369 Malicious Trespasses. [See stat. 1 G. 4. c. 56. title "Trespasses," 5 Burn, 643. et post.] Mandamus. REX v. The Justices of Worcestershire, M. 60 G. 3. 1 Chit. A mandamus Rep. 649. On motion for a rule to shew cause why a writ will not lie to of mandamus should not be issued, directed to the justices of justices in quar Worcestershire, commanding them to review certain evidence sub- ter sessions to mitted to them in quarter sessions, in a matter of appeal, on the review their decompel them to ground that the conclusion drawn by the magistrates was not war- cision on an ranted by the facts proved; the Court said, that no mandamus appeal, upon the would lie for any such purpose. The court of quarter sessions ground that the were the only judges of the effect of evidence laid before them, adjudication and if they drew a wrong conclusion from it, the court of K. B. ranted by the had no power to compel them to review their decision. In cer- evidence. tain cases a mandamus might lie to the sessions to admit evidence which had been rejected, but it was never heard of that the court of K. B. would interfere with their province of deciding upon the evidence. - R. R. was not war The court of K. B. has no jurisdiction to review the judg ment of the quarter sessions, except on a case sent up for their consideration; and, therefore, sions where the ses. sions, having heard the witnesses on one side, had refused to hear those on in an appeal, on the ground that their testimony had been prefaced by obser the other side Rex v. The Justices of the County of Carnarvon, M. 1 G. 4. 4 B. & A. 86. Motion for a rule nisi for a mandamus to be directed to the justices of Carnarvonshire, commanding them to enter continuances and to re-hear an appeal between two parishes, touching the settlement of a pauper. It appeared from the affidavits, that the appeal came on at the sessions on the 14th of July last, and that the appellants having admitted a prima facie settlement in parish A. relied upon the proof of a case of a subsequently acquired settlement elsewhere. Having finished their case, the attorney for the respondents proceeded to make observations upon the case proved by the appellants, and then offered to call witness to contradict it; but the Sessions refused to allow those witnesses to be called, on the ground that he had rested his case on his argument as to the insufficiency of the case proved on the other side, and thereupon they quashed the order of removal. The affidavits further stated, that the course pursued by the attorney for the respondents, was the usual and ordinary practice of the Sessions. In support of the motion it was contended, that the refusal on the part of the sessions to hear the witnesses was, in fact, a refusal to hear the appeal altogether, in which case it was every day's practice for the court of K. B. to direct the sessions vocate, contrary by mandamus to hear and decide the question. BAYLEY J. to their usual There is no instance, I believe, which can be found where the practice, the court of K. B. have interfered by mandamus, to direct the justices court refused to to re-hear an appeal which they have once already heard. In grant a man · damus to rehear this case they entered into the consideration of this appeal, and, the appeal. after having heard it, they have decided that the respondents ought not to be allowed to call witnesses in reply. It is possible that in that decision they may have been wrong; but it seems to me that we are not at liberty to enter into that question, as no case has been sent up for our consideration. If we were to do so, we should constitute this court a court of appeal from the quarter SUPP. BB - vations on the part of the ad Rex v. The narvon. sessions, and we should have applications continually made to us Justices of Car- to overturn their determinations, on the ground of the improper reception or rejection of evidence, and be called upon to review their judgment, although no case has been sent to us for that purpose. It is the duty of sessions to hear and decide, and, if they entertain any doubts, to submit them to this court, but where they do not desire our interference, we have no jurisdiction. HOLROYD J.-If it had appeared in this case, that the sessions had heard one side, and had altogether refused to hear the other, I should have thought it the same as if the case had not been heard at all, and I should then have been of opinion that this mandamus ought to issue; but, in this case, it appears to me that this was merely a question as to the practice of the sessions, who have determined that the evidence tendered ought not to have been introduced with observations on the part of the advocate. I think, therefore, that this court has no jurisdiction to interfere in such a case. R. R. Rex v. The Justices of Middlesex, H. 1 & 2 G. 4. 4 B. & A. 298. In last M. T. a rule nisi was obtained for a writ of mandamus, to R. B. and J. M. esquires, two of the justices of the peace for the county of Middlesex, commanding them to make an order on the churchwardens and overseers of the poor of the parish of Christ Church, for the relief of a bastard child, residing in the parish of St. Stephen's, Coleman Street, in the city of London. It appeared by the affidavits, that Alice Ramsey, a single woman, being resident in the parish of Christ Church, became pregnant with a bastard child, and that, on the 4th of August, 1820, she was, by an order under the hands and seals of two justices, directed to be removed to the parish of Bilderston, in the county of Suffolk, as the place of her last legal settlement. On the same day, however, in consequence of her advanced state of pregnancy, the execution of the order was suspended, and she was delivered of the bastard child in question, in the parish of Christ Church, on the 5th of August. The order was never served on the parish of Bilderston, nor was the pauper ever removed thither; but on the 14th of September, she was, at the instance of the parish officers of Christ Church, who bought the ring and paid the marriage fees, married to Thomas Ramsey, the putative father of the child. No order of bastardy was ever obtained against Thomas Ramsey, who was a settled inhabitant in the parish of St. Stephen's, Coleman Street, and with his wife and the child, chargeable