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such an interest in the land as to be a tenement for the purposes of settle

It is not necessary that the specific fields should have been pointed out. In Rex v. Darley Abbey (14 East, 280), Le Blanc, J. said: “It is ob jected that no specific words pointed out in which way the cow was to be fed, but that need not be agreed upon ; indeed it has been fed upon the same land upon which the owner was residing.” [LORD DENMAN, C. J.-The objection here is, there was no bargain for the feed of the cow at all.] It is submitted that the statement of what was done by the pauper shews that the parties acted upon such a contract ; from the acts of parties, as to occupation of a house, a tenancy may be inferred. The facts in Rex v. Darley Abbey were very similar. There nothing was said as to how or where the cow was to be fed,“ more than Harvey said, that Jerome, his farming man, would inform the pauper in what pasture the cow would be first milked, and he did inform him, and from time to time the pasture was changed, that he might know where to milk her. The cow was grazed in Evans's pastures, in the same farm, for the whole of the two seasons, with the other cows, which were let in the same way to other workmen of Evans, and with other cattle belonging to Evans; the pauper and his partner always milked the cow the whole time; they hired the same cow four successive seasons, and the cow was always grazed the same way on Evans's farm." The summer pasturage of the cow alone was admitted to be of the value of 51. each season.

Lord Ellenborough's judgment was founded upon the contract explained by the subject matter and the circumstances. [LORD DenMAN, C. J.-There is nothing conclusive here in what was done. It is consistent with either explanation. COLERIDGE, J.-There the words “ for the season" occurred, which in itself afforded some ground for the inference that it was to be pasture fed, as it meant the pasture season.] The value of the acts here may not be much ; but if any evidence at all, the Sessions have now decided. It is like the case of inferring a yearly hiring from service.

Pashley (with whom was Prideaux) was not called upon.

LORD DENMAN, C.J.-The case of Rev v. Darley Abbey is an old friend of mine, and I well recollect that, at the time, I thought that even there, there was no evidence of the contract. But that was a different case from the present; and it was found by the Sessions that nothing was said “as to how or where the cow should be fed, more than that the agent of the owner of the land said that Jerome, Mr. Evans's farming man, would inform the pauper in what pasture the cow was to be first milked.” It was shewn, therefore, that it was to be fed and milked upon the pasture land; and so there was an interest in the land. Here it is found “ that nothing was said." The circumstances put forward as proof of the contract are indeed consistent with such contract, but not evidence of it, as they are quite consistent with another explanation.

PATTESON, J.-Upon the evidence there was no contract proved, although in the examinations the pauper swears pretty roundly to such terms as would shew a settlement.

COLERIDGE, J.-We should not be inclined to interfere if there was evidence from which any jury might have inferred a contract; but in Rexv.Darley Abbey the milking of the cow was taken for the season, which was supposed to mean, that she was to be fed as a dairy cow for the pasture season; and the same inference was drawn, because it was said that the particular pastures would from time to time be pointed out. Here it is distinctly stated that nothing was said about the when or the where. If the next morning the cow had been fed in the farm-yard, there would have been no breach of the contract upon which an action could have been brought. The words that the man put him where he liked, are as consistent with a permission as a right. If the subsequent acts are of an indifferent character, and susceptible of two meanings, they cannot be affirmative evidence of either.

WIGHTMAN, J.-Rex v. Darley Abbey, no doubt, closely resembles this ; but there, many expressions were found which do not occur here.

Order of Sessions quashed.



Hilary Term.January 30, 1847.

Ex parte ROBERT Thomas. Mandamus to justices to grant warrant after conviction for taking salmon in a river-Second pro

secution for the same offence. This Court, in the exercise of its discretion, refused to grant a rule nisi for a mandamus, command.

ing two justices, who had convicted a person charged with taking salmon in a certain river, under 687 Vict. c. 33, to issue their warrant either to distrain for the penalty, or to commit him to prison for two months, unless the penalty and costs should be sooner paid, it appearing that this was a second prosecution for an offence of which the party had been previously convicted ; though that first conviction was null and void, and the defendant had been discharged on habeas corpus, after two days' imprisonment under it. ASHLEY moved for a rule nisi for a mandamus commanding Hugh

