usual notice to the justices, as required by 13 Geo. II. c. 18, s. 5, had not been given. It was contended, that the statute was only intended to enable justices to shew cause against the granting such certiorari, and did not apply to this case, where the justices themselves had settled the case, and thereby expressed their desire to have it brought up; and cited Lord Kenyon, in Rex v. Battams (1 East, 298).—Lord Ellenborough, C. J. The order of removal was, in the first instance, a summary proceeding, and the order of sessions thereupon, was a revision of that which was originally a summary proceeding. I find nothing in the language of Lord Kenyon, on which an argument has been raised, to the contrary: it is not applicable to the present case. Admitting that the magistrates may have wished, at the time when they settled the case, to have brought it up; still there may be reasons, why they might think fit to shew cause, and, unless it can be shewn, that it could serve no possible end to give them six days' notice, we cannot so presume. The statute appears to me imperative.-Bayley, J., was not aware of any instance, where a certiorari had been granted, after the expiration of the six months, upon a case reserved, and that it was the settled practice to give the six days' notice. Rule discharged. The application was renewed in the same term (1 M.& S. 734), the six days' notice having been given to the justices. It was urged, that the above circumstances took it out of the general rule. Rex v. Winpenny (34 Geo. I.), was cited, where a similar application, for removing an order for the maintenance of a bastard child, was made after the six months, and allowed.-Lord Ellenborough, C. J. The statute expressly requires, that the certiorari shall be applied for within six calendar months after order made; and I think it will be attended with beneficial consequences, if we put a strict interpretation upon this clause, as it will have a tendency to accelerate the settling of the cases which are intended to be brought up for our revision. -Bayley, , J. In strictness, the case ought to have been settled at the Michaelmas sessions, sedente Curiâ. Rule refused. [It is now