to that parish. After argument, the court took time to deliberate, and afterwards ABBOTT C. J. delivered their opinion. We have considered this question, and we are all of opinion, that this court ought not to grant a mandamus in the present case. It is the ordinary practice of the court to grant this writ, to compel magistrates to hear and determine a case in which they have a jurisdiction to hear, but have refused altogether to exercise it: but there is not an instance which can be cited, where the court have granted a mandamus to justices to compel them to come to any particular decision, which would be the case, if we were, upon the present occasion, to order them to make an order of maintenance upon the parish of Christ Church. We had at one time thought that it might be desirable to give our opinion as to the merits of this case, for the guidance of the magistrates, but upon re-considering the matter, we think that we ought not to give an extra-judicial opinion upon the case. Upon the ground, therefore, that we think the court Rex v. The have no power to grant a mandamus to the magistrates, to compel Justices of them to make such an order of maintenance, we are all of opinion Middlesex. that this rule ought to be discharged. R. D. Marriage. [3 G. 4. c. 75. (a)] BY stat. 3 G. 4. c. 75. intituled "An act to amend certain pro- 3G.4. c. 75. visions of the 26th of George the second, for the better preventing of clandestine marriages," passed 22d July, 1822: (a) The following is an authentic copy of an Opinion given by Dr. Phillimore, upon certain queries submitted to him on the construction of this act : "I will endeavour to answer the several questions in the order in which they are put; and to prevent any misapprehension, I will prefix to each answer my understanding of the purport of the question. 66 First, Whether, in cases where the publication of banns has been completed before the 1st of September, but the marriage has not taken place, the banns must be republished? To this I should reply, that I see no necessity for any such re-publication. The new law, as far as it affects marriages by banns, has no effect or operation whatsoever till the 1st of September; in the case stated, therefore, antecedently to that day, the publication will have been completed according to the strictest provisions of the existing law; and on proof of their having been so completed, the clergyman, I apprehend, will be fully justified in the performance of the ceremony. Consequently, I am of opinion that a clergyman may securely proceed to the solemnization of matrimony in all cases where the banns have been published in exact conformity with the law actually in force on the three Sundays preceding the 1st of September. "Secondly, Whether, in cases where the publication of banns has taken place on two Sundays previous to the 1st of September, the clergyman may proceed with the banns, and conclude them on that day? Perhaps there is rather more difficulty in answering this than the former question, because, from the absence of any precise provision as to this point in the statute, the clergyman, to a certain extent, is called upon to exercise more discretion in the one instance than in the other; but in my judgment he will exercise that discretion most soundly, if he gives effect and validity to all the publications of banns which have taken place in conformity with the law as it subsisted on the three several Sundays on which they were made. Every such publication must, I think, be considered as legally made. The two first publications, therefore, would be pro tanto good: but the third, being made on the day on which the operation of the new act commences, must not be proceeded upon till the requisites enjoined by that act shall have been complied with. "I am aware that, technically speaking, all the requisites cannot by such a course of proceeding have been observed. The names, for instance, cannot have been affixed for three Sundays to the church door; but in cases of this description, in acting upon the law, we must put a rational construction on it, and approach, ci prés, as nearly as we can, to an adequate execution of it. "It may be satisfactory, also, both with respect to this and the preceding question, to observe, that the validity of any marriage solemnized under such circumstances can never be impugned, or called in question with effect, on either of these grounds, inasmuch as the 19th section precludes all inquiry as to the sufficiency of these forms after the actual solemnization of any marriage. "Thirdly, Whether, as the living is within a peculiar jurisdiction, marriages can still be performed there by licence? "I certainly understand the 14th section of the new act, by restricting the power of granting licences to Archbishops and Bishops, virtually to have excluded peculiar and exempt jurisdiction, from issuing such instruments; but the act goes no further therefore, I presume, that, in your parish, as in all other parishes situated within a peculiar jurisdiction, there can be no doubt but that a licence from the Archbishop of Canterbury will dispense with the publication of banns. In the meantime, it is extremely advisable that any persons who, since the passing of the act, may have been married by a licence, from a peculiar ju S G.4. c.75. Certain parts of 26 G.2. relating to consent, repealed. Marriages solemnized by licence, without consent as re quired by recited act, &c. if not otherwise in valid, shall be deemed good. §1. After reciting that whereas it is, amongst other things, provided, by stat. 26 G. 2. c. 33. for the better preventing of clandestine marriages, that all marriages solemnized by licence after the 25th of March, 1754, where either of the parties (not being a widower or a widow) shall be under the age of 21 years, which shall be had without the consent of the father of such of the parties so under age (if then living) first had and obtained, or if dead, of the guardian or guardians of the person of the party so under age, lawfully appointed, or one of them, and in case there shall be no such guardian or guardians, then of the mother (if living and unmarried), or if there shall be no mother living and unmarried, then of a guardian or guardians of the person appointed by the court of Chancery, shall be absolutely