Page images
PDF
EPUB
[blocks in formation]

It appeared that the three overseers who were stated in the extract from the register to have been parties to the indenture were alive, but none of them were called by the respondents. The respondents proved that they had made due search among the parish records for the indenture of apprenticeship, and had there found similar indentures of an earlier and later date, but not the one in question; and they also proved a search for the order.

The appellants objected, that the evidence adduced by the respondents was insufficient to enable the Court of Quarter Sessions to find that George Wakeham had been duly bound a parish apprentice to Mr. Partridge, and they relied on the following grounds:-That there was no sufficient or reasonable evidence to shew that the indenture of apprenticeship had been duly executed; or that the Justices had either made an order for the binding, or allowed the indenture; or that the said indenture recited any order of the Justices, according to the directions of the 56 Geo. 3. c. 139.

The Sessions were of opinion that the evidence set out shewed sufficiently that an indenture of apprenticeship had existed; that it had been preceded by an order, and had been duly allowed by two Justices, and that all the requirements of the 56 Geo. 3. c. 139. had been duly performed. They confirmed the order of removal, subject to

Magistrates assenting (signed by themselves),

H. H. Froude. John Bartard.

the opinion of the Court of Queen's Bench on the above objections, which were raised on behalf of the appellants.

If the Court should think that there was sufficient or reasonable evidence from which the Justices might infer that George Wakeham was duly bound a parish apprentice to Mr. Partridge, the order of removal was to stand. If not, it was to be quashed.

Karslake, for the respondents. - The Sessions were right in the conclusion to which they came, for there was ample evidence before them. It must be presumed that the order which the 56 Geo. 3. c. 139. requires was properly made, and that the Justices did their duty.

[LORD CAMPBELL, C.J.-If the Justices did their duty, they would take care to see that there was an order as required by the statute.]

Yes; and the maxim "omnia præsumuntur rite esse acta" applies.(He was then stopped.)

Coleridge, for the appellants. The question which is asked of the Court is, whether there was sufficient or reasonable evidence for the Justices to infer that George Wakeham was duly bound a parish apprentice. It is submitted that there was not. If it was a question of ordinary apprenticeship, the case would not be arguable; but by section 5. of the 56 Geo. 3. c. 139, the omission of any one of the

matters required by the 1st section avoids the indenture, in the case of a parish apprenticeship. There is no case in which it has been held, that the maxim "omnia præsumuntur rite esse acta" applies to such a case as this; and the appellants contend, that, although when it is proved that an act has been done, the Court will presume, in accordance with that maxim, that all has been rightly done, it will not presume that the act itself has been performed. Therefore, although it is admitted that there was evidence from which the Sessions were justified in finding that there was an indenture of apprenticeship, there was no evidence to justify them in inferring that all the requisites required by the statute had been duly regarded.

[LORD CAMPBELL, C.J.-Suppose the indenture had been produced, and suppose that it duly recited the order, should you contend that proof must be given that the order had been made?]

No there would then be evidence of the order. Section 1. of the 56 Geo. 3. c. 139. provides that "before any child shall be bound apprentice by the overseers," &c., "such child shall be carried before two Justices," &c., "who shall inquire into the propriety of binding such child apprentice to the person or persons to whom it shall be proposed by such overseers to bind such child, and such Justices shall particularly inquire and consider whether such person or persons reside, or have his, her, or their place or places of business within a reasonable distance from the place to which such child shall belong," &c; "and if the father or mother of such child shall be living, and shall reside in or near the place to which such child shall belong, such Justices shall (if they see fit) examine such father or mother, or either of them, and shall particularly inquire as to the place of residence or place of business of the person or persons to whom it shall be proposed to place such child, and the means of communication therewith; and such Justices shall also inquire into the circumstances and character of such person or persons, and if such Justices shall upon such examination and inquiry, think it proper that such child should be bound apprentice to such person or persons, such Justices shall make an order declaring that such

person or persons is or are fit person or persons to whom such child may be properly bound as apprentice, and shall thereupon order that the overseer or overseers of the place to which such child shall belong, shall be at liberty to bind such child apprentice accordingly, which order shall be delivered to such overseer or overseers, as the warrant for binding such child apprentice as aforesaid, and such order shall be referred to by the date thereof, and the names of such Justices in the indenture of apprenticeship of such child; and after such order shall have been made, such Justices shall sign their allowance of such indenture of apprenticeship, before the same shall be executed by any of the other parties thereto," &c.

