1844. THE QUEEN v. Inhabitants of THE FIELDS. settlement there. In Rex v. Chatham (a), Lord Ellenborough, C. J., said, it appeared to him the better rule to adopt, that continued relief does not furnish the conclusion of a settlement; yet it seems, from Rex v. ST. GILES-INTrowbridge (b), that, under certain circumstances, it might be evidence for the consideration of the sessions. The case states nothing positive as to the pauper being either casual or sick poor; but the inference from his being sent out of the parish is that he was in good health, and from the length of relief that he was not casual poor. There was therefore some evidence; and if so, the Court will not disturb the finding of the sessions, who have considered the evidence of an acknowledgment sufficient: Rex v. Turvey (c), Rex v. Yarwell (d). M. Chambers, contrà, was not called on by the Court. Lord DENMAN, C. J.-It appears to me that the sessions have properly placed the question before us, whether there was any evidence of relief out of the parish so as to create an acknowledgment of a settlement; and I am of opinion that there was no such evidence. Rex v. Chatham (e) and Rex v. Coleorton (g) are authorities upon this subject. In Rex v. Chadderton (h) there was only one act of relief to the pauper by the parish while he resided in it, which it was held might well be considered as casual relief, and therefore no evidence of his settlement there. And the reason is obvious; the parish officers are bound to relieve casual poor, and if they were to be prevented doing what motives of humanity 1844. THE QUEEN v. Inhabitants of THE-FIELDS. would dictate, by fear of a settlement being admitted by it, the pauper might die for want of assistance. With reference to the argument, that it ought to be ST. GILES-IN- shewn that the statutory provisions for workhouses out of the parish have been complied with, that seems to me immaterial. I think this house was in point of fact a parish house, and may be considered as the workhouse, and that, therefore, this is quite a case of relief within the parish, and against the supposition of its being any acknowledgment of a settlement by giving relief out of the parish (a). WILLIAMS, J.-The question submitted to us is, whether there was any evidence at all of the fact that relief was given to the pauper out of the parish. This is rather an inference of law, than of fact. From the time of the decision of Lord Kenyon, C.J., in Rex v. Chadderton (b), to the present, the bare fact of relieving a pauper in a parish is no acknowledgment of his having a settlement there. I think it better strictly to abide by this rule, and am of opinion therefore that the sessions were clearly wrong. It is suggested, that such acts of relief might grow into proof of a settlement. If so, where is the line to be drawn; would five or ten payments be necessary, and would it make any difference whether ten shillings was paid at once, or at ten payments of a shilling each? Here, instead of giving the pauper relief in their parish, the overseers transfer him to their own establishment out of it. It can make no difference whether that establishment is locally situate in or out of the parish. WIGHTMAN, J.-I am of the same opinion. I cannot agree that this can be considered as relief given out of (a) Patteson, J., being one of the appellants, took no part in the proceedings. (b) 2 East, 27. 1844. THE QUEEN the parish. They first relieve the pauper in the parish, and afterwards transfer him to an establishment where they keep their own poor. Rex v. Chatham (a) and Rex v. Coleorton (b) distinctly shew that no such inference as is ST. GILES-INsuggested is to be drawn from such circumstances. v. Inhabitants of THE FIELDS. (a) 8 East, 498. Order quashed. (b) 1 B. & Ad. 25. THE QUEEN v. CLARK. April 25th. Will. 4, c. 50, dictment for the A rule nisi was obtained in Hilary Term, 1844, The stat. 5 & 5 calling upon James Clark, surveyor of the highways s. 95, enacts, within the parish of Chipping Barnet, in the county of that, in an inHertford, to shew cause why a mandamus should not issue, directed to him, commanding him to pay to Robert Bullock the costs of the prosecution of an indictment against the inhabitants of the said parish, according to the provisions of stat. 5 & 6 Will. 4, c. 50, ss. 94 and 95 (c). non-repair of a highway, "the costs of the prosecution shall be directed by the Judge of assize, before whom the in dictment is tried, or the justices at ses sions, to be paid out of the highway rate." An indictment under this statute was tried at the assizes, the defendants were found guilty, and