the case of Rex v. The Commissioners of the Thames and Isis Navigation (a). As to the second point, the Court has no power to award these costs: the writ has not been "issued and obeyed" according to the meaning of the sixth section, but after a return a peremptory mandamus has been awarded. In the case of Regina v. Fall (b), Lord Denman, C. J., in giving the judgment of the Court, says, "It is clear that this provision was not intended to be repealed by stat. 1 Will. 4, c. 21, the clause of which (sect. 6) already cited, for making further provision for costs, was evidently designed merely for the cases omitted in the stat. 9 Ann. c. 20, where no writ is granted, or, if granted, is at once obeyed. Whether the words may not extend further and give the Court discretionary power over the costs in all cases, may be a question fit to be considered; but nothing requires the exercise of that discretion in all cases." The only parties are the overseers of Crich, prosecutors, and the justices of the West Riding, defendants. No costs can in such case be awarded to be paid by persons not parties to the record. The return does not purport to have been made on behalf of these overseers, and, therefore, the fourth section of 1 Will. 4, c. 21, does not apply. That statute was intended only to provide for cases for which there was no other remedy,-for cases omitted by 9 Ann. c. 20. Whitehurst, contrà.-The parish officers of Sheffield, although their names do not appear on the record, are the real parties; they having indemnified the justices, and assisted in drawing up the return. The appeal has been subsequently heard at the sessions, and the order of removal quashed on the merits. This has been the result of the peremptory mandamus, and such (b) 1 Q. B. R. 636. (a) 5 A. & E. 804. 1844. THE QUEEN v. The JUSTICES of the WEST RIDING. 1844. THE QUEEN v. The JUSTICES of the WEST RIDING. a state of facts could not have been brought about but for the mandamus; therefore, on the facts of the case this rule ought to be made absolute. As to the second point, the case of Regina v. St. Saviour's, Southwark (a), is a strong authority for this application. A mandamus issued to the wardens and overseers of St. Saviour's, Southwark, to make a rate; a return was made, which was argued on a concilium and quashed, and the Court ordered (under stat. 1 Will. 4, c. 21, s. 6), that the wardens and overseers should pay the costs. [Patteson, J.-Could you not have obtained costs when the case was set down and argued on a concilium? The case of Regina v. St. Saviour's, Southwark (a), is not a direct authority; for, though it was ordered that costs should be paid, it was also said they should not be paid personally.] The word "obeyed," in the sixth section of the statute, applies as well to a peremptory mandamus as to what may be called a mandamus "nisi." The judgment delivered by Tindal, C. J., in Regina v. Fall (b), in error, puts a proper construction on the words of this statute. He says, "The mode of legislation adopted by the stat. 1 Will. 4, c. 21, s. 3, by referring to the prior statute of 9 Ann. c. 20, s. 2, instead of containing express enactments applicable to all writs of mandamus, has created the principal difficulty in the case, and caused a doubt to exist, whether the effect of the statutes together is not to give damages and costs in those cases only where the prosecutor of the mandamus might have recovered damages in respect of a particular injury in an action on the case for a false return: for the provision in stat. 9 Ann. c. 20, s. 2, was applicable, as seems to have been decided by the case of Kynaston v. The Mayor, &c. of Shrewsbury (c), to such cases only. But person we are of opinion that the construction of stat. 1 Will. Lord DENMAN, C. J., now delivered the judgment of the Court. In this case there had been a mandamus to erase an entry from a record: the return was held bad, and a peremptory mandamus obtained. We are now asked to decide that the prosecutors' costs of these writs of mandamus should be paid by the overseers of the township of Sheffield, at whose instance the entry was originally made, and who acted, no doubt, in resisting the rule. A question was raised whether the sixth section of the stat. 1 Will. 4, c. 21, applied to such a case as this; the words of it are very large, and even though it did not extend to this case, the fourth section would come in aid of it, and bring these overseers within its operation. We have only to determine, then, whether the facts are such as should require us to apply this section; and we are of opinion that, as the erasure of the entry was an act which the justices could not do, unless under the authority of a mandamus, while the entry 1844. THE QUEEN v. The JUSTICES of the WEST RIDING. 1844. THE QUEEN v. The JUSTICES of the WEST RIDING. appears to have been made by the fault of the justices or the clerk of the peace, and in accordance with a practice of the sessions which had prevailed (however improper) for a length of time, we are not called upon to make the order, as prayed, and this rule must be discharged, but in this instance without costs. Rule discharged. END OF HILARY VACATION. Court of Queen's Bench. EASTER TERM, 1844. 1844. THE QUEEN v. The Inhabitants of BEDINGHAM. THIS was an appeal against an order of two justices, April 20th. An order for the removal of wife, and their dated the 28th of January, 1843, for the removal of a pauper, his Peter Quantril, his wife, and six children, from the parish of Bedingham to the parish of Earsham, both in the county of Norfolk. cited that it was made upon complaint of the overseers of The examinations whereon the order was founded the poor of the were as follow: parish of B., and adjudged the place of the tlement of the pauper, his last legal set "Norfolk, to wit.—The information and complaint of John Smith, of the parish of Bedingham, &c., taken on oath before us, two" &c., who said, "I am one of the overseers of the parish of Bedingham." [After six children, to wife, and their be in the parish of E. The examinations sent to the appellants with the order included a copy of the information and complaint of J. S., one of the overseers of the poor of B. (the respondent parish). It was admitted, at the trial of the appeal, that the application of J. S. was made on behalf and with the consent of the parish officers of B. generally. Held, 1. That, under these circumstances, the complaint was sufficient to found the order of removal. 2. That, as the order contained an adjudication that the settlement of the children was in E., it was not necessary to state that they had not gained a settlement for themselves. The examination of the pauper, after setting forth a settlement alleged to have been gained by him in the appellant parish, by hiring and service with one Spilling, stated that he had six children, aged respectively eighteen, sixteen, fourteen, twelve, nine, and four years; and, amongst other instances of relief, that, on several of his wife's confinements on the birth of the said children, whilst residing in the respondent parish, he had been allowed medical attendance upon his wife, by and at the expense of the appellant parish. The appellants, in one of their grounds of appeal, objected "that the pauper never acquired a settlement in E. by hiring and service, or by any other means." Held, that the dates of such relief sufficiently appeared by the examination. Held also, that, under this ground of appeal, the sessions were right in admitting evidence to shew that the relief given by the appellants had been given under a mistaken belief that the pauper had acquired a settlement in their parish by the hiring and service with Spilling, set forth in the examination. VOL. I. I N. S. C. |