null and void, to all intents and purposes whatsoever: and whereas great evils and injustice have arisen from such provisions; for remedy hereof, it is enacted, that so much of the said statute as is herein-before recited, as far as the same relates to any marriage to be hereafter solemnized, shall be and the same is hereby repealed. § 2. Enacts, that in all cases of marriage had and solemnized by licence before the passing of this act, without any such consent as is required by so much of the said statute as is herein-before recited, and where the parties shall have continued to live together as husband and wife, till the death of one of them, or till the passing of this act, or shall only have discontinued their cohabitation for the purpose, or during the pending of any proceedings touching the validity of such marriage, such marriage, if not otherwise invalid, shall be deemed to be good and valid to all intents and purposes whatsoever. §3. Provides and enacts, that nothing in this act contained shall extend or be construed to extend to render valid any marriage declared invalid by any court of competent jurisdiction, before the passing of this act, nor any marriage where either of the parties shall at any time afterwards, during the life of the other party, have lawfully intermarried with any other person. § 4. Provides also, that nothing in this act contained shall be taken or deemed to render any marriage valid, the invalidity of which has been established before the passing of this act, upon the trial of any issue touching its validity, or touching the legitimacy of any person alleged to be the descendant of the parties to such marriage. § 5. Provides also, that nothing in this act contained shall be taken or deemed to render valid any marriage, the validity of which, or the legitimacy of any person alleged to be the lawful descendant of the parties married, has been duly brought into question in proceedings in any causes or suits in law or equity in which judgments or decrees or orders of court have been pronounced or made, before the passing of this act, in consequence of risdiction, should forthwith be re-married, either by banns or under a licence granted by competent authority. « Finally, in giving this opinion, I beg to explain that I know nothing (as seems to be insinuated in the statement of the case) of the intention of the framers of any one of the provisions to which my attention has been directed. The interpretation I have put upon them, arises solely from the best consideration I have been able to apply to the statute, and to the general bearing of the marriage law of this part of the United Kingdom. "Doctors' Commons, August 12, 1822." "JOSEPH PHILLIMORE.' or from the effect of proof in evidence having been made in such 3G.4. c. 75. causes or suits of the invalidity of such marriage, or the illegiti macy of such descendant. §6. Provides and enacts, that if at any time before the passing Property or title of this act, any property, real or personal, has been in any manner of honour on possessed, or any title of honour has been in any manner enjoyed the ground of invalidity of by any person or persons whomsoever, upon the ground, or upon marriage, not the pretence, or under colour of the invalidity of any marriage, by affected by this reason that it was had and solemnized without such consent as act. aforesaid, then and in such case, although no sentence or judgment has been pronounced in any court against the validity of such marriage, the right and interest in such property or title of honour shall in no manner be affected or prejudiced by this act, or any thing herein contained, but shall remain and be the same to all persons, and to all intents and purposes, as if this act had never been made. § 7. Provides and enacts, that nothing in this act contained Not to affect shall extend or be construed to extend to affect or call in question any thing done any act done before the passing of this act under the authority of under the auany court, or in the administration of any personal estate or effects, thority of any or the execution of any will or testament, or the performance of any trust. § 8. Enacts, that no licence for any marriage shall, from and after the 1st day of September in the year of our Lord 1822, be granted by any person having authority to grant the same, until oath (a) shall have been made by the persons and to the effect required by this act; and if such licence shall be required for the marriage of parties, both or either of whom shall be alleged to be of the age of 21 years, such parties shall respectively make oath, that they are respectively, and that each of them believes the other to be, of the full age of 21 years or upwards; and if both parties shall be under the age of 21 years, but shall be alleged to be a widower and widow, then each of such parties shall make oath accordingly, as to himself and herself, and as to his and her belief with respect to the other party; and if one of the parties shall be of the age of 21 years, but the other party shall be under that age, and a widower or widow, both parties shall make oath accordingly, as to himself and herself, and as to his and her belief with respect to the other party; and if both or either of the parties shall be under the age of 21 years, not being a widower or widow, both of such parties shall make oath accordingly, as to himself and herself, and as to his and her belief with respect to the other party; and in such case both parties shall also make oath that the person or persons whose consent shall be required by law to the marriage of such parties has been given, and has been signified in the manner required by this act; and if both or either of the parties shall be alleged to be of the age of 21 years, such licence shall not be granted until there shall be produced, to the person from whom such licence shall be required, an extract or extracts from the register of the baptism of such parties or party so alleged to be of the age of 21 years, if such register shall be in England, and can be found; and each of such extracts shall be proved upon oath by some other person or persons, to be a true extract from such register, and to relate to the baptism of the (a) See Forms, post, 578-382. court, &e.. No licence to the effect herein |