[HILL, J.-There was evidence that the father and son went before the Justices, and that inquiries were made.]

There does not seem to have been any preliminary inquiry, and the extract from the registry-book will not help the respondents. The Queen v. East Stonehouse (1) is in point; there in a question of the same nature, Lord Denman, C.J., in delivering the judgment of the Court, said, “It was necessary, therefore, to have evidence, not merely of the execution of the indenture, but of the order, and the allowance of two Justices, which the statute requires, and of the reference to the order in the indenture, which the statute also requires." And again, "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 that case was cited as an authority in The Queen v. Macclesfield, referred to in the notes to The Queen v. Stainforth (2).

[ERLE, J.-In cases of parish apprenticeships, I should make the same presumption that essential preliminaries had been complied with, as in other cases. WIGHTMAN, J. — There was much more evidence in this case than in The Queen v. East Stonehouse. LORD CAMPBELL, C.J.You must take it that the thing was started

(1) 10 Q.B. Rep. 230; s. c. 16 Law J. Rep. (N.s.)

M.C. 49.

(2) 11 Ibid. 78; s. c. 17 Law J. Rep. (N.s.) M.C. 25.

and begun, and must you not presume that it was consummated? It was all one continuous transaction.]

Then, there was no evidence that Partridge was a fit man.

Karslake was not heard in reply.

It

LORD CAMPBELL, C.J.-I am of opinion that this order must be confirmed. I must say that, if it was not for the decision in The Queen v. East Stonehouse, I should have thought that without any evidence of the parties appearing before the Justices to be examined, it must have been taken that the order was made as required by the 56 Geo. 3. c. 139. I should have presumed that such an examination had taken place, that the order was made, and that the indenture had been executed. seems that a search was made for the indenture, that none could be found, and that secondary evidence was produced, which was of such a character that it is now admitted, by Mr. Coleridge, that it must be presumed that there was an indenture by which the boy was bound apprentice. Then, I say, that, after that, the maxim" omnia præsumuntur rite esse acta" applies, and also that it must be presumed "ut res magis valeat quam pereat," that the binding was properly done, which would not have been the case unless the boy had been taken before the Justices and inquiry had been made by them, the order made by them, and that order referred to in the indenture. I should have presumed that the Justices would do their duty by seeing that the order was referred to, and if it was so, I should have presumed that the order had been properly made. I should have hesitated before I overruled the case of The Queen v. East Stonehouse (which was a decision pronounced by Judges of great authority) if it had been necessary to do so; but that is not necessary, for there is a broad distinction between that case and the present, because, supposing that it is necessary that evidence of the order should be given, there is here express evidence, from which the inference may be drawn, that there was such an order.-[His Lordship went through the evidence.]-Therefore, there being evidence that the proceedings had been commenced, I hesitate not to say

that there is evidence that they were consummated. Without overruling The Queen v. East Stonehouse, we may say, that there was ample evidence upon which the order may be supported.

WIGHTMAN, J.-In cases of this kind everything must depend upon the weight and strength of the secondary evidence. In The Queen v. East Stonehouse the evidence before the Sessions was not nearly so strong as in this case. Mr. Coleridge says that the maxim "omnia præsumuntur rite esse acta" cannot be referred to, but that seems to have been done in The Queen v. Ashburton (3), which was a case very much like the present. There Patteson, J. said, "We can fairly use the maxim 'omnia præsumuntur rite esse acta' to raise the presumption that the allowance was made before the execution of the indenture." Here there was much more secondary evidence to shew that all was properly done than there was in The Queen v. East Stonehouse, where it was very bare, for it was proved that the son and the father went before the Justices for the express purpose of having the son bound to Partridge, and the son says[The learned Judge read his evidence.]Then, what must be the presumption to be made from this evidence? No reasonable inference can be drawn, except that everything was properly done, and there was evidence to warrant the Justices in coming to the conclusion they have arrived

at.

