lent to ratione tenure. I think not, for the reasons which my THE KING Lord has so pointedly given.

LE BLANC, J.:

It is admitted in argument, that this would be the first instance of the Court's upholding an indictment framed as this is in other than the technical language of the law; by which an individual, who is charged with the reparation of a bridge, must be charged "by reason of tenure; or if it be the case of a corporation, it may be done by general prescription. When, therefore, a new form of allegation is attempted to be introduced, it behoves the Court, before they give sanction to it, to see clearly that the allegation is tantamount in every respect to that for which it is substituted, and which has been the long-established form. Upon this subject much argument has been used to shew that the words, by reason of being owner and proprietor, are the same as ratione tenure. But I think the argument has failed in establishing that point. Ratione tenure implies ex vi termini something originally annexed to the holding. And this inconvenience would certainly result from the adoption of this mode of pleading; that it would let in a more lax medium of proof, and bring more of law before the consideration of a jury than is necessary; for this form would admit of the production of every species of evidence by which a person could in any way be made chargeable. The Court ought not to sanction this. Two cases have been referred to, in both of which the circumstances under which the obligation subsisted, were specially set forth in pleading: in the special pleas in those cases, the nature of the obligation is particularly set out. It would be a sufficient argument with me to decide this case, to say that the Court ought to make their stand against these innovations in the first instance.

BAYLEY, J. concurred.

v.

KERRISON.

[ 441 ]

Judgment reversed.

1813. May 20.

[ 442 ]

[ *443 ]

THE KING . THE JUSTICES OF LEICESTER

SHIRE.†

(1 M. & S. 442—446.)

The Court will not grant a mandamus to the Justices at sessions to re-hear an appeal against an order of removal, after judgment given by them, and entered by the clerk of the peace for quashing the order; upon the ground that the Justices at sessions were divided in opinion, and that the judgment was entered by mistake instead of an adjournment of the appeal.

The Justices at sessions may alter their judgment during the continuance of the sessions.

AN appeal against an order of two Justices, for the removal of William Clifton and his children from the parish of Market Harborough to the parish of Biddenham, came on to be heard at the Epiphany quarter sessions for the county of Leicester, when the chairman, after hearing evidence on the part both of the respondents and appellants, pronounced the judgment of the Court, *for confirming the order; but one of the Justices who made the order, being present at the hearing of the appeal, inquired of the clerk of the peace whether he was not one of the Justices making the order; and being answered in the affirmative, observed that it being contrary to a rule of that Court, for Justices who had made orders of removal to vote on the hearing of any appeal thereon, his vote in this case must consequently be withdrawn; and therefore judgment must be for quashing, instead of confirming the order, as by taking away his vote the majority would be against confirming, and for quashing the same. The clerk of the peace thereupon entered the judgment of the Court for quashing, without perceiving at the time that by withdrawing the vote of the said Justice the votes of the remaining Justices would be equal; whereon, by the rules of the Court, an adjournment of the appeal should have been entered, instead of a judgment to quash the order. Afterwards application was made to the chairman to rectify the judgment, but without effect. Under these circumstances a rule nisi was obtained in the last Term, for a mandamus to the Justices to

+ Cited by Lord HERSCHELL in Ex parte Evans, '94, A. C. 16, 20, 6 R. 36, 40.-R. Č.

enter continuances on the said appeal to the next general quarter THE KING sessions, and then to hear and determine the same.

The Attorney-General and Phillipps shewed cause, and contended, that the amended order of sessions for quashing the order of Justices was final; it being competent to the sessions during their continuance to alter or amend any order previously made; in the same manner as in the superior courts during the Term a rule or judgment may be amended, the Term being considered for that purpose as but one day; and this Court will not *afterwards take account of the poll, upon which final judgment was given in the Court below, where, if any error had obtained, it might have been rectified.

Beauclerk and G. Marriott, in support of the rule, said that it appeared clearly from the affidavit that the amended order had been entered by the clerk of the peace through mistake. It was his duty, according to the case of Bodmin v. Warligen,+ when the vote of the magistrate making the order was withdrawn, thereby making the remaining votes equal, to have entered an adjournment; and now the sessions have no authority to proceed, without a mandamus. They also cited R. v. The Justices of Westmoreland; and said that the Court, when the rule was moved for, were inclined in favour of the application.