Rivelly and M. T. Pugh, Esqrs., two justices of Merionethshire, to issue their warrant either to levy, by distress, on the goods of one John Williams, a penalty of 51., or to commit him to prison for two months, unless in the meantime the penalty and costs should be paid. The affidavits shew that John Williams, now convicted in a penalty of 5l. for taking salmon, under 6 & 7 Vict. c. 33, s. 7, had been previously charged and convicted, before two justices, upon

the same facts, under 58 Geo. 3, c. 43, s. 4; that he was thereupon committed to prison, but after an imprisonment of two days, was discharged at Bala by Mr. Justice Williams, then on circuit, upon habeas corpus, for defects in the commitment. It appeared that the commitment was on the 10th February for an offence stated to have been committed on 10th March; and that the conviction had proceeded on a clause in the former statute (58 Geo. 3, c. 33, s. 4), which had been repealed by the 6th section of 6 & 7 Vict. c. 33. Upon the second charge, the defendant put in a long plea of auterfois convict, but the justices convicted him. Application was then made to them for a distress warrant to levy the penalty, but they refused to issue it, on the ground that the man had no goods. They were, however, about to issue a warrant of commitment, when the defendant's attorney said that if they did so they would subject themselves to a penalty of 5001., under the Habeas Corpus Act, 31 Car. 2, c. 2, s. 6; whereupon the justices refused to take any further steps in the matter. It is quite clear that that was altogether a mistake, and that the Habeas Corpus Act has no application at all to such a case. [WIGHTMAN, J.-I don't think there can be much doubt about that. Then the 11th section of 58 Geo. 3, c. 43, was also relied upon before the justices. That section provides, that where any offender has been punished by virtue of that Act, “he shall not again be prosecuted by virtue of any other law now in force, or be liable to any other punishment for the same offence;" but the former conviction was altogether a nullity, and the party was not punished by virtue of that Act, because that section of the Act had been repealed. At all events, the magistrates had convicted, and after conviction, the issuing of the warrant, either to distrain or to commit, was purely ministerial ; the justices might do either, but they are compellable to do one

Their discretion is strictly limited to choosing between the two. LORD Denman, C. J.-The learned counsel has very properly brought all the facts before us, but the only advantage to be derived from that is by refusing the rule. I do not at this moment recollect any case in which a mandamus has gone to justices requiring them to issue their warrant upon the conviction. This is very different from the cases where the ordinary affairs of the world would not go on without our interference by mandamus ; we cannot but see that the world may go on very well, though this person should not be committed to prison a second time, not for having taken a second salmon, but for having taken one as to which he received some punishment the year before. If we have any discretion in the matter, we ought not to exercise it on behalf of this prosecution, and I entertain no doubt that we have. COLERIDGE, J. and WIGHTMAN, J. concurring,

Rule refused. B.



Hilary Term.January 30, 1847.

Costs of mandamus to justices to hear an appeal.
An appeal against an order of removal having been entered, and respited at the sessions next after

the order made, came on for hearing at the subsequent sessions ; but, on objection being made to their jurisdiction, the justices refused to hear the appeal, on the ground that it ought to have been tried at the previous sessions. This Court subsequently issued a mandamus commanding the justices to enter continuances and hear the appeal. Upon application, on the part of the appellants, for the costs of that mandamusHeld (dubitante Wightman, J.), that the respondents must pay those costs, although the decision of the Sessions had been in their favour. ASHLEY had obtained a rule calling on the church wardens and over

seers of the parish of St. Botolph without, Bishopsgate, to shew cause why they should not pay the costs of a mandamus commanding the justices of London to enter continuances upon, and hear the appeal of, the church wardens and overseers of Stockport against an order of removal, bearing date the 25th of November, 1845. It appeared that notice of that order was received by the appellants on the following day; that the pauper was removed on the 22nd of December following; and that at the quarter sessions for the city of London, held on the 10th of January, 1846, an appeal against the order was entered and respited. On the 21st of March, notice of appeal was given ; and at the April sessions the appeal came on to be heard. It was then objected that the appeal ought to have been tried at the January sessions, and the Recorder being of that opinion, refused to hear the appeal. A rule nisi for a mandamus was subsequently obtained, and that rule was made absolute in last Trinity Term (Thursday, June 4). (a)

For the costs of that mandamus, the above-mentioned rule had been obtained.

(a) See R. v. The Justices of London, 1 New Mag. Cas. 548; 2 New Sess. Cas. 410.

Payne shewed cause. The question raised by the mandamus, was whether the first Sessions after the making of the order were bound to enter and respite the appeal, though there had been time enough to give notice of appeal and to try at those sessions; and as upon that question the authorities were conflicting, and as the decision of the Sessions, at which an eminent legal functionary, the Recorder of London, presided, was in favour of the respondents, they were justified in shewing cause against the rule for a mandamus, and ought not to be called upon to pay the costs of the other side. He referred to the cases of R. v. Staffordshire (7 East, 549); R. v. Bucks (3 East, 342); and R. v. The North Riding of Yorkshire (3 T. R. 150).

Pashley, contrà. This was an attempt to unsettle the practice as it had prevailed universally since the case of R. v. Staffordshire. The first Sessions had received and respited the appeal; and then the second refused to hear it on the ground that the former Sessions had done wrong.

LORD DENMAN, C. J.-We think that there is nothing to take this case out of the ordinary rule. Mr. Payne puts it on the fact that a learned person presides at these sessions ; but we cannot consider that that makes any difference, or affords any justification to parties for shewing cause on an untenable objection

COLERIDGE, J.-When it appears that this appeal had been actually entered and respited at one sessions, it removes all doubt ; the objection clearly could not prevail at a subsequent sessions, and the party must take the consequence of shewing cause against a mandamus upon that ground. However, I lay down no general rule.

