1847.

THE QUEEN

v.

UPTON ST. LEONARD'S.

of Mr. Walters was sufficient to influence the jury in their determination. It is sufficient to vitiate their pro

Inhabitants of ceedings if a party thus interested has interfered, and taken a part in the deliberations of the grand jury. Regina v. The Justices of Hertfordshire (a). The suggestion, that the fine to be enforced on the inhabitants, if found guilty on the information, could not be expended in repairing the highway, is sufficiently answered by a reference to the Highway Act, 5 & 6 Will. 4, c. 50, s. 96, "That no fine, issue, penalty, or forfeiture for not repairing the same shall hereafter be returned into the Court of Exchequer, but shall be applied towards the repair and amendment of such highway." These words clearly include the case of a prosecution by information. If, on facts like these, the party aggrieved is not allowed to file an information, the Court will in effect wholly deprive the subject of the benefit of this ancient and well-established mode of procedure.

Cur. adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court. This was an application of a peculiar kind. A road indictment having been ignored by the grand jury, the prosecutor asked leave of this Court to file a criminal information against the inhabitants of the two parishes in which the road lay. The affidavit produced by him stated that two gentlemen, possessing landed property in the parishes, attended on the grand jury, and took an active part towards throwing out the bill; and a witness who came before them said, that he heard one of these gentlemen inform his brother grand jurors that the road was useless. Before the assizes, the same gentleman had been applied to, as a magistrate, on the propriety of presenting the road as being out of repair;

(a) Ante, Vol. 1, p. 470; 6 Q. B. R. 753.

and he had discountenanced a proposal to refer the question of liability to a barrister, on the ground that it was much fitter for the decision of a Judge. None of these facts are denied; but these two gentlemen swear, in the same very general terms, that they took no undue part in the proceeding; and the foreman and another member of the grand jury state, in their affidavit, that the two gentlemen did nothing unusual on that occasion.

Now, the bona fides of the proceeding against the parishes is undoubted, and there is a strong case as to the road being a highway, and the parishes liable. This case is one which the prosecutor had a right to bring before a jury for decision; and we are of opinion that he has been improperly obstructed in the exercise of that right. We do not impute any improper motives to those who interfered in the manner described, nor express any opinion on the merits of the case, which may possibly receive an answer; but we think the connexion of these gentlemen with the parishes indicted ought to have prevented them from taking any part in the discussion in the grand jury-room, whether the bill should be found by the grand jury or not. That statement of the inutility of the road, although it would be irrelevant, was not unlikely to influence the grand jury in their decision. No imputation whatever is cast on that body at large; but two or three members of it, whose affidavits are produced, state no more than that they individually were not aware of any peculiar activity in the parties whose conduct is called in question. The circumstances appear to us to be so irregular, and so inconsistent with the due administration of justice, that this Court is bound, in the exercise of its controlling power, to place the matter in a proper train for impartial investigation. The rule accordingly must be made absolute. Rule absolute.

1847.

Feb. 10th. THE QUEEN V. The Inhabitants of EAST STONEHOUSE.

The examina- ON appeal against an order of two justices for the

tions on which

an order of removal was made, stated a settlement by apprenticeship, and secondary evidence of the indenture, which was lost, by an extract from the register of parish apprentices,

kept under the

42 Geo. 3,
c. 46, which
contained an
entry of two

removal of Maria Johns, wife of William Johns, alias William Smith, and her four children, from the parish of East Stoneham, in the county of Devon, to the parish of Milverton, in the county of Somerset, the sessions quashed the order, subject to the opinion of this Court on the following case:

The examinations, which purported to set up a settlement by apprenticeship of William Johns in the appellant parish, shewed, in the opinion of the sessions, sufficient search for the indenture of apprenticeship, so justices assent that its loss might be presumed, and secondary evidence of the binding given; and the examinations, so far as peal against the they are material to the point in this case, were as follows:-

ing to the bind

ing. At the

trial of an ap.

order, the ses

sions found

that the exam

inations were

insufficient, as, though it appeared from them that the

justices had allowed, by signing and sealing, an indenture, which indenture recited an order for binding under the 56

Geo. 3, c. 139,

there was no sufficient legal evidence in them of a parish apprenticeship:

Held, that the sessions were

right.

of

William Johns said: "I resided with my mother, Thomasine Johns, until I was about ten or eleven years age, when I was bound out as a parish apprentice by the parish officers of Chipstable, in the county of Somerset, to Robert Besley, a farmer, residing in the parish of Milverton, in the said county, to serve him until I attained the age of twenty-one years."

Charles Surrage said: "I am one of the overseers of the poor of the parish of Chipstable, in the county of Somerset. I produce a, book, being a register of the poor children bound apprentice since the 1st day of June, 1802, by the overseers of the poor of the parish of Chipstable. At No. 29 of the said book is the record, under date of the 7th day of April, 1823, of the binding out one William Smith, a male, aged ten years, described as a bastard child of Thomasine Vicary and

William Smith, the mother residing at Chipstable, to Robert Besley, a farmer residing at Milverton, until he attained the age of twenty-one years. The names of the overseers, parties to the said indenture, were John Daveys and James Rogers; the magistrates assenting to the binding, and whose names are affixed, signed by themselves, are John Halliday, L. St Aubyn.

The following was the extract from the register-book produced by Charles Surrage, and sent to the appellants with, and forming part of the examinations :

:

1847.

THE QUEEN

v.

Inhabitants of

EAST STONEHOUSE

Register of Parish Apprentices,---Parish of Chipstable.

Thomasine Vicary said:" My maiden name was Johns. Previously to my marriage with my present husband, I had an illegitimate child, called William Johns. In the year 1823 he was bound as parish apprentice, by the name of William Smith, the name of his father, by the parish officers of Chipstable, to Mr. Robert Besley, a farmer residing at Hurstone Farm, in the parish of Milverton."

The following was the material ground of appeal:"That the examinations whereon the order was

1847.

THE QUEEN

v.

Inhabitants of
EAST
STONEHOUSE.

made are bad, because they contain insufficient, illegal, and inadmissible evidence of the apprenticeship therein mentioned, and also of the relief therein stated to have been given to the said Maria Johns. And the examinations are also bad, because they fail and omit to shew, by sufficient statement of facts, and by proper and legal evidence of such facts, the place of legal settlement of the said Maria Johns and her children to have been in our parish of Milverton at the time when the order was made, and even fail to shew that either the said Maria Johns or her said husband ever acquired or had a settlement in our parish of Milverton."

Upon this, the appellants objected that the examinations were insufficient, inasmuch as William Johns was stated to be a parish apprentice, and it did not appear, on the face of the examination, that any order of justices had been made declaring the said Robert Besley to be a fit person to whom he might properly be bound apprentice, nor that any order was made by the justices that the overseers of Chipstable should be at liberty to bind him apprentice accordingly; nor (supposing such an order to have been duly made) that the justices making such order signed their allowance of the indenture, according to the directions of the statute 56 Geo. 3, c. 139.

The sessions were of opinion that the examinations did not contain sufficient legal evidence of a parish apprenticeship, inasmuch as it did not appear, on the face of them, that any such order had been made, although they were of opinion that it did appear from them that the justices had allowed, by signing and sealing, an indenture, which indenture recited an order; there being at the same time no other evidence that an order ever was made: and thereupon quashed the order of removal.

The question for the opinion of this Court is, whether sufficient legal evidence of a parish apprenticeship