ERLE, J.-This is a question whether one fact can be inferred from another. Such a question is properly for the tribunal of fact, and the question for a court of law is whether that can possibly be done. In the case of a parochial apprenticeship it may be said that there are five facts required by the 56 Geo. 3. c. 139, and here there was proximate evidence of three of them. Then the well-known maxim " omnia præsumuntur rite esse acta" applies. It is quite clear that George Wakeham was an apprentice, and that he served during his apprenticeship, and then three of the requisites of the statute having been shewn to exist, and there being nothing to negative the existence of the other two, I (3) 8 Q.B. Rep. 871; s. c. 15 Law J. Rep. (N.S.) M.C. 97.

answer the question put to us by the Sessions by saying, you are justified in inferring that George Wakeham was duly bound a parish apprentice to Mr. Partridge. Between this case and The Queen v. East Stonehouse there is a most material distinction. In that case there had been some evidence before the tribunal of fact, and the question was, whether they would infer that there had been a parish apprenticeship; they refused to draw that inference, and said that the facts did not exist; and, as my Brother Hill has suggested to me, in The Queen v. Macclesfield, the Court said, they must understand the question submitted by the case to be whether or not the Sessions were bound to presume an execution by the officers of Stansfield and allowance by Justices of Lancashire, and that the Court could not say they were bound to adopt that conclusion rather than the opposite one.

HILL, J.-I am entirely of the same opinion. It is important to look at the facts of The Queen v. East Stonehouse. There was no evidence of any meeting of the parties before the Justices, or of any inquiry made by the Justices, or of an order having been made, or of anything else beyond the register required by the statute. The Sessions refused to find that there had been an apprenticeship. But here there was evidence of a meeting, of the inquiry made by the Justices, of papers having been drawn up, of binding the apprentice, and of a service under such binding. That being so, is there anything in law to prevent the presumption being made that there was an order duly made and signed? Is it unreasonable to suppose that the deed was drawn up in a perfect form? It would be most unreasonable to infer the contrary. In The Queen v. Macclesfield the Court said, that they must understand the question submitted by the case to be whether the Sessions were bound to presume an execution and allowance, and decided that they could not say they were bound to do so. Thus, no principle of law was affirmed, and without overruling The Queen v. East Stonehouse, I am of opinion that the order of Sessions ought to be confirmed.

Order of Sessions confirmed.

1858. Nov. 22.

THE QUEEN v. COTTON AND
OTHERS, JUSTICES OF ESSEX,
AND COOPE AND OTHERS.

Nuisance-Proceeding before Justices— Local Authority-Area of Jurisdiction— Polluting a Watercourse-18 & 19 Vict. c. 121. s. 12.

The proceeding before Justices given by the 18 & 19 Vict. c. 121. s. 12, for the removal and prevention of nuisances, is confined to cases where the cause and effect of such nuisances exist within the area of the jurisdiction of the local authority.

Therefore, where I, C. & Co., brewers at R, poured their refuse into a river at that place, and the consequential result of that act was the pollution of the water of the river at D, and the local authority for D. proceeded before the Justices for the abatement of the nuisance, it was held, that as the cause arose out of the jurisdiction of the local authority, the Justices had no power to hear and determine the question.

Rule calling upon William Cotton, John Gurney Fry, and Henry Bingley, Esqrs., three of the Justices of the county of Essex, acting for the division of the Half Hundred of Braintree, and upon Octavius Edward Coope and others, to shew cause why the said three Justices should not proceed to hear and determine the information and complaint of H. Thompson on behalf of the Nuisances Removal Committee for the parish of Dagenham, in the county of Essex, made on the 2nd of October last, which came on for hearing before the said Justices on the 18th of October; and why a writ of mandamus should not issue to the said Justices for the purpose aforesaid.

