Page images

had no jurisdiction to try the appeal, inasmuch as the notice of recognizance had not been served forth. with," as required by the 8 Vict. c. 10, s. 3, which provides,that in respect of any order to be made after the passing of this Act, the party entering into any such recognizance shall forihwith give or send a notice in writing of his having so entered into any such recognizance, to the woman in whose favour the said order shall have been made,&c. Upon this, the foregoing memorandum was given in evidence on the part of the appellant, whereupon the Sessions heard the appeal and quashed the order. Upon a motion for a certiorari to bring up the order of Sessions to quash the same, on the ground that they had no jurisdiction to hear the appeal, as the notice had not been served forthwithHeld, that as the memorandum furnished some evidence of the required notice having been properly served,

it was a question for the justices, and they having decided upon it and heard the appeal, the Court would not interfere with their decision.

was a rule calling upon the justices of Gloucestershire to shew cause

[ocr errors]

order made at the general quarter sessions for the said county, quashing an order made by justices at petty sessions, which adjudicated that one George Hiron was the father of a bastard child of one Elizabeth Gibbins.

The facts were as follow :-Complaint having been made by one Elizabeth Gibbins that one George Hiron was the father of her illegitimate child, the George Hiron was duly summoned to answer the charge, and on the hearing thereof on the 9th of April, an order of affiliation, adjudging the said George Hiron to be the father, was made by the justices at petty sessions. Upon this, notice of appeal was duly given, and on the following 13th, the appellant entered into the recognizance to try his appeal. No notice of this recognizance was served upon the respondent until the following 22nd of June, (a) but on the 29th of that month the respondent's attorney signed and handed over the following memorandum:

Gloucestershire Summer Sessions, July 1, 1846. “GEORGE Hiron, Appellant, and ELIZABETH GIBBINS, Respondent. “I hereby admit the due service of the notices of bail and appeal given herein on respondent, Mr. Chesshyre undertaking to produce the original notices on the hearing of this appeal, together with the order, “ Dated this 29th day of June, 1846.


“Attorney for the said E. Gibbins. “ To Mr. George Hiron, and to Mr. Chesshyre, his attorney."

The appeal having been called on in its turn, an objection was taken by the counsel for the respondent, that inasmuch as the notice of recognizance had not been served upon the respondent forthwith, (b) the Sessions had no jurisdiction to enter into the appeal. To answer this objection, the foregoing memorandum was produced, and reliance was placed upon the admission it contained of due ervice. The justices thought the irregularity cured by the admission, and having heard the appeal upon its merits, quashed the order of Petty Sessions. The ground upon which the present rule was obtained was the same as that taken by the respondent at the sessions,

Greaves shewed cause.—This question turns entirely upon whether or not the respondent was precluded from taking the objection of the want of due notice by the admission in the memorandum, signed by her attorney, that due service had been effected. The document speaks for itself, and is not open to two interpre

(a) By the 8 Vict. c. 10, s. 3, it is enacted, “ That the recognizance before one of the justices who shall in respect of any order to be made after the passing have made the order, or one at least of such justices, of this Act, the party entering into any such recog- and in default of his giving or sending such notice nizance shall forth with give or send a notice in writ. or notices as aforesaid, the appeal shall not be al. ing of his having so entered into any such recogni- lowed, provided that the sending of such potice of zance to the woman in whose favour the said order notices by the post shall be taken to be sufficient." shall have been made, and unless he shall enter into (6) See the statute, ante.

tations ; if it has not the meaning put upon it by the Sessions, it really has no meaning at all. The appellant, no doubt, was bound under the statute to serve his notice of recognizance upon the respondent forthwith; but if the respondent admits that the service has been regular, the Sessions were certainly justified in so considering it. There was, at all events, evidence upon which the Sessions could act, and as this was a question peculiarly for their consideration, and they have come to a decision upon it, this Court will not interfere with their judgment, particularly after they have heard and decided the appeal upon its merits.

Wise, contrà. — The jurisdiction of the Sessions to hear the appeal depended on the fact of the notice having been served “ forthwith," as provided for by statute; and even supposing that the memorandum was an admission, on the part of the respondent, that due notice had been given, it was still necessary to originate the jurisdiction of the justices to shew that in fact the requirements of the statute had been complied with. But the admission itself is merely that of the fact of service; that is, that the service had been duly made upon the proper individual, and not that the notice itself was sufficient, and was obviously intended to dispense with the proof of actual service, which, perhaps, may have involved great expense and inconvenience, as the party effecting the service may have been living at a considerable distance; it could not have been fairly intended that this admission was intended to waive all just exceptions to the sufficiency of the notice itself, and, indeed, the reservation in the memorandum, that the original notices shall be produced at the hearing, shews that it was not intended to waive any objection which may have existed against the notice itself. The effect of the admission is merely that the notice was served in fact. (Erle, J.-If you had said that alone, your argument would be very strong ; you have chosen to say not merely that the notice was served, but that it was duly served.] The meaning of the words “ duly served” was probably that the notice came to the hands of the respondent, since the statute dispenses with personal service, and even allows of a service through the Post-office. These sort of admissions are now become common, and it is never understood that they go the length of admitting that the notices themselves are unobjectionable. (Sharpe v. Lamb, 11 A. & E. 805 ; Vane v. Whittington, 2 Dowl. N. S. 757.) In Reg. v. Lord Hastings (6 Q. B. 147), where service was admitted, it was held not to waive the necessity for the proof that the notice was properly signed. This Court has always construed this statute strictly as regards the giving of the notice. In Reg.v. The Justices of Worcestershire (1 B. C. R. 102), in which case the notice of recognizance was not given until seventeen days after the recognizance had been entered into, endeavours having in the mean time been made to serve the respondent personally, this Court held that the service was bad on account of the delay, as personal service was not necessary. In this case, upwards of two months had elapsed before the notice was served, which clearly rendered the service nugatory, and the statute not having been thus complied with, the jurisdiction of the Sessions to hear the appeal did not arise.