WIGHTMAN, J.-I feel considerable difficulty in this case, because in effect the necessity for the mandamus was occasioned by a mistake of the Court. But as under the particular circumstances, without laying down any, general rule, the rest of the Court are of opinion that this rule should be made absolute, I do not feel it necessary to press my own individual opinion.

Rule absolute.



Hilary Term.-January 16 and 20, 1847. The Queen v. THE INHABITANTS OF St. Anne's, WESTMINSTER. Settlement by apprenticeship-Evidence of the binding-Grounds of appeal, sufficiency ofPractice by a copy of the examinations on which the said order was made, has not been sent by post or

on argument of case reserved. One of the examinations on which an order of removal was made, stated as follows :-" The pauper's

husband is my nephew. In or about May, 1831, he was, by and with his own consent (his parents being dead), bound by indenture of apprenticeship, which was duly stamped and executed, to serve R. M. S., of, &c., in the parish of St. Anne (the appellant parish), cabinet maker, as an apprentice for the term of six years from thence next following. I attended on behalf of my said nephew when he was so bound. I saw the said indenture executed by the parties thereto, who did severally sign, seal, and deliver the same in my presence, to which I did then set and subscribe my name, as attesting witness to the execution thereof." Proof having been given that the indenture

was lost-Held, sufficient evidence of a binding to confer a settlement by apprenticeship. One ground of appeal slated, that notice in writing of the said paupers being chargeable to or

relieved in your said parish of St. P., accompanied by a copy or counterpart of the said order, and


otherwise to us, &c., in conformity with the provisions of the statute, &c.". Held, that that ground of appeal would not let in an objection, that the copy of the order sent was

an imperfect copy, in omitting from the adjudication the names of two children removed with their

mother. Upon the argument of a case reserved by the Sessions, and set down in the Crown paper, this Court will not entertain any objections not raised in the case, although a rule nisi to quash the order may have been obtained upon a statement in open court of such objections. The party must either abandon his case, or abide by it ; but if he adopt the former course, he is not precluded from resorting

to the remedy by certiorari. ON

N appeal against an order of one of the metropolitan police magistrates,

for the removal of Maria Jones and her two children from the parish of St. Pancras, in the county of Middlesex, to the parish of St. Anne, Westminster, the Sessions confirmed the order, subject to the opinion of this Court upon a case, the material parts of which were as follow : -The examinations upon which the order of removal was made were taken on the 15th August, 1844, and were, so far as they are material to the present case, as follow :

Edward Jones, upon his oath, said :-“I know the said Maria Jones; her husband, James Wm. Jones, now absent from her, is my nephew; he is about the age of 28 years. In or about the month of May, 1831, he was, by and with his own consent (his parents being dead), bound by indenture of apprenticeship, which was duly stamped and executed, to serve Richard Miles Scott, of Deanstreet, Soho-square, in the parish of St. Anne, Westminster, in the county of Middlesex, cabinet maker, as an apprentice for the term of six years from thence next following. I attended on behalf of my said nephew when he was so bound. I saw the said indenture executed by the parties thereto, who did severally sign, seal, and deliver the same in my presence, to which I did then set and subscribe my name, as attesting witness to the execution thereof. The said indenture then passed into the possession of the said Richard Miles Scott, the master of the said James Wm. Jones."

The said Richard Miles Scott, on his oath, said: “The said James Wm. Jones, the person hereinbefore described, and referred to in the foregoing examinations, was my apprentice. He was bound by indenture bearing date in or about the month of May, 1831, as set forth in the above examination of Edward Jones, to serve me as an apprentice for the term of six years from thence next following, to learn the art and mystery of a cabinet maker. I then resided in Dean-street, Soho-square, in the parish of St. Anne, in the liberty of Westminster, in the county of Middlesex. He served me there under the said indenture for about four years, when he quitted and left my service, and went away without my leave and consent ; he lived and lodged for more than forty days and forty nights in each and every year during such service, viz., during all the time thereof, in my house in Dean-street, Soho-square aforesaid. I had previously deposited the said indenture in the custody of Mr. James Jay, the person now present, by whom it was never afterwards returned. I have not seen it since, nor do I know what has become of it, or where it is or can be found."

The said James Jay, on his oath, said :—“ The indenture of apprentice ship referred in the foregoing examination was deposited in my possession about twelve years ago. I do not recollect that it was at any time afterwards returned, or delivered up or given over to any other person. I have made search for the same, but cannot find it. I verily believe it to have been inadvertently mislaid or accidentally lost or destroyed.”

The following were the grounds of appeal on which the appellants relied: First, that the said order is bad and defective on the face thereof. Secondly, that the examinations on which the said order was made are wholly insufficient

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