spoon. The cadet proceeded to India in the following December. It further appeared in evidence that according to the usual course of proceedings in such cases, the cadet having received a nomination proceeded to India, and on his arrival there, and not before, received his commission as an officer in the company's service (2). (2) The following is the form of petition and nomination: Madras or Bombay. To the Hon. Court of Directors of the East India Company. The humble petition of William White Wotherspoon sheweth that your petitioner is desirous of entering the military service of the company as a cadet for the Madras Infantry, to which he has been nominated by Sir William Young, Bart., at the recommendation of his father, and should he be so fortunate as to appear to your Honours eligible for that station, promises to conduct himself with fidelity and honour. That your petitioner has been furnished with the Articles of War, as also the terms and the resolutions of the Court of the 9th of August 1809 and the 7th of March 1823, by which latter resolution it is required that he shall "as a condition to his appointment subscribe to the Military Fund at his respective Presidency," to which he promises faithfully to conform, as also to all the rules, orders and regulations which have been or may be established by the Hon. Court, or the Governor and Council at the Presidency to which he is appointed. Immediately following this was the declaration of the defendant Sir William Young : "Director's Nomination.-I, Sir William Young, Bart., being one of the Directors of the East India Company, beg leave to present the petitioner, William White Wotherspoon as a cadet for the Madras Infantry on one of my nominations for the season, provided he shall appear to you eligible for that station; and I do declare that from the character given of him by his father, who certifies that he is well acquainted with his family, character and connexions, he is in my opinion a fit person to petition the East India Company for the appointment he now solicits. "Recommended to me by his father. "William Young. "Examined and passed the 27th of November 1844 by J. C. W. A. H. St. G. T." The examination of the cadet was signed at the foot by the defendant Sir William Young, and was as follows: "Instructions for filling in the answer.-The answers to the following questions must be written by the cadet himself. in the presence of one of the clerks of the Cadet Office. "Examination of [here insert your names] Cadet William White Wotherspoon. "Insert name of the director, and against the answer write the name of the person who recommended you to the director. It was objected, on behalf of the defendants, that a cadetship was not an office, commission, place or appointment within the meaning of the statute 49 Geo. 3. c. 126, as until the cadet arrived in India he took nothing which could answer any of the above descriptions. Lord Denman, C.J. was of opinion that it was an office and employment in the East India Company's service within the act of parliament, and directed the jury accordingly. The defendant Charretie was found guilty on the first and seventh counts, and the defendant Sir W. Young on the seventh. On the defendants being brought up for judgment, in the ensuing Hilary term, Crowder, on behalf of Charretie, and Cockburn on behalf of Sir W. Young, obtained a rule nisi for a new trial, on the ground that his Lordship misdirected the jury in telling them that a cadetship was an office or employment, and also on the ground that his Lordship should have told the jury that upon the facts proved there had not been the sale of an office within the 3rd section of the 49 Geo. 3. c. 126, but that if any offence at all had been committed it fell within the 4th section of the statute as being a taking of money for negotiating to obtain the consent of Sir W. Young to the nomination (3). "These questions must be answered decidedly, as by the Resolution of Court of the 9th of August 1809 you will be subject to dismission if your appointment has been obtained by improper means. Question. Do you believe that any person has received or is to receive any pecuniary consideration, or anything convertable in any mode into a pecuniary benefit on account of your nomination? "Answer. No. "Question. Are you aware that if it should be hereafter discovered that your appointment has been obtained by improper means, you will be dismissed and rendered ineligible to hold any situation in the company's service again? "Answer. Yes. "Cadet's signature, Wm. W. Wotherspoon. "I do hereby declare, to the best of my belief, that the petitioner's answers to the foregoing questions are correct. "Signed, Wm. Young." (3) There were counts in the indictment to meet that view of the case, but on those an acquittal was taken. VOL. XVIII.] THE DUTIES OF MAGISTRATES. Sir J. Jervis (Attorney General), Sir F. Thesiger, Sir D. Dundas, Clarkson, Peacock and Forsyth shewed cause (4).