ERLE, J.-I am clearly of opinion that the Sessions were right in hearing the appeal, upon the strength of the admission of the due service of the notice of recognizance. No doubt it is necessary, in order to originate their jurisdiction, that proper notice should have been given to the respondent; but if they have any evidence before them of the fact of proper service of the notice required, this is a matter entirely for their consideration, and this Court cannot interfere with their decision. It was clearly for the justices to put a construction upon the admission of due service contained in this document, and as they have put a construction upon it, and have come to the conclusion that proper notice was in fact given, they were properly seized of the appeal, and were, therefore, correct in hearing it. The admission certainly furnished some evidence from · which the Sessions were at liberty to come to the conclusion that the required notice was properly given, and upon that evidence they have acted, and under such circumstances their decision is final.

Rule discharged.



[ocr errors]

Hilary Term, and Sittings after.- February 13, 1847.

Appeal— Order of removal-Grievance.
There is a right of appeal against the service of an order of removal, or after actual removal, at the

option of the appellant parish, and this is not affected by the occurrence of a practicable sessions between the service of the order and the removal of the pauper.

a Recorder of Leeds, made in quarter sessions, for the purpose of quashing it, which had been made on appeal, quashing an order of removal from Leeds to Easingwold. There was no jurisdiction to entertain the appeal, because a practicable sessions had intervened between the service of the order and notice and the actual removal. A practice has grown up of treating the actual removal as a grievance; but this is not so, according to the true construction of the 79th section of the Poor Law Amendment Act. Referring to the cases since the Poor Law Act, the question has not been definitively settled. In Reg. v. The Justices of Salop (6 Dowl. 28), Littledale, J., while holding that the order was no grievance, although in certain events a liability to costs might arise, also said, that the actual removal was the first grievance. But in Reg. v. The Justices of the West Riding (14 L. J. 11, M. C.; 1 New Mag. Cas. 132), Wightman, J. considered the order itself to be a grievance. He then said : “ The only reason why removal was requisite before the recent statute was, that the removal created the grievance, and until then there was none; but the new Act directs that the expense of maintaining the pauper shall be borne by the appellant parish, from the time of giving notice of the order, and it is conceded that, under these circumstances, the order itself operates as a grievance ; the parish, therefore, may appeal upon that." The first part of Mr. Justice Littledale's decision has been, therefore, disregarded ; and although the second part was followed, it will be found that it was under a mistake as to the old law. [COLERIDGE, J.-Has it not been universally acted upon ?] It has been very little discussed. The passage cited shews his lordship to have considered, that under the old law, the removal was the grievance. But this was not so; it was the judgment. The second section of 13 & 14 Car. 2 is, that “all such persons who think themselves aggrieved by any such judgment of the said two justices, may appeal to the justices of the peace of the said county, at their next quarter sessions, who are hereby required to do them justice, according to the merits of their cause.” [WIGHTMAN, J.— The removal would be a fresh grievance.] There is no appeal given by statute against it. The mistake arose, probably, from the fact that formerly it was the practice to deliver the order and the pauper at the same time. The judgment was, however, the grievance, and now the delivery of the order, which is the first notifi

cation of the judgment, is that which gives the right of appeal. The subsequent injury by the removal is nothing, unless the appeal be given by statute. Thus, the time for appeal runs from the making of the order for stopping up a highway, not from the time of the order being acted upon. There are cases that seem to shew that the order, when served, might have been appealed against, although, practically, it was the removal, as it was usual to deliver the pauper with the order. (See 19 Vin. Abridgm. tit. Sessions; and see also Rex v. Bishop's Wearmouth, 5 B. & Ad. 942.) This double appeal defeats the object of the statute, which was to prevent the useless expense of removing, and the pauper being afterwards sent back.

Lord DENMAN, C. J.-Before we throw any doubt upon the practice, we must consider of it.

Cur, adv. vult.