LORD ELLENBOROUGH, Ch. J.:

I cannot say what might have been my first impression upon an ex parte statement, made at the time when the rule was moved for; but it is my duty now, after having heard both sides, to give judgment on more mature consideration. If any error was made in the entry of the clerk of the peace, that error should have been pointed out at the sessions, while the Court was sitting, and competent to reform its own errors, and to draw out a more correct judgment. If this application were entertained, the consequence would be that this Court would have on all occasions to look, not to the record alone, but to extraneous matter, in order to see how the judgment of the justices at ses

† Mich. Term, 23 Geo. II. Bott. 733, 5th edit.

↑ Tb.

v.

THE JUSTICES OF LEICESTERSHIRE.

[ *444 ]

THE KING Sions was obtained. The Court will not do this; nor, when

v.

LEICESTER

SHIRE,

[ *445]

THE judgment has been finally pronounced, will they hold a sort of JUSTICES OF balloting-box to ascertain the votes that were given, or whether they were correctly cast up. If no judgment had been pronounced, the Court might have interposed; but here there is a judgment. The party who would have corrected the error should have applied to the proper forum and in due time; and if it had been found that the numbers were equal, nothing would have been done upon it; for it would have been a nullity: but here no step of that sort was taken, but judgment was entered; and this Court cannot, in order to supply a remedy, exercise a jurisdiction which does not belong to them. If they did in this instance, they must in all others instead of looking to the result, look to the poll on which the judgment is founded.

[446]

GROSE, J.:

It does not appear that the Court below entertained any doubt; if they had, they would have sent a case for our opinion.

LE BLANC, J.:

It appears by the affidavits on both sides that judgment was entered for quashing the order of Justices; and that this was known to the attornies on both sides; and no application was made to the Court below while sitting, to sift or inquire into the error if any such existed. But application is made to this Court, to institute an inquiry upon the question, how the numbers were composed at the time when judgment was pronounced. This Court ought not to countenance such an application; inasmuch as the error should have been noticed at the time.

BAYLEY, J.:

Except in matters of a criminal nature we cannot look dehors the record. This Court cannot sit as upon a scrutiny before an election committee. In Bodmin v. Warligen the objection appeared upon the entry of record, made by the clerk of the peace.

Rule discharged.

HAGEDORN v. BELL.

(1 M. & S. 450-467.)

Though a State may be in the military possession of one of two belligerents, that will not constitute her subjects enemies to the other belligerent, if the sovereign power of the latter chooses to permit a continuance of commerce with them: therefore, where an insurance was effected on property shipped in this country on account of persons who were domiciled at Hamburgh, at a time when that country was in the possession of French troops, the Senate continuing to exercise the powers of civil government in the same manner as before: Held, that the assured were entitled to recover for a loss which happened in the course of a voyage permitted by His Majesty's orders in Council.

THIS action, which was commenced on the 7th of June, 1811, was assumpsit upon a policy of insurance effected by the plaintiff and subscribed by the defendant for 300l., on the 22nd of August, 1810, upon goods valued at 22,750l., "at and from London to any port in the Baltic." The interest was averred in the first count to be in Brothers Michaholles, Messrs. Gouverin and Steinman, and Messrs. Bianconi and Lohman, and the loss to be by capture. Plea, general issue. At the trial before Lord ELLENBOROUGH, Ch. J., at the London sittings after Hilary Term, 1812, the jury found for the plaintiff, damages 300l. and costs 40s., subject to the opinion of the Court upon the following

case:

The plaintiff is a merchant resident in this country. The goods insured were shipped by the plaintiff in August, 1810, on account of and by the order of the persons in whom the interest is averred in the first count of the declaration, and who are all merchants domiciled at Hamburgh. On the 18th of August, 1810, a licence was granted, in pursuance of an order of Council of the same date, to the plaintiff by the name of J. P. H. Hagedorn, of London, merchant, on behalf of himself and other British merchants or neutral merchants, to permit them to load and export on board the vessel Emilie, bearing any flag except the French, a specified cargo, from London to any port in the Baltic not under blockade, &c. notwithstanding the documents may represent the same *to be destined to any other neutral or hostile port, and to whomsoever such property may appear to belong.

1813.

May 21.

[ 450]

[*451 ]

R.R.-VOL. XIV.

K K