-The point made by the defendants arises on the 49 Geo. 3. c. 126. s. 3, and is whether a cadetship in the East India Company's service 66 an office, falls within the description of commission, place or employment," in that section of the statute. It is said that a cadetship is only something which may ultimately lead to a commission on the arrival of the cadet in India; but even if so it will be an office or place. A cadetship is a known recognized thing to which an appointment may be made-33 Geo. 3. c. 52. ss. 59, 60, and is therefore within the purview of the statute; and if this were not so, the whole of the military and perhaps civil service of India would be excluded from the provisions of the act. Secondly, it is argued, that because Sir William Young had no power to confer the cadetship himself, there is no offence comBut it is not mitted within the statute. alleged that he was the person who was to give the place; it is expressly said to be in the gift of the East India Company. There is, however, no doubt on the evidence that Sir W. Young had the power of nominating to the place, and it is that for which the Crowder and Warren, in support of the rule. First, a cadetship does not fall within No the terms of this highly penal statute. evidence has been given to shew what a cadetship really is, and the Crown is bound to establish beyond all doubt, and not by mere inference, that an offence has been coma place," but that mitted. It is said to be " means a situation having some rights or duties attached to it, whereas all that a cadet has is something which may enable him to get something else. Suppose after he lands, and before he gets his commission, he changes his mind and comes back, or destroys the document he receives from the India House, what remedy have the company against him? a [COLERIDGE, J.-The paper speaks of his entering the military service as cadet.] [ERLE, J.-Surely if instead of going to India he goes to New York, he loses his appointment. I am quite at a loss to find any definition of a place which will exclude a cadetship; and it is clearly worth 1,000l. in this case.] The nomination may be worth that sum. Then it is not an office, appointment or commission. An office within the 5 & 6 Edw. 6. c. 16. is an office of profit. An office, as defined by Blackstone, 2 Com. 36, is "a right to exercise a public or private appointment, and take fees, &c." A cadet has no rights or duties till he arrives in India; and he is not liable to a court-martial. The 33 Geo. 3. c. 52. is the first statute which The 57th money was paid in the first instance. The title to the cadetship rests solely on that nomination. Supposing the sale of this cadetship were legal, it would be no answer to an action by Sir W. Young to say he had no power to sell-Hibblewhite v. M'Morine (5). But it is also said that section 4. of the statute draws a distinction between a complete appointment and interest for an appointment, and that the offence ought to But the be charged under that section. answer is, that the money was paid to buy not merely the interest of Sir W. Young, but the appointment itself by virtue of his nomination. It is equally a corrupt bargain, waiting for a post." Secondly, the office (if whether it be made for the appointment itself or for the interest to obtain it. It may be that if the defendants are guilty of an offence under section 3. they are necessarily also guilty under section 4. (4) Nov. 20, before Lord Denman, C.J., Coleridge, J., Wightman, J. and Erle, J. (5) 5 Mee. & W. 462; s. c. 8 Law J. Rep. (N.s.) Exch. 271. speaks of "cadets" by name. it be one) was not in the gift of Sir W. Young, but in that of the court of directors. How could it be said that Sir W. Young sold the office? He could only avail himself of his nomination, and that, if anything, was the subject of the bargain. Lastly, the first count was not proved; it is framed under section 3, and the evidence applies to The preamble of a charge under section 4. the act shews that section 3. points to a receiving of money by persons who have places to dispose of, whereas section 4. relates to a trafficking by persons who have not the disposal of the places. Here the proof is, that the cadetship is in the gift of the company. Sir W. Young has the power of nominating, but Capt. Charretie is the person soliciting. The statute draws a distinction between the nomination and the appointment. This, if an offence at all, should have been properly laid as a conspiracy to sell the nomination of Sir W. Young. The allegation in the first count, which it is necessary for the prosecutor fully to make out, is that the defendant, J. Charretie, corruptly received 2,000l. from W. W. for the appointment and nomination of W. W. W. to a certain office, but the defendant Charretie had not the nomination. The 3rd section, on which the count is framed, is clearly only intended to meet cases in which the party who receives the money has a controul over the office. It was necessary also to prove that a cadetship falls within all the descriptions in the statute, viz., that it is an office, appointment, place and commission. In The Queen v. Williams (6) the prisoner was indicted for forging a certain It ployment of a cadet in the East India Company's service. The only question remaining, after much ingenious discussion at the bar, was, whether a cadetship was proved at the trial to fall under any one of those descriptions. The money must be paid for the nomination. It was perfectly clear from the official documents themselves, that the directors have the power to nominate, and that in this instance the director's "nomination" was made in favour of W. W. W, whose father paid 1,000l. for it, as a cadet for the Madras infantry. A proviso to