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NEW SESSIONS CASES.

Court of Queen's Bench.

HILARY TERM, 1844.

1844.

THE QUEEN v. Lord GoDoLPHIN and Another. January 12th. This was a motion for a mandamus to compel the Where a poor.

rate had been defendants, two of the justices of Cambridgeshire, to made and sign and allow a rate, or assessment, made for the relief signed by the

overseers only of the poor of the parish of Cottenham on the 8th of of a parish,

the churchDecember last.

wardens not

having been From the affidavits it appeared, that there were two sworn, and the overseers and two churchwardens in the parish; but that justices refused the churchwardens had never been sworn, and had not account of its

not being signed acted. The rate had been made by the overseers, and by a majority signed by them; but the justices refused to sign and officers, a manallow it, because it was not signed by a majority of the damus issued

commanding parish officers. It also appeared that the overseers had the justices to

sign and allow already expended 501. in the relief of the poor, and had the rate. no other means of reimbursing themselves than by the rate in question.

Gunning, in support of the motion.— The justices acted improperly in refusing to sign this rate. The churchwardens, not having been sworn in, were not, properly speaking, churchwardens at all, and could do no act in

VOL, I.

B

N. S. C.

1844.

The QUEEN

V. GODOLPHIN.

the execution of their office (a). In point of fact, no churchwardens have been sworn in in this parish for six years.

But if the rate produced to the justices was good on the face of it, they had no discretion in the matter, Regina v. Earl of Yarborough (6), the allowing and signing a rate being not a judicial, but merely a ministerial act: Rex v. The Justices of Dorchester (c). There is nothing on the face of this rate to show that it has not been regularly made; and, if it be bad, the parties aggrieved may appeal against it afterwards.

WILLIAMS, J.-Take a rule (d).

(a) By the 118th canon, “ the Law, App. 11; 2 Gibson's Codex office of all church wardens and Juris Eccles. 962. sidesmen shall be reputed ever (6) 12 A. & E.416; 3 P. & D. hereafter to continue until the 491. new churchwardens that shall

(c) 1 Str. 393. succeed to them be sworn; which (d) Absolute in the first inshall be the first week after Eas- stance. See Rex v. Edlaston ter, or some week following, ac- (Churchwardens, 8c.), 1 N. & P. cording to the direction of the 20. ordinary,” &c. 4 Burn's Eccl.

1844.

tion into a com

oath,

" whereas com

made before me, one &c.,

whereas I have

In the Matter of JONES.

January 13th. In this case, William Jones, a prisoner in Stafford Gaol, The examinahad been brought up by a writ of habeas corpus before plaint under the the Court of Queen's Bench, to be discharged, on the

4 Geo. 4, c. 34,

8.3, must be ground that the conviction on which his commitment had taken been made was bad. The prisoner had been convicted, Therefore, under the 4 Geo. 4, c. 34, s. 3, by one of the justices stating that

a conviction of Staffordshire, for absenting himself from his master's

plaint has been service. The conviction was as follows:

“County of Stafford. Whereas complaint hath been on oath ; and made unto me, one of her Majesty's justices of the peace duly examined in and for the said county, upon the oath of James the proofs and

allegations of Dabbs, miner, that William Jones, late of” &c., “ hath both the said contracted with the said James Dabbs, and Samuel ing the matter

parties touchDabbs, his partner, to serve them until” &c., “and hath of the said com

plaint, (not entered into such service, and absented himself from the stating upon

oath), and do same service,” &c. “And whereas, in pursuance of the adjudge” &c., statute in that case made and provided, I have duly ex

was held, bad. amined the proofs and allegations of both the said parties touching the matter of the said complaint, and, upon due consideration had thereof, have adjudged and determined, and do hereby adjudge and determine the said complaint to be true. And I do therefore convict the said William Jones of the said offence, in pursuance of the statute in that case made and provided. These are therefore to command you,” &c.

Bodkin now moved that the prisoner might be discharged. The statute 4 Geo. 4, c. 34 (a), under which the prisoner was convicted, was passed to extend the

(a) The 5th section enacts, and conclusive." See, as to the that

every order or determina- effect of these words, Rex v. tion of such justice or justices, Terret, 2T. R.734; Rex v.Jukes, made under this act, shall be final 8 T. R. 544.

1814.

In re Joxes.

powers of (amongst other acts) the 20 Geo. 2, c. 19, by which the certiorari is taken away, and there is no appeal. The instrument, therefore, should clearly be good on the face of it; but it does not appear here that the evidence which the magistrate received on hearing the case was taken on oath.

V. Lee, contrà, was here called upon by the Court.On referring to the conviction, it does appear that the evidence was taken on oath. The words, “I have duly examined ” must mean “examined on oath." And “the proofs and allegations ” mean the proofs and allegations of Dabbs, who is stated to have deposed on oath. [Williams, J.-The first is preliminary; then comes the part which refers to hearing the merits, and that should appear to have been on oath.] The question is, whether the former part cannot be called in aid of the latter, and both read together.

WILLIAMS, J.-I do not think that construetion would do, nor do I think that this instrument is to be construed differently from wher instruments. No violence must be done in the construction of it. Here a primâ facie case was made out on oath before the magistrate for him to try, and the hearing it afterwards should be stated to have been on oath also. The prisoner must be discharged.

The prisoner was discharged.

1841.

at the rent of

THE QUEEN v. The Inhabitants of CRANBROOK.

January 17th. On appeal against an order of two justices, dated the The pauper

rented and oc29th July, 1841, for the removal of Richard Ellis and cupied a teneAnn his wife, and their seven children, from the parish ment of Dr, at of Cranbrook, in the county of Kent, to the parish of of 181., from Hawkhurst, in the same county, the sessions quashed 1838, to April, the order, subject to the opinion of this Court upon the whole of which

time he underfollowing case :

let part of the

premises to W., On the 21st of December, 1838, the pauper, Richard 51. 48. a year. Ellis, entered into an agreement with Samuel Dobell, as rent was paid agent to Thomas Smith, for renting a tenement in the to the pauper

by a cheque, parish of Cranbrook, consisting of a house in two dwell- which the pauings, with some pieces of land and other premises, at per handed over the rent of 181. a year, under the following memoran

also paid him

31. 28. 6d.; dum of agreement, which was duly stamped and put in making togeevidence:

“ Memorandum, made this 21st day of December, paid during the 1838, of an agreement between S. Dobell of Cranbrook, account of the

rent due at as agent for Mr. T. Smith, of London, tailor, and Ri- Christmas in

that year. In chard Ellis, of Cranbrook, cooper. . That, from and after the 25th day of December, 1838, those two tene- the second year,

,

1840, W. paid ments situate at Milkhouse-street, with one piece of his rent of

51. 48. for that meadow land, one piece of arable, a plat and pond, with year direct to

D. In October, the gardens, one lodge, one shed, and one yard, now 1840, the pauoccupied by the said Richard Ellis avd his under-tenant per was rated to

the poor's rate West, shall be at the rate of 181. a year, payable half- for the preyearly.” [Then followed agreements as to terms of tion ; which tenancy not material.]

ther the sum of 81. 68. 6d.

the course of

rate he paid in January, 1841,

and resided

thereon for more than forty days afterwards. Held, that the Court would not infer from the facts stated that the last payment of 51. 4s. by W. was a payment on account of the first year's rent, so as to make up the sum of 101. of rent actually paid in one year, required by the 6 Geo. 4, c. 57, to enable the pauper to gain a settlement by payment of rates, (the sessions not having expressly found that that payment was to be so appropriated).

mises in ques.

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