Judgment. LORD DENMAN, C. J.-A motion was made by Mr. Hall on the 29th of January, on behalf of the corporation of Leeds, for a certiorari to bring up an order of Sessions to be quashed, on the ground that the appeal against an order of removal must be made at the first practicable sessions after the order is made and served, and that the appeal, at the first practicable sessions after actual removal, is too late, if it be out of time, calculating from the service of the order. It has been the ordinary practice since the case of Reg. v. The Justices of Salop, reported in 6th Dowling, to consider the actual removal of the pauper as the grievance to be appealed against. We cannot, as we said before, when we heard the rule moved for, permit parties to bring uncertainty in the practice that has existed since the 4 & 5 Wm. 4, c. 76, ss. 79, 81, & 84; and in the case of an appeal before my brother Wightman (Reg. v. The Justices of Yorkshire, reported in 2 Dowling & Lowndes), it is considered the making and serving the order, the notice of chargeability and copy of the examinations made, are, since the passing of the 4 & 5 Wm. 4, constituted a sufficient grievance to warrant an appeal. In coming to this conclusion there was no intention to overrule the case of Reg. v. The Justices of Salop as to the point determined by it, that the appellant may treat the actual removal there as the grievance to be appealed against, for my brother Wightman considered the appellant might, if he had pleased, treat either the order of removal and service with notice of chargeability and copy of the examination, or the actual removal of the pauper, as the grievance to be appealed against, and that no practical inconvenience can arise from giving the appellant such an opportunity, but rather the contrary; and in this view of the case we concur, and not only consider, with Mr. Justice Littledale in Reg. v. Salop, the actual removal may be treated as the grievance, but that the order and service and notice of chargeability and copy of examination do constitute a grievance on which to make an appeal. Although this varies from the latter part of the judgment of Mr. Justice Littledale in Reg. v. The Justices of Salop, we are disposed to think those decisions not inconsistent with the point in question, that the appellant may treat either the order and service with notice of chargeability and copy of the examinations as the grievance against which he may appeal, as held in the late case, or treat the actual removal of the pauper, as held by Mr. Justice Littledale; and this view of the case is in accordance with the opinion of my brother Patteson in the case of Reg. v. The Justices of Middlesex (9 Dowl. 167). We therefore think it desirable to indicate immediately that we entertain no doubt on this subject, and that the practice which has long prevailed is to continue ; and of course there will be no rule granted in

that case.

E. W.



Hilary Term.January 29 and February 25, 1847.
THE QUEEN v. HinchcLIFFE and ANOTHER, Justices, &c.

Abandonment of order of bastardy-Adjournment-Reswearing witnesses.
Quære, whether an order of affiliation under 8 & 9 Vict. c. 10, can be abandoned, afler notice of

appeal and recognizances entered into ? But, at any rate, it cannot be done, unless all the costs incurred by the opposite party are paid, so

that the parties may be placed in the same position as they were. Therefore, where a summons had been adjourned, and the order obtained thereon afterwards aban.

doned, but the costs of the adjournment alone paid, the Court refused to grant a mandamus com.

manding justices to hear a fresh application. Semble, upon an adjournment of the hearing, any witness who is examined again should be re.



HITEHURST and Huddlestone shewed cause against a rule for a

mandamus calling upon certain justices to proceed to hold petty sessions as of 17th June last, to hear an application for an order upon one W. Williams as the putative father of a bastard child. It appeared, upon the affidavits, that an application for an order in bastardy had been made on April 4, and the hearing adjourned until the 14th. On that day, the same justices not being present, the defendant's attorney required that the woman should be resworn; this her attorney objected to, and it was not done. The order was then made. Notice of appeal, upon that ground, was then given, and recognizances duly entered into and served. On May 2, notice was given that the order would be abandoned, and a tender of costs was made, and a certain amount received. A second summons was taken out, and came on to be heard on May 12, and was refused on May 15, some dispute having taken place as to the payment of the costs. A third summons was then taken out for June 12, and at the hearing, the former order being produced, the order was refused. The justices were quite right; for, first, there was no evidence before them that the order had been abandoned. Secondly, there was no power to abandon ; the order was good upon the face of it; the justices had been once seised of the case under the statute, and their jurisdiction having been once exercised, the case was at an end. If not, to how many sets of justices may the application be made ? The decisions under the old Bastardy Acts are relevant. The Court of Quarter Sessions had an original jurisdiction to make an order of bastardy (Slater's case, Cro. Jac. 471); but if an application was first made to two justices, the Sessions could not make an order, although the first order was bad. This was distinctly held in Rex v. England (1 Str. 533). Here, the justices have exercised jurisdiction, and the Act gives no further right of applying. (See also Rex v Smith, 2 Bulstr. 342; Com. Dig. Bastard, G. 2; Pridgeon's case, Sir W. Jones, 330.). It is supposed to be analogous to an order of removal

, which may be abandoned; but that is a mere ex parte proceeding until it reaches the sessions, and the cases do not shew that an order may be abandoned after appeal heard. (See Reg. v. St. Pancras, and following cases

, 3 Q.B.352.). So, after overseers are appointed, the magistrates are functi officio; and no other magistrates can afterwards, upon claim of one of them so appointed to be exempted, appoint another in his place: there must be an appeal to the Sessions. (Rex v. Great Marlow, 2 East, 244.) So a rate cannot be abandoned. (Rex v. The Justices of Cambridgeshire, 2 Á. & E. 370.) [Patteson, J.From the report of that case in 4 Neville & Manning, 238, that does not seem to

« PreviousContinue »