the nomination is annexed to it, "provided he shall appear eligible for that station." But all nominations are made subject to that condition. In determining whether a cadetship falls within the act as an office, commission, place or employment, we must consider the object of the enactment. was undoubtedly to prevent all corrupt bargains for the sale of patronage in matters of public concernment, and with that view it is immaterial to inquire whether that to which the nomination is sold can be described with most critical correctness by any of those terms. Each of them may have an appropriate technical meaning, and yet may with sufficient accuracy answer the general intention of the act. To this extent we think the description right. In common parlance, we should not ordinarily say that a military officer holds an office, or that a Judge holds a commission, yet that language might properly be used respecting them; and the words, "a place and employment" are so general as to comprehend those and every other advantageous position that the party can gain by nomination to a specific thing. A cadetship in the Madras infantry is truly described by each of these words, and plainly each of these here only relates to one place and one transaction. We think the indictment therefore fully proved. We ought to add, that our judgment has been delayed by accidental circumstances, not by any doubt which we have felt. Judgment for the Crown. Lunatic-Order of Maintenance of Criminal Lunatic-3 & 4 Vict. c. 54. An order by two Justices under stat. 3 & 4 Vict. c. 54, directing a weekly payment to be made by the guardians of a union for the maintenance of a criminal lunatic whose settlement is adjudged to be in one of the parishes of such union, need not in terms direct the payment to be made on behalf of such parish, if the order recites all the facts necessary to establish the liability of such parish. The following order, made under the 3 & 4 Vict. c. 54, had been brought up by certiorari for the purpose of being quashed. Berkshire, to wit. Whereas at the General Quarter Sessions of the Peace, holden in and for the county of Berks at Abingdon in the said county on Monday the 4th day of January 1847, upon the trial of one John Smith being then and there indicted for a certain felony by him alleged to have been committed, it was given in evidence that the said John Smith was insane at the time of the commission of such offence, and the said John Smith was thereupon acquitted of the said felony by the jurors sworn to try the same, and it was specially found by the jurors aforesaid on the said trial that the said John Smith was insane at the time of the commission of the said felony, and the said jurors thereupon declared that they acquitted the said John Smith of the said felony on account of such insanity, whereupon it was ordered by the Court in pursuance of the statute in such case made and provided that the said John Smith should be kept in strict custody in Her Majesty's gaol at Reading in and for the said county until Her Majesty's pleasure should be known touching the custody of the said John Smith; and whereas the said John Smith now is a criminal lunatic kept in custody in Her Majesty's gaol at Reading in and for the said county under and by virtue of the above recited order of the said Court of Quarter Sessions; and whereas we, Richard Fellows and George Beauchamp, Esquires, whose hands and seals are hereunto affixed, two of Her Majesty's Justices of the Peace in and for the said county, NEW SERIES, XVIII.-MAG. CAS. have this day inquired into the circumstances and place of the last legal settlement of the said John Smith, by the best legal evidence that could be procured under the circumstances of the personal legal disability of the said John Smith and particularly by the oath of one Sophia Smith of the parish of Newbery, in the said county, widow, the mother of the said John Smith; and whereas it appears to us, as well upon the oath of the said Sophia Smith as otherwise, that the said John Smith is not possessed of sufficient property which could be applied to his maintenance, and that the place of his last legal settlement is the parish of Newbery aforesaid in the county of Berks; now we, the said Justices, upon due consideration of all and singular the premises, do hereby adjudge the parish of Newbery to be the place of the last legal settlement of the said J. Smith.-The order then recited a warrant from Sir George Grey as Secretary of State for the Home Department, by which, after reciting the 1st section of the 3 & 4 Vict. c. 54, the trial and acquittal of the lunatic and his confinement in Reading Gaol, and that an asylum at Devizes, in the county of Wilts, had been recommended to him as a fit and proper receptacle for the said lunatic; and that it had been certified to him by two Justices of the Peace that they intended to make an order upon the Newbery Union in the county of Berks, in which the said lunatic has been adjudged to be settled, for the weekly maintenance of the said lunatic in a lunatic asylum, he directed his removal to the said lunatic asylum. The order then proceeded as follows:-Now we, the said Justices, upon proof before us of all and singular the premises, do hereby further order and direct upon the guardians of the Newbery Union being a union declared by the Poor Law