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presumed, the language of the jurat being ambiguous, that the examination was in fact taken before two Justices; and that the error afforded no ground for quashing the order of removal on appeal.
Especially (per Williams, J.) the ground of objection taken being in its language limited to an objection to the form of the jurat.
On an appeal to the Quarter Sessions for the West Riding of the county of York against an order for the removal of Ann Teasdale and her children from the township of Silkstone to the township of Cawthorne, the Sessions discharged the order, subject to the following case
One of the examinations whereon the said order of removal was made was an examination of Martha Chappell, in which she stated that she well remembered the birth, at Cawthorne aforesaid, of George Teasdale, the deceased husband of the pauper Ann Teasdale, and that she, the examinant, was present when the said George Teasdale was born at Cawthorne aforesaid. At the foot of this examination was written, "Sworn before me, the day and year first above written; and I do hereby certify that the above examination was read over and explained to the said examinant previously to her being sworn thereto, who appeared perfectly to understand the same. W. Benet Martin, H. Watkins." One of the grounds of appeal sent to the respondents was, that the examination of Martha Chappell, upon which the said order is in part founded, is illegal and bad, inasmuch as, though signed by two Justices, it purports to have been taken before one Justice only. On the trial of the said appeal, the counsel for the respondents opened as their case the birth settlement of the pauper's husband in the appellant township, as stated in the said examination, whereon the said order of removal had been made, and which birth settlement the respondents were then prepared to establish by evidence; whereupon, and before any evidence was given, the counsel for the appellants objected, that there was no sufficient examination to support the order, &c. The Court of Quarter Sessions decided, that the said order of removal must be discharged, inasmuch as the said examination of Martha Chappell, so signed as taken before two Justices, was rendered a nullity, and could
not be received on account of the insertion of the words "me" and "I" in the jurat, where "us" and "we" ought respectively to have been found: and thereupon discharged the said order of removal accordingly, subject to the opinion of the Court of Queen's Bench upon their so doing. The question for the opinion of the Court of Queen's Bench was stated to be, whether the jurat in question was such as to require the said Court of Quarter Sessions to reject entirely the examination on the face of which it appeared. If the Court of Queen's Bench should be of opinion that the Sessions ought to have overruled the objection above stated, the order of the Court of Quarter Sessions to stand quashed, and the said original order of removal to stand confirmed.
Dundas and Sir G. Lewin, in support of the order of Sessions, contended, that the defect apparent on the face of the jurat, was fatal to the admission of the examinationWare v. Stanstead Mountfitchet (1), The King v. Stotfold (2).
Erle and Pashley, contrà, contended, that on the face of the jurat itself, it might be inferred that two Magistrates were present, from their signatures at the end; and that if so, the Court would presume that the use of the singular pronoun for the plural was a mere mistake, as in The King v. St. Mary's, Leicester (3).
LORD DENMAN, C.J.-It is unfortunate that such a question should have been raised, merely by reason of the person who drew up these documents not having conformed to the usual practice. But the ground of appeal here is, that the examination purports to be taken before one Justice only. That ground of appeal is properly taken, and is quite intelligible. But this is a judicial act, in which every fair presumption is to be made, that everything was rightly done, if the documents themselves leave it doubtful and I cannot say but that they do. I think, therefore, the order of Sessions ought to be quashed.
WILLIAMS, J.-I have certainly considerable reluctance in coming to the same conclusion, and very much doubt the utility of upholding this examination. I think that (1) 2 Salk. 488. (2) 4 Term Rep. 596. (3) 1 B. & Ald. 327.
