1844.

THE QUEEN

may

condly, it does not appear whose servant the pauper was. He as well be taken to have been the servant of Eatock as of Messrs. Crompton & Ditchfield, and PILKINGTON. no inference on this point can be allowed. Rex v.

v.

Inhabitants of

Sparsholt (a). It should be remembered, too, that the pauper himself was under examination; all the facts were within his own knowledge, and he should have been asked whether or not there was a hiring for a year: there was no necessity to leave any thing for inference, as might be urged if a person had been under examination who had had no means of knowing all the facts. Lastly, the case shews clearly a variance. The examination sets up a hiring by Messrs. Crompton & Ditchfield; and the question at the sessions was, whether there was or was not a hiring by them: the facts, however, as proved, all tended to shew that the hiring was by Eatock, and such a variance must be considered fatal.

Cur. adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court. In this case the question was, whether the notice of appeal stated any valid objection to the examination. There was a minute criticism of some of the expressions, but we think there is no valid objection to that examination. It may be very true that where the settlement depends upon a single fact, known to the pauper, such as residing, or being unmarried without child or children, it is reasonable to expect his examination should contain a specific statement of that very fact. But it is very different as to the legal consequence of facts. Hiring is a most difficult question of law. The justices of the peace may possibly have asked the pauper whether he was hired or not: the answer may have been, "I do not know what you call hired, but I

(a) 4 A. & E. 491.

will tell you what took place on the occasion;" and then

1844.

v.

Inhabitants of

he may possibly state facts, as in the present instance; THE QUEEN and if those facts which appear in the statement of the pauper amount to evidence of a hiring for a year, then PILKINGTON. the justices may properly adjudicate that the settlement was gained, and remove the party upon it; and they must govern their opinion by the effect of such statement, if it appear to amount to any evidence of facts sufficient for such a hiring. In the second place the sessions found a settlement, on the evidence of the hiring and service, subject to our opinion whether the objections are well founded or not. The first objection was, it was doubtful whether this was a general hiring, but we thought the facts of the case furnished sufficient evidence of such a hiring; and then the next objection was, that it was doubtful whether the pauper was hired by the owner of the mill, or by the person called the spinner, who immediately employs the pauper and others in his situation. The sessions found the hiring and service, subject to our opinion.

The question was as to the effect of that finding. The Court have either done right or wrong in sending that to us. They have done right if they ask our opinion whether the facts stated will warrant the finding which they have made of the party being hired; but they have done wrong if they refer to us the mere question of fact, and ask our opinion as a jury upon it. We are not to assume they have done wrong; we, therefore, must conclude they have put the question to us in this way, whether the facts which led them to the judgment which they have formed are such as were competent to found that judgment. We think those facts sufficient. The case of Rex v. Sparsholt (a) was that which was most referred to, as shewing we are to form our opinion, or to send the case back to the ses(a) 4 A. & E. 491.

VOL. I.

H

N. S. C.

1844.

THE QUEEN

v.

sions on such a question; but in that case the removal was confirmed. What was done by the justices was itself right. We do not take upon ourselves to say they PILKINGTON. have done anything wrong, where there is a sufficient foundation for the judgment. In this case the order will be confirmed.

Inhabitants of

Order of sessions confirmed.

Feb. 10th.

The stat.

1 W. 4, c. 21, s. 6, enacts, "that in all cases of application

for any writ of

mandamus

whatsoever, the

costs of such application, whether the writ shall be granted or refused, and also the costs of the writ, if the same shall be issued and obeyed, shall be in the discretion of the Court."

A peremptory writ of mandamus issued to a

Court of quarter

sessions, direct

ing the justices

to erase from the records of

THE QUEEN v. The JUSTICES of the WEST RIDING of YORKSHIRE.

(CRICH v. SHEFFIELD).

IN this case there had been a peremptory manda

mus (a) to the justices to erase, or cause to be erased, from the records of the quarter sessions, an entry of an appeal against an order of removal, and the order of the Court confirming it, and to enter, as of a former sessions, the appeal of the churchwardens and overseers of Crich against the said order, and cause continuances to be entered and to hear and determine the appeal.