Commissioners, within which the parish of Newbery aforesaid is comprised, to pay weekly and every week from and after the 26th day of September next, to Thomas Phillips, the proprietor of the said lunatic asylum, the sum of 10s., which we do hereby adjudge to be a reasonable charge for the maintenance of the said John Smith in the said lunatic asylum, and which the said Thomas Phillips, the proprietor thereof, is willing to receive in that behalf for and during so long a time as the said Р John Smith shall continue in custody in the said lunatic asylum by virtue of the said order of the Secretary of State as aforesaid, the first payment of the said weekly sum of 10s. to commence on the 3rd day of October 1848. Given, &c. Fitzherbert (Jan. 16,) moved to quash the order. The order should have been made under section 2, and should have directed the payment to be made on behalf of the parish (1). The parish would then be properly ascertained, and the guardians be able to debit that parish with the amount. The guardians are only trustees for the different parishes, and unless expressly ordered to make this payment under section 2. they will be unable to charge it to the parish. It is important that the order should be made (1) The material words of section 2. are as follows:-"It shall be lawful for such two Justices, or any other two Justices of the Peace, of the county, city, borough, or place where such person is imprisoned, to inquire into and ascertain, by the best evidence or information that can be obtained under the circumstances of the personal legal disability of such insane person, the place of the last legal settlement, and the pecuniary circumstances of such person; and if it shall not appear that he or she is possessed of sufficient property which can be applied to his or her maintenance, it shall be lawful for such two Justices, by order under their hands, to direct the overseers of the parish where they adjudge him or her to be lawfully settled, or in case such parish be comprised in a union declared by the Poor Law Commissioners, or shall be under the management of a board of guardians established by the Poor Law Commissioners, then the guardians of such union, or of such parish (as the case may be), to pay on behalf of such parish, in case of any person removed under this act, all reasonable charges for inquiring into such person's insanity, and for conveying him or her to such county lunatic asylum or receptacle for insane persons, and to pay such weekly sum as they or any two Justices shall, by writing under their hands, from time to time direct for his or her maintenance in such asylum or receptacle, in which he or she shall be confined." The 7th section, after reciting the 9 Geo. 4. c. 48. s. 54. as to the order of maintenance by the Secretary of State, repeals that enactment, and enacts, "that it shall be lawful for such two Justices, by order under their hands, to direct the overseers of the parish in which they shall adjudge such insane person as last aforesaid to be legally settled, or in case such parish shall be comprised in a union declared by the Poor Law Commissioners, or shall be under the management of a board of guardians established by the Poor Law Commissioners, then the guardian of such union or parish, as the case may be, to pay such weekly sum for the maintenance of such person as they or any two Justices shall, by writing under their hands, direct." under that section, or at least under the two sections together, as there does not seem to be any appeal against an order made under the seventh section alone, for the appeal is given by the fourth section, and refers in terms only to orders made by the Justices aforesaid. [ERLE, J.-Is not the effect of the order to make the guardians liable as intermediate parties with an implied power to obtain repayment from the parish?] Cur. adv. vult. ERLE, J. now (Jan. 26,) delivered judgment.-A rule nisi for quashing an order on the guardians of the Newbery Union, to pay the maintenance of a criminal lunatic in an asylum, was moved for on the ground that such order did not direct the payment to be on behalf of the parish. But inasmuch as the order recites all the facts establishing the liability of the parish, so that a payment in obedience to such order will be a payment on behalf of the parish, and chargeable thereto, and as a new order containing the required addition would only have the effect of expressing more clearly this liability, I see no sufficient reason for quashing the present order. 1849. Jan. 30. Rule refused. THE QUEEN v. THE JUSTICES OF HARWICH, in re RUSSELL. Information-Jurisdiction of Magistrates -Conviction. a Where an act of parliament in one section provided that all penalties imposed by it should be recoverable by information before two Justices, and in another section provided that where an information was laid before one Justice, such Justice should issue summons for the appearance of the party before two Justices, and the form of information given by the schedule to the act recited the appearance of the informant "before us, two of her Majesty's Justices," -Held, that an information exhibited before one Justice was sufficient, and that two Justices were thereupon bound to hear it. Sir J. Jervis (Attorney General) had obtained a rule calling on certain Justices of the borough of Harwich, and the defendant |