the Judge thereupon made a verbal order for the costs of the prosecution. A bill of costs was sent to the defendants, but was never taxed. The recognisances, having been respited from time to time, were ultimately discharged, and an application was made to the Judge who tried the case to enforce his order for the costs, but he declined to interfere. This Court refused to grant a mandamus to the surveyor of the parish to pay the costs, their amount not having been ascertained. Semble, the amount of costs should be ascertained by the Judge who tries the case at the assizes or sessions, or by the officer of the Court under his direction, at or immediately after the trial. (c) Sect. 94 provides for the mode of proceeding in case of a parish road being out of repair, by summoning the surveyor or person chargeable with the repair before the justices at special ses sions. Sect. 95 enacts, "That, if, on the hearing of any such summons respecting the repair of any highway, the duty or obligation of such repairs is denied by the sur- 1844. THE QUEEN v. CLARK. The following facts appeared on affidavit:— On the 3rd of November, 1840, an order was made by justices assembled at special sessions, directing Robert Bullock to indict, at the next assizes, the inhabitants of the parish of Chipping Barnet, for nonrepair of a highway there situate. At the Spring assizes for the county of Hertford, in 1842, the indictment was tried before Gurney, B., and the defendants were found guilty. After the verdict was delivered, an application for the costs of the prosecution was made to the Judge, who respited the judgment and recognisances till the next assizes, in order that the road might be repaired in the meantime, and the necessity of a fine obviated: he also made a verbal order for the costs of the prosecution, and the clerk of assize made an entry in his minute-book to that effect. The costs, up to the time of the verdict, amounted to 6787. 17s. 6d. At the Summer Assizes, 1842, the judgment was further respited by the learned Judge who then presided, on application made on behalf of the inhabitants of the parish. On the 29th of June, 1842, the attorney for the prosecution sent in his bill of costs to the attorney for the defendants, who refused payment. He afterwards applied to the taxing Masters of the Crown-office, and to the deputy clerk of assize for the Home Circuit, county, or at the next general sessions, to be paid out of the rate made and levied in pursuance of this act in the parish in which such highway is situate; provide nevertheless, that it shall be lawful for the party against whom such indictment shall be so preferred at the quarter sessions as aforesaid to remove such indict ment, by certiorari or otherwise, into his Majesty's Court of King's Bench." to tax the bill, and which they declined to do, alleging that they had no authority. Application was afterwards made, on the 28th of October, 1842, to Gurney, B., to ascertain the said costs, and insert the amount in his order; but he refused to interfere. At the Spring Assizes, 1843, the road having been repaired in the meantime, the prosecutors did not pray for judgment, but applied to Patteson, J., who presided at those assizes, for the costs of the prosecution; but his Lordship was of opinion, that he had no power to grant the application. Gurney, B., was, on April 30th, 1843, again requested to grant a summons to enforce his order, which he refused. At the Summer Assizes, 1843, Parke, B., discharged the recognisances of the defendants, but was of opinion that he had no power as to the costs of the prosecution. The bill of costs was afterwards taxed by the clerk of the peace for the county of Hertford, and payment of the amount demanded, and refused. Platt and Godson now shewed cause.-The order for the payment of these costs was made in 1842, but they have never yet been ascertained by any competent authority. This rule calls upon the surveyor of the parish to pay an indefinite amount. Supposing the rule to be made absolute, the present surveyor has no means of reimbursing himself these expenses, because he cannot levy a rate upon the present rate-payers for that purpose. The amount of the costs should have been ascertained during the assizes, either by the Judge himself, or by some officer of the court. It is now too late to make the application. In Selwood v. Mount (a), it was held, that an order of the quarter sessions for payment of costs, generally, under the 90th section of the same statute, was bad, for not specifying the amount of costs. In Regina v. Long (b), where an the 1844. THE QUEEN v. CLARK. |