It appeared from an affidavit sworn by the attorney of the Nuisances Removal Committee for the parish of Dagenham, being the local authority for carrying the "Nuisances Removal Act for England, 1855," into execution within the said parish, that he had been instructed by them to apply for a summons against the said Octavius Edward Coope and others, under the 12th section of the act, for an order for the abatement or discontinuance and prohibition of a nuisance. Afterwards, on the 2nd of October 1858, a summons was issued. The summons recited the infor

mation of the said attorney, that "within the said parish of Dagenham the following nuisance exists, namely, that a certain stream or watercourse known as the river Rom, which passes through or along a part of the said parish of Dagenham, is there in so foul and polluted a state as to be a nuisance and injurious to health; and that such nuisance is caused by the act of Octavius Edward Coope," &c. " of Romford, in the said county, brewers, trading under the name of Ind, Coope & Co."

The summons came on for hearing before the Justices named in the rule, and it was objected by the counsel for Ind, Coope & Co., that the Justices had no jurisdiction to hear and determine the said summons and complaint, because Messrs. Ind, Coope & Co. resided and carried on their business in the adjoining parish of Romford, where a local board of health was established. Upon this objection being made, the Justices dismissed the summons on the ground that they had no jurisdiction. It was also sworn that the committee were prepared with evidence to shew that the foul state of the river was in a great degree caused by the acts of Messrs. Ind & Co.

Tindal Atkinson shewed cause against the rule.-It is admitted that Messrs. Ind, Coope & Co. have no premises in the parish of Dagenham; and it is also admitted that the river Rom runs through Romford, and alongside of the parish of Dagenham, and that Messrs. Ind, Coope & Co. pour some refuse into the river at Romford. The rule must be discharged, for the summary jurisdiction given by the act is confined to nuisances committed within the jurisdiction. By section 8. of the 18 & 19 Vict. c. 121, the word "nuisances" shall include "any premises in such a state as to be a nuisance or injurious to health: any pool, ditch, watercourse, privy, urinal, cesspool, drain or ashpit so foul as to be a nuisance or injurious to health: any animal so kept as to be a nuisance or injurious to health," &c. Section 10. is important, and gives power to give notice to the local authority, who may take cognizance of the nuisance after entry, as provided for by section 11. This summons was taken out under section 12, which provides for making complaint before Justices, where a nuisance has been ascer

tained by the local authority to exist. It is quite clear that that applies to a nuisance committed within the jurisdiction. But section 30. is decisive; for it enacts that "the local authority may, within the area of their jurisdiction, direct any proceedings to be taken at law or in equity in cases coming within the purview of this act, and may order proceedings to be taken for the recovery of any penalties, and for the punishment of any persons offending against the provisions of this act, or in relation to appeals under this act, and may order the expenses of all such proceedings to be paid out of the rates or funds administered by them under this act." It is submitted, therefore, that as the nuisance, if there was one, was caused at Romford, and not within the district of the Dagenham Nuisances Committee, there was no jurisdiction, and the Justices were right in dismissing the summons.-He also referred to The Queen v. Warner (1).

Woollett, in support of the rule.-No limit is pointed out by the act, and as the nuisance appears to have existed in the parish of Dagenham, as soon as that was ascertained to be the fact there was jurisdiction, and the Justices were wrong in dismissing the summons. Section 30. only applies to the area within which the nuisance exists, and has no application with regard to the question of where the parties who cause it are resident. If the question turned upon that, then in section 12, where it was said, "If such person cannot be found or ascertained," there ought to have been an addition of the words "within the district." Then section 35. says, that where it shall become necessary to mention or refer to the owner or occupier of any premises, it shall be sufficient to designate him as the owner or occupier of such premises," &c., thus shewing that the act contemplated proceedings being taken against persons who were not owners or occupiers. The Queen v. Warner has no application to this case.

LORD CAMPBELL, C.J.-After hearing all that can be said on both sides of this case, it seems to me that Mr. Atkinson is entitled to the judgment of the Court, for he has shewn that although those per

(1) 27 Law J. Rep. (N.s.) M.C. 144.

« EelmineJätka »