when it is so easy to follow the usual course, we ought not to be called upon to sustain negligence and cure mistakes. It is argued, that the language of the jurat, even supposing it plain, is not to be considered conclusive against the admission of the examination that I do not think. There is no evidence as to how the examination was really taken and I much doubt whether, if such evidence had been tendered, it would have been admissible to contradict the jurat. It is therefore at least open to doubt whether the Sessions were not right. However, we may, I think, ground our decision upon the reason, that it was evidently the understanding of the parties that the proceeding was rightly had in fact, though wrongly described in form. That the ground of appeal given by the appellants seems to admit; it seems to state the objection simply as on the ground of form, allowing that, in reality, the examination was taken before the two. Then, I think, the language of the jurat being ambiguous, the presumption of omnia ritè acta may prevail. COLERIDGE, J.-I agree in much regretting that a little more care was not taken, and am not surprised at the decision of the Sessions. I think that without the experience which lawyers attain in the rules of technical presumptions, any one would naturally come to the same conclusion, and would understand that the whole jurat had reference to one individual only. But we must look at the document as lawyers, and give it the benefit of fair presumption. Now the words "I" and "me" may be read as referring respectively to each of the individuals who sign the jurat. This affords a foundation for the presumption omnia ritè acta, so well known in law, and seeming to apply peculiarly to such a case as the present. Otherwise, there must have been an assumption of illegal authority, at least by one of them, and a fraud practised at all events in both signing.
WIGHTMAN, J.-The jurat is signed by two, but the first person singular is used in it. We cannot say to which of them it applies. It may be presumed, referring it separately, that it applies to each and both. Thus a promissory note in the words "I promise to pay," signed by two, has been held to bind both.
Order of Sessions quashed.
1842. THE QUEEN v. THE INHABINov. 9. TANTS OF STOWFORD.
Where an examination of a pauper set out a hiring with Mr. J, of S. (the respondent parish), and service under it, from Lady-day, in a specified year, for eleven months and a fortnight; and the following ground of appeal was given-"Because the pauper acquired a settlement in the said parish of S, by hiring and service with one Mr. J, from Lady-day to the following Lady-day, and service under the same in that parish accordingly:"-Held, that no evidence could be received under this ground, inasmuch as it was in itself defective, from the absence of any statement of time and residence, and could not be coupled with the allegations in the examination, there being no words of reference to connect them.
On an appeal to the Quarter Sessions for the county of Devon, against an order for the removal of William Williams, his wife and children, from the parish of Stowford to the parish of Broadwoodwidger, in the same county, the Sessions confirmed the order, subject to the opinion of this Court on a
The case set out the examination of the pauper, which stated facts establishing a settlement in Broadwoodwidger, and then proceeded as follows:-" About ten years ago, I went to Mr. Rundell, at Stowford, and lived from Michaelmas until Lady-day, and then went to Maristow, and lived there eight months, and afterwards went to work until the following Lady-day, and then went to Stowford, and lived with Mr. Jackman there, under a yearly hiring for eleven months and a fortnight." The case then set out the grounds of appeal, of which the following was the material one :-"Because the pauper acquired a settlement in the said parish of Stowford, by hiring with one Mr. Jackman, from Lady-day to the following Lady-day, and service under the same in that parish accordingly, subsequently to that acquired by him in our parish." The respondents objected, that the appellants were not at liberty to go into evidence of any settlement in Stowford, under the above ground of appeal. The Court of Quarter
Sessions overruled the objection, heard the evidence, and quashed the order of removal. The question stated for the opinion of the Court was, whether on these grounds of appeal, the appellants were at liberty to prove a settlement gained by William Williams in the respondent parish, by hiring
Kekewich and Greenwood, for the appellants. It is conceded, that the ground of appeal is not sufficiently set out, to admit the appellants to proof, if taken alone. It is deficient, in wanting both the statement of time and the statement of the pauper's residence-The Queen v. the Justices of the West Riding, Drighlington v. Pudsey (1). The question for the Court is, whether these may be supplied by connecting the ground of appeal and examination together; whether the Court below was not right in intending that the hiring and service with one Jackman, mentioned in the ground of appeal, were meant to be the same with the hiring and service, set out in the examination of the pauper, with a party of the same name; and that the allegation simply amounted to this, that the service in question was for a year, instead of eleven months and a fortnight, as stated by the pauper. It is true, that the other side may rely on The Queen v. the Inhabitants of North Bovey (2), where the ground of appeal being defective in particularity, it was attempted to supply the defect by connecting it with a statement in the examination. But there is this difference in the case cited, neither the statement in the examination, nor that in the ground of appeal, contained the essential allegation, that the service was for a year. If both could be connected, and looked at as one record, they would still fail to satisfy the requirements of the statute. Here, by connecting the two, there is a complete statement, perfect in all the necessary ingredients, of a settlement. On the whole question, the Sessions have decided that the particularity was sufficient, and this Court will be unwilling to disturb their decisionThe Queen v. the Inhabitants of Bridgewater (3).
