« PreviousContinue »
to support the same, and fail to disclose any such facts as shew either the said Maria Jones or her supposed husband to have a settlement in our said parish of St. Anne aforesaid : that the said examinations are wholly bad and insufficient, inasmuch as they neither shew who were the parties to the supposed indenture of apprenticeship, nor do they shew whether the said indenture of apprenticeship (if a parish apprenticeship) was signed and sealed by the parish officers, and allowed by justices of the peace, as by law required. Thirdly, that notice in writing of the said paupers being chargeable to or relieved in your said parish of St. Pancras, accompanied by a copyor counterpart of the said order made, has not been sent by post or otherwise to us, the church wardens and overseers of the poor of the said parish of St. Anne, Westminster, or any of us, in conformity with the provisions of the statute in that behalf.” The appellants, on the hearing, insisted that the examinations were bad, for the reasons specified in the third ground of appeal. The Court overruled this objection, and held the examinations good, subject to the opinion of this Court. It appeared that the only notice in writing of the chargeability of the said paupers which had been sent to the parish officers of St. Anne's, Westminster, had been accompanied by what purported to be a copy of the order, but that such document, instead of containing a true transcript of the words of the said order, wholly omitted from the adjudication therein the names of the two children. The appellants, on these facts, objected that the respondents had not complied with the provisions of the statute in that behalf made, and that the order of removal ought on this ground to be quashed. The Sessions overruled this objection also, subject to the opinion of this Court. If this Court shall be of opinion that the said examinations are insufficient, for the reasons stated in the third (a) ground of appeal, or that the defect in the copy of the order of removal was a good objection, and was sufficiently pointed out in the fifth ground of appeal, then the said order of Sessions and the said order of removal are to be quashed; otherwise, the same to stand confirmed.
Subsequently to the statement of the above case, Pashley obtained a writ of certiorari to remove the original order into this court, and a rule nisi to quash it for a defect apparent upon the face of it, which he pointed out on moving. Notice of that objection, with the rule, had been served on the respondents.
Prendergast, in support of the order of Sessions. First, the fifth ground of appeal does not let in the objection, that the copy of the order sent was not a correct transcript. It points to an objection of a totally different nature: that the proper documents were not sent at all, and was certain to mislead. Nothing could be easier than to describe the objection correctly. [COLERIDGE, J.-— The ground of appeal to which you allude is the third ; but the question left to us by the case is, whether the defect in the copy of the order is sufficiently pointed out in the fifth ground of appeal ?] Yes; there is a blunder in the case. The grounds of appeal are not correctly numbered, and this produces so much confusion, that the Court cannot give any judgment upon it
. [Pashley, for the appellants. If it be quite clear what questions the Sessions intended to leave to this Court, the Court will not refuse to give judgment on account of an accidental clerical error; and here there can be no doubt as to the points raised for decision. The case was drawn by the Court of Quarter Sessions. LORD DENMAN, C. J.-There is certainly a mistake in the case, and it is equally certain that we cannot amend it. The proper course would have been for the party who obtained the case to have applied to the Sessions to amend it, before
(c) The reference by numbers to the grounds of in the course of the argument. The ground of ap. appeal, as stated in the case, was incorrect ; and the peal here referred to is the one recited as the second, mistake, as will be seen, was noticed by the Court in the earlier part of the case. VOL. II.
bringing it here for argument; but we will hear it under protest.] The next objection rests upon a supposition that the Court will presume this to have been a parish apprenticeship; but if any thing is to be presumed, the primâ facie presumption is the other way. [Lord DENMAN, C. J.-Is there not a recent case on this subject ?] Pashley mentioned Reg. v. Camberworth Half (5 Q. B. 484; 3 G. & D. 309). [PATTESON, J.-Why are we to presume that it was a parish apprenticeship?] The case cited shews that no such presumption can be made, and here the statement rebuts it. A parish apprentice is bound by the parish officers without his own consent; but here the evidence is, that the binding was “by and with the consent” of the apprentice, his parents being dead.