The first writ recited the original order of removal, the examinations and the notice of chargeability, a notice of appeal to the next general quarter sessions, a countermand of the notice, and a notice of the intention to appeal in the event of removal; an entry of the appeal by the officers of Sheffield, the removing township, without the knowledge of the officers of Crich, and the confirmation of the order by the sessions without hearing the merits, and without the privity, knowledge, or

the Court an entry made at a previous sessions, which was manifestly wrong, and made without jurisdiction, but in accordance with the practice of the sessions, and which entry had been made on application by the respondents, without the knowledge of the appellants. Upon motion for costs to be paid by the respondents-Held, that, as the erasure of such entry was an act which the sessions could not do, and as the entry was made by the fault of the justices, or the clerk of the peace, the Court would not order the respondents to pay the costs.

(a) Regina v. The Justices of the West Riding, 3 G. & D. 170.

consent of the officers of Crich; the removal more than six months afterwards, and, at the same time with the removal, notice of the confirmation of the order on appeal; lastly, the refusal by the sessions of an application by the officers of Crich for the erasure of the entry of the appeal, and the judgment thereon, from the records of the Court, and for the entry of the appeal as of the then sessions, and the adjournment of it, with a view to its being heard and determined.

To this writ there was a return, admitting all the facts stated in the writ, and urging that the sessions had not jurisdiction of their own authority to erase an entry on their records; and that, inasmuch as the order remained confirmed, they had no authority to enter continuances and to hear the appeal.

The validity of this return was argued on a concilium; and a peremptory mandamus was awarded (a): this Court, however, being of opinion that the sessions had not jurisdiction of their own authority to erase an entry once made on their record, unless directed by mandamus to do so. The appeal was afterwards entered and heard, and the order of removal quashed on the merits.

In Michaelmas Term, Whitehurst having obtained a rule calling on the present and late churchwardens and overseers of Sheffield to shew cause why they should not pay all the costs incurred in prosecuting the above applications,

Pashley, now shewed cause (b).-This rule must be discharged on two grounds; first, because the facts are not such as to induce the Court to grant costs, if they

(a) 3 G. & D. 170.

Denman, C. J., Patteson and (b) January 31st, before Lord Coleridge, Js.

н 2

1844.

THE QUEEN

v.

The JUSTICES of the WEST RIDING.

had the power; and secondly, because the sixth section of stat. 1 W. 4, c. 21 (a), which is the only provision of the law that can be adduced in support of the rule, does not extend to such a case as this. On the first point it is clear, and it was so laid down by this Court, in Regina v. The Justices of the West Riding (b), where the peremptory mandamus was awarded, that the sessions had not jurisdiction of their own authority to erase this entry from their records. It is denied on the affidavits that the officers of Crich ever asked the sessions to enter and respite their appeal, with a view to its being heard and determined; and the sessions clearly have no power to enter and respite an appeal, unless an application be made to them to do so. The case then stands thus: the prosecutors asked the sessions to do that which they had not the power to do, and the sessions of themselves could do nothing to aid them. The prosecutors then came here for a mandamus, and ultimately, under the authority of the Court, obtained a hearing at the sessions. On these facts then, even as against the justices, on whom there is no imputation, they would not be entitled to costs: but this rule only calls on the overseers of the respondent parish to pay the costs. It is conceded as a general rule, that the party ultimately succeeding on a mandamus is entitled to costs: Regina v. The Mayor, &c., of Newbury (c). But in this case the special circumstances are sufficient to make it an exception, as in

(a) Sect. 6. "And for making some further provision for the payment of costs on application for mandamus, be it further enacted, that in all cases of application for any writ of mandamus whatsoever, the costs of such application, whether the writ shall be granted or refused,

and also the costs of the writ of the same shall be issued and obeyed, shall be in the discretion of the Court; and the Court is hereby authorised to order and direct by whom and to whom the same shall be paid.

(b) 3 G. & D. 170.

(c) 1 Q. B. R. 751, 762.