-Appeal under 20 & 21 Vict. c. 43.] No appeal lies against a decision of a magistrate under s. 5 of the Friendly Societies Act, 21 & 22 Vict. c. 101, notwithstanding the general words of 20 & 21 Vict. c. 43, s. 2, that, "after the hearing and determination by a justice or justices of any information or complaint which he or they have power to determine in a summary way by any law now in force or hereafter to be made," either party, if dissatisfied with the decision, may demand a case for the opinion of a superior court,-the persons selected by the rules of the society to settle all disputes between the society and its members being, whether justices or other referees, to be regarded as arbitrators, whose decision is to be final and conclusive. Reg v. Lambarde (Law Rep. 1 Q.B. 388) overruled. CALLAGHAN . DOLWIN PAGE 87 98 FINALITY OF DECISION OF ARBITRATORS OR JUSTICES: See FRIENDLY SOCIETY. 2. FRENCH OR FANCY BREAD: See BREAD. 1,2. GAME-Searching on a Highway—25 & 26 Vict. c. 114, 8. 2.] By 25 & 26 Vict. c. 114, s. 2, it is enacted that it shall be lawful for any constable in any highway, street, or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in pursuit of game, and having in his possession any game unlawfully obtained, or any guns, nets, or engines used for taking game, and should there be found any game or any such article or thing as aforesaid upon such person, to seize and detain such game, article, or thing, and such constable shall in such case apply for a summons citing such person to appear before two justices; and if such person shall have obtained such game by unlawfully going on land in pursuit of game, or shall have used any such article or thing as aforesaid for taking game, such person shall pay a penalty, and shall forfeit such game, guns, nets, &c. :-Held, that in order to justify a conviction under this section it is necessary that game or instruments for taking game should be found on the accused in a highway. It is not sufficient that the accused should be seen in a highway and followed, and game found on him elsewhere:-Semble, it is also necessary that the game or instruments for killing or taking game should be detained and taken from the accused in the highway, in order to give magistrates jurisdiction to convict for the offence. HIGHWAY-Highway Act, 1864 (27 & 28 Vict. c. 101, s. 25-Cattle lying about a Highway - Right of Pasturage.] By 27 & 28 Vict. c. 101, s. 25, if any horse, ox, &c., is found straying on or lying about any highway, or across any part, or by the sides thereof, the owner shall be liable to pay a penalty not exceeding 5s. for each animal, provided that nothing in the Act shall be deemed to extend to take away any right of pasturage which may exist on the sides of any highway-Held, that the owner of cattle found straying on the metalled part of a highway was liable to a penalty, notwithstanding PAGE 102 105 66 MISDEMEANOUR-Necessarily including lesser Misdemeanour-Indictment for "Unlawfully and Maliciously Wounding" and for Unlawfully and Maliciously inflicting grievous bodily harm-Verdict "Guilty of an Assault."] An indictment charged the prisoner in the first count with "unlawfully and maliciously wounding." and in the second count, with "unlawfully and maliciously inflicting grievous bodily harm." The jury found the prisoner guilty of an assault:-Held, that the prisoner could be properly convicted of an assault on the indictment, as the offences charged were misdemeanours, and each of them necessarily included the lesser misdemeanour of assault. THE QUEEN v. TAYLOR SPECIAL CONSTABLES: See SPECIAL CONSTABLES. PENALTIES, APPLICATION OF: See BOROUGH JUSTICES. PLYING FOR HIRE: See HACKNEY CARRIAGE, POACHING: See GAME. 1. POOR-Irremoveability of Pauper-“Union" -4 & 5 Wm. 4. c. 76, s. 109-24 & 25 Vict. c. 55, 88. 1, 12.] By 9 & 10 Vict. c. 66, s. 1, no person shall be removed from any parish in which he shall have resided for five years. By 24 & 25 Vict. c. 55, s. 1, and 28 & 29 Vict. c. 79, s. 8, residence in any part of a union is to have the same effect as à residence in a parish, and the period of residence is reduced to one year. By s. 12 of 24 & 25 Vict. c. 55, the words used in that Act are to be construed as in 4 & 5 Wm. 4, c. 76; and by s. 109 of the latter Act "union" is to include, amongst others, "any number of parishes incorporated for the relief or maintenance of the poor under any local Act." By a local Act certain townships, each separately maintaining its own poor, and several parishes, were incorporated into a united district for the purpose of maintaining a house of industry for the poor of the whole district, under a board of PAGE 66 60 directors. Each parish or township had the separate care of, and paid for the maintenance of, its own poor in the house, under the management of the directors; but each contributed according to a fixed proportion to the general costs of the maintenance of the house. The outdoor relief was left in the hands of the parish officers :-Held, that the united district was a union within the meaning of 24 & 25 Vict. c. 55, s. 1, and 5 & 6 Wm. 4, c. 76, s. 109; and that an aggregate residence of one year in two of the townships rendered a pauper irremoveable. THE MACHYNLLETH UNION . THE 2. POOR: See EVIDENCE. 2. 1. POOR-RATE-Apportionment under 17 Geo. 2, c. 38, 8. 12.] By s. 12 of 17 Geo. 2, c. 38, where any person shall come into or occupy any house, &c., out of which any other person assessed to any poor-rate shall be removed, or which at the time of making the rate was empty or unoccupied, every person so removing from and every person so coming into or occupying the same shall be liable to pay such rate, in proportion to the time that such person occupied the same respectively. A poor-rate for eleven months having been made on the appellant on the 25th of October, 1866, in respect of a house which he was then occupying, he went out of occupation on the 8th of Novem ber following the house remained unoccupied till the 10th of May, 1867, when a new tenant entered:-Held, that the appellant was liable to pay to the rate for the time the house remained unoccupied as well as for the fourteen days during which he occupied it. 2. 3. 4. EDWARDS v. THE OVERSEERS OF RUSH Non-rateability of Iron Mines -43 Eliz. c. 2, 8. 1.] Iron mines are not rateable to the poor-rate under 43 Eliz. c. 2, s. 1, coal mines being the only mines mentioned in the statute. CRAWSHAY V. MORGAN.. Railway-Contributive Value.] The E. V. Railway runs through the parish of L., and forms a junction with the appellants' railway, who occupy the E. V. Railway at a fixed rent. On appeal against a poor-rate in the parish of L.:-Held, that the case was governed by Great Eastern Railway Company v. Haughley (Law Rep. 1 Q. B. 666), and that the appellants were to be rated only in respect of the profits which the E. V. Railway earned within the parish of L., and that the value of the traffic contributed by the E. V. Railway to the appellants' main line of railway ought not to be taken in consideration, in estimating the amount of the rate in the parish of L. PAGE 75 72 87 |