The Court then called upon
Pashley, contrà. - No presumption is to be made either way; but the examination must shew distinctly such a binding of the apprentice as is sufficient to confer a settlement. [COLERIDGE, J.-But if you contend that the requisites of a parish apprenticeship do not appear, the answer is, that the apprentice does not appear to have been a pauper, and there is no presumption that he was a parish apprentice. PATTESON, J.-And if the examination is evidence of a legal binding between the parties, is not that sufficient ?] No parties are stated. [COLERIDGE, J.-Yes; it is said that the pauper's husband was bound to the master.) But not who were the parties to the deed. The consent of the apprentice is certainly stated, but the inference from that statement is, that he did not execute the deed; and then who did ? By whom was he bound? A graver question might arise if the facts were stated, whether guardians or other persons in loco parentis, or even parents themselves, have authority to bind a child apprentice, and whether the deed must not be executed by the party bound. (W1GHTMAN, J.—The examination states that he was bound.] That is a conclusion of law only ; the facts should be stated. (Reg. v. High Bickington, 3 Q. B. 790, n. ; 1 D. & M. 103; 1 New. Mag. Cas. 1.) În Reg. v. Cumberworth Half, the Court collected from the words covenant indenture” that the binding was not by the parish officers; but here there are no words at all inconsistent with the supposition of a parish apprenticeship, and, therefore, the examination is insufficient, because, consistently with every statement in it, the pauper may have gained no settlement. That is the rule laid down in Reg. v. Lydeard St. Lawrence (11 A. & E. 616), and Reg. v. St. Sepulchre, Northampton (6 Q. B. 580; 1 New Mag. Cas. 140). Secondly, the fifth ground of appeal is sufficient to entitle the appellants to object to the omission in the copy of the order sent. That omission is only material in consequence of the 79th section of the Poor Law Amendment Act; and the objection is taken in the very words of that section, with a reference to it, by the words “in conformity with the provisions of the statute in that behalf." Then, was the statute complied with ? Clearly not; for the copies of documents required by that section to be sent must be exact copies. (Reg. v. Shipston-on-Stour, 6'Q. B. 119; 1 D. & M. 123 ; 1 New Mag. Cas. 41.) Lastly, if the Court should be of opinion that neither of these objections can be sustained, they will then look to the original order itself, and if it be bad upon the face of it, will quash it. (a)
LORD DENMAN, C. J.-I am of opinion that neither of the objections stated in the case affords any ground for quashing this order. As to the first, making only a reasonable intendment in support of the order, it seems to me that the examination contains sufficient evidence of a settlement by apprenticeship. With regard to the second, a copy may well be said to be correct, if it be sub
(a) The argument and decision upon this point are reported suprà, 60.
stantially the same as in the original ; the omission of a letter could make no difference; but, at all events, such omission could not be made available under this ground of appeal, which could only mislead by pointing to an omission to send any copy. The ground of appeal, to raise the objection, should have stated that the order was bad for not adjudging the settlement of the two children removed by it. The Sessions were, therefore, wrong only in reserving a case.
PATTESON, J. concurred.
COLERIDGE, J.-I am also of the same opinion. This indenture is said to have been stamped, which negatives altogether the idea of its being a parish indenture.
WIGHTMAN, J. concurred.
(Before Mr. Justice ERLE.)
THE QUEEN v. KEEN. Practice-Leave to file affidavits after expiration of time limited for filing. When a rule nisi has been obtained, which requires the affidavits to be used on shewing cause to be filed by a certain day, the Court will, even after that day has elapsed, grant further time for filing, upon a reasonable excuse being offered, provided the rule is not an eniarged rule. TUDDLESTONE, in Michaelmas Term, obtained a certiorari under the
the Staffordshire and Derbyshire audit district, of the sum of 101. 11s. 114d., charged in respect of the maintenance of a pauper and his family; and upon the return to the writ he obtained a rule calling upon the auditor to shew cause why the said allowance should not be quashed, and why the said sum should not be repaid by the guardians of the Stafford Union, together with the costs of John Keen, at whose instance the writ of certiorari had issued. The rule directed that notice of it should be given to the said guardians, and that all affidavits to shew cause should be filed on or before the 11th day of the then next January, the rule being returnable on Saturday, the 16th instant.
Whitmore now (11th January) applied, on behalf of the said guardians, for a week's further time to file affidavits, stating that their not observing that they were liable to costs under the rule had caused the delay.
Huddlestone (who shewed cause in the first instance).-The rule of M. T. 36 Geo. 3 is directly against this application. That orders “that in all cases · where a special time is limited in any rule, before which time any affidavit is required to be filed, no affidavit filed after that time shall be made use of in court, or before the Master, unless it shall appear to the satisfaction of the Court that the filing of such affidavit within the time limited was prevented by inevitable accident." Here there was no “ inevitable accident.” The rule was served on them on the 5th of December, and they have no real excuse for their neglect. This rule of court ought to be strictly adhered to. (Turner v. Unwin, 4 Dowl. 16.) The case is now in the Crown paper, and stands about forty off, but if fresh'affidavits are now to be filed, fresh points of argument may have to be drawn.
Whitmore, in support of the rule.—The delay is reasonably accounted for, and no inconvenience can arise, as the rule is not returnable for five days to This is not an enlarged rule, as was the case in Turner v. Unwin.
Cur. adv. vult. ERLE, J. (14th January).-In this case I have consulted with the other judges, and I have looked into the authorities, and I find that the cases in which the application has been refused have been those of enlarged rules, which are always made upon the terms that the affidavits shall be filed within a limited time. Here, however, the rule is nisi, and the guardians have had no opportunity of coming before the Court, which distinguishes the case from those in which the application has failed. I am of opinion, therefore, that as the request of the guardians is, under the circumstances, a reasonable one, I ought to grant it.