(1) 1 Gale & Dav. 706; s. c. 11 Law J. Rep. (N.s.) M.C. 80.
(2) Ibid. 701; s. c. 11 Law J. Rep. (N.s.) M.C.
(3) 10 Ad. & El. 693; s. c. 10 Law J. Rep. (N.S.)
W. C. Rowe and Merivale, contrà.-The real question for the decision of the Court is, whether evidence can be admitted under a ground of appeal, admitted to be defective in essential particulars, by connecting the defective allegations in it with certain other allegations in the examination of the pauper, to which there is no express reference whatever. And this is distinctly denied by Patteson, J., in The Queen v. the Inhabitants of North Bovey, where a similar attempt was made: "If the ground of appeal had said expressly that the subsequent settlement had been gained by the hiring and service mentioned in the examination, a different question would have arisen. But as the notice now is, the hiring relied on by the appellants, may be a different hiring from that in the examination, for the examination is not referred to." Supposing that the ground of appeal in question were sufficiently explicit by itself, and that the appellants had tendered under it evidence of a different hiring with another Mr. Jackman, could the respondents have objected? Would not the answer have been, that the very absence of words of reference shewed that it was intended to rely on a different hiring? The suggestion of the Court in The Queen v. the Inhabitants of Bridgewater, that the Justices would do well to constitute themselves Judges of the requisite particularity in some instances, does not apply to cases where the Sessions find subject to a case, that is, where they themselves ask for the opinion of the Court above, on the question which they have had to try— The Queen v. the Inhabitants of Old Stratford (4).
LORD DENMAN, C.J.-The first impression on reading these documents might probably be, that the Jackman mentioned in them respectively, is one and the same, and that they are sufficiently connected. But, in fact, there are no words of reference; a person of the same name is mentioned in the examination and ground of appeal, but there is no averment of identity. That is precisely the same state of things which was presented to the Court in The Queen v. the Inhabitants of North Bovey, and I adhere to the opinion of Mr. Justice Patteson, as expressed there. It is (4) 2 Gale & Dav. 82; s. c. 11 Law J. Rep. (N.s.) M.C. 115.
very true, that in a small parish, and in the case of an uncommon name, there might be no danger of misleading; but the parish might be large, and the name familiar; and it is impossible to lay down different rules for the two cases. There was, therefore, nothing which the Sessions could inquire into; and as they have sent up a case for our opinion, we are bound to say that they have done wrong.
WILLIAMS, J., COLERIDGE, J., and WIGHTMAN, J. concurred.
Mandamus Judgment of Quarter Sessions-Grounds of Appeal-Adjournment.
Where the appellants, having delivered insufficient grounds of appeal, applied to the Court of Quarter Sessions to adjourn the appeal, and that Court refused, thinking they had no such power, and confirmed the order: -Held, that a mandamus would not lie to compel them to enter continuances and hear the appeal.
Whateley obtained a rule, on the 8th of November, calling upon the Justices of the county of Stafford to shew cause why a mandamus should not issue, commanding them to enter continuances and hear an appeal against an order of Justices for the removal of Hannah Harrison and her four children from the parish of Kingsley to the township of Ramson, in the said county. The rule was obtained on the affidavit of the attorney for the appellant parish. It stated, that the order for the removal of the pauper was served on the 29th of July; that notice of appeal was given on the 18th of August, and notice of the grounds of appeal on the 1st of October: the sessions were held on the 19th of October. Previous to the appeal being called on, the appellants ascertained that the grounds of appeal were too general, and they therefore instructed counsel to apply for leave to adjourn the appeal on payment of the costs of the day. NEW SERIES, XII.-MAG. CAS.
The chairman of the Quarter Sessions expressed his willingness to grant the application, if an authority for his doing so were shewn to him. The appellants' counsel then cited The King v. the Inhabitants of Kimbolton (1), but the Court, not considering that case to be an authority in point, refused to adjourn the appeal; and the appellants' counsel then admitting that they could not support their appeal on the grounds delivered, the order was confirmed. On moving for the rule, The King v. the Inhabitants of Kimbolton and The Queen v. the Justices of Derbyshire (2) were cited.
Valentine Lee now shewed cause.-In this case, notice of appeal was given on the 18th of August, and the grounds of appeal were not sent to the respondents until the 1st of October; the appellants had therefore ample time for preparing their grounds of appeal, and if this application should be granted, then in every case, when the appeal is brought on, if the grounds stated are thought insufficient, the appellants will apply to adjourn the appeal. The King v. the Inhabitants of Kimbolton is not in point; the Magistrates there granted a case for the opinion of this Court, and the question arose upon that case; but here the Magistrates have granted no case, but have confirmed the order, and this Court will not grant a mandamus to compel a court of competent jurisdiction to review their decision-The King v. the Justices of Monmouthshire (3), The King v. the Justices of Leicestershire (4). The case of The King v. the Inhabitants of Kimbolton shews, that where a sufficient notice of appeal has been served, but a defective statement of grounds of appeal, the Sessions are not bound to adjourn the appeal.
[WIGHTMAN, J.-The short point is, whether the Justices were bound to adjourn the appeal.]
Whateley, in support of the rule.—The chairman of the Quarter Sessions decided the point, on the ground that they were bound not to adjourn the appeal. Great
(1) 6 Ad. & El. 603; s. c. 6 Law J. Rep. (N.s.) M.C. 90.
(2) Ibid. 612; s. c. 7 Law J. Rep. (N.s.) M.C. 91. (3) 4 B. & C. 844.
(4) 1 Mau, & Selw. 442.
A complaint having been made against a pawnbroker, before a Police Magistrate, appointed under the statute 2 & 3 Vict. c. 72, the pawnbroker called his assistant as a witness, and he was sworn and examined before the Magistrate, who cautioned him against committing perjury. The case was subsequently dismissed from want of jurisdiction in the Magistrate, but he being dissatisfied with the evidence of the assistant, ordered him to be detained, without any complaint being made, and afterwards took bail for his appearance, as on a charge of perjury upon a subsequent day. Upon that day the parties attended; and the charge of perjury was gone into, and the Magistrate subsequently took the recognizance of the assistant, for his appearance to answer an indictment for perjury at the Central Criminal Court. A bill was preferred, but ignored. The assistant afterwards brought an action of trespass and false imprisonment against the Magistrate. The venue was laid in the county where the alleged trespass was committed, and the action was not commenced until more than three months after its commission, but within six months :Held, that the defendant was entitled to the statutory protection of the 53rd section of the
above act, which limits the time for commencing the action to three months after the fact committed, and also requires the venue to be laid in Middlesex, and that therefore the action was too late.
Whether the Magistrate acts bonâ fide, is a question for the jury; and if the plaintiff seeks to maintain his action, on the ground, that the Magistrate acted so illegally as to have disentitled himself to any notice of action, it lies on the plaintiff to cause this question to be put to the jury.
Whether the Magistrate might detain the party, on his own view, and hold him to bail for perjury, no direct charge or information having been laid before him-quære.
Trespass and false imprisonment against a Magistrate.
Plea-Not guilty, by statute.
At the trial, before Alderson, B., at the Spring Assizes for Kent, 1842, it appeared that the defendant was one of the Police
Magistrates, appointed to the Greenwich district, under the statute 2 & 3 Vict. c. 71.
On the 26th of July 1841, a complaint was made to the defendant, respecting some articles pledged with a pawnbroker, who was the master of the plaintiff. The parties, with the pawnbroker and the plaintiff, attended before the defendant the next day, when two witnesses having been heard for the complainant, the pawnbroker, in defence, called as a witness the plaintiff, who was about eighteen, on which the defendant cautioned him upon the obligation of an oath, and against committing perjury, and the plaintiff was then examined and deposed to facts quite contradictory of those sworn to by the two witnesses. The defendant was about to make an order for the restitution of the property, but there being no evidence to shew that a tender had been made of the principal and interest, as the act required, the complaint was dismissed. The defendant not being satisfied with the evidence given by the plaintiff, ordered him to be detained, and he was kept in another room in the office till some other business was disposed of, and in half an hour was again placed before the defendant; but the two witnesses, who had given evidence for the complainant, having then left the office, the pawnbroker was bound in a recognizance