COURT OF QUEEN'S BENCH.
Hilary Term.-January 20, 1847. THE QUEEN V. THE CHURCHWARDENS OF ST. JOHN THE BAPTIST's,
Church-rate-Mandamus. The Court will not grant a mandamus to enforce the making of a valid church-rate, upon a suggestion that the proceedings at the vestry at which a church-rate had been voted were so irregular as to render such rate void, it not appearing that a rate had been in fact made. And semble, were it made, this is not the Court to decide on its validity, in that mode. Y REAVES moved for a rule calling on the churchwardens of the parish
of St. John, Cardiff, to shew cause why a mandamus should not issue commanding them to convene a vestry for the purpose of making a church-rate, and to take all necessary steps for that purpose. The affidavit on which he moved stated that on the 17th of December, 1844, it was proposed at a meeting of the rated inhabitants of the parish, that a church-rate of one shilling in the pound should be made in lieu of ninepence, for the purpose of fencing in with walls a piece of ground which had been presented to the parish for a burial-ground. At this meeting it was moved as an amendment, that the making of the rate should be postponed for two months. A poll was granted, which continued open for four days, when it was closed by the chairman, though many of the ratepayers protested against its being closed : that at such close of the poll, a majority of one was declared in favour of the rate. It was further stated that many objectionable votes were polled on either side, the chairman having promised that a scrutiny should be had if required, but that the chairman, after the declaration of the result of the poll, refused a scrutiny, though it was demanded on behalf of the minority. It was sworn also, that upon the true state of the poll, the majority of the votes were in favour of the amendment. The rate, under these circumstances, is void altogether, and it could not be enforced, and a mandamus is the proper remedy. (He cited Rex v. Rector of Birmingham, 17 A. & E. 254; Reg. v. Rector of St. Mary's, Lambeth, 8 A. & E. 356; Reg. v. Vestrymen of St. Pancras, 11 A. & E. 15; Rex v. Commissary of the Bishop of Winchester, 7 East, 573.)
LORD DENMAN, C. J.-It appears to me that we cannot grant a rule. The rate is not yet made; and if it had been, this is not the proper tribunal to
set it aside. I think your remedy is in the Ecclesiastical Court. have to do is to see fair play; and I know of no precedent for our interfering
at this stage. If you can find an express authority, you may mention the case mut again. The case was not mentioned again.
Rule refused. E. W.
COURT OF QUEEN'S BENCH.
Michaelmas Term-November 11, 1846, and Hilary Term-February 3,
Acknowledgment—Relieving officer of union-Orders of Poor-law Commissioners. The relieving officer of the W. union, which comprised the parishes of Little M. and of W. with some others, gare relief to a pauper, first in Little M. and afterwards in W., for more than a year, and charged it in his accounts with the board of guardians to W., until he was ordered by them to charge it to Little M., which he did, but without giving notice to Little M. Upon removal by Little M. io W.-Held,
that the facts above stated did not shew a primâ facie settlement in W. The Court will not, on a special case reserved by the Sessions, take notice of the orders of the Poor-law
Commissioners, unless they be made part of the case, or were brought before the Court below at the trial
dated the 16th day of August, A.D. 1845, for the removal of Helen Reeves and her five children, viz., Henry Weston, aged twelve years, or thereabouts; Helen, aged ten years, or thereabouts; William, aged eight years, or thereabouts; Caleb, aged six years, or thereabouts; Edwin, aged four years, or thereabouts ; neither the said Henry Weston, Helen, or William, having gained a settlement in their own right, from the parish of Little Marlow, in the county of Bucks, to the parish of Wooburn, in the same county. The order was quashed, subject to the opinion of the Court upon the following
Case. The said parishes of Wooburn and Little Marlow are parishes comprised within and forming parts of the Wycombe Union, in the counties of Bucks and Oxon. The examinations upon
which the said order was made were duly taken on the 16th of August, 1845, and were, so far as they are material to the present case, as follows:- The said Helen Reeves, upon her oath, said :
“ I was married twelve years, on the 4th day of March last, to James Reeves, of Mill End, in the parish of Little Marlow, Bucks. We were married by banns at Beaconfield church, Bucks. My said husband died in April, 1841. In consequence of my said husband's illness, and he being unable to work, I applied to Kingston, one of the relieving officers of the Wycombe Union, in the counties of Bucks and Oxon, for relief, whilst he was paying the poor of the parish of Wooburn, in the county of Bucks. I applied to him for relief from the said parish of Wooburn, as being the place of settlenient of my said husband, and by his directions. He gave me relief about four months before the death of my husband, and he has given me relief ever since up to the present timethree shillings and seven loaves of bread a week. He told me if I came to him whilst he was paying the poor of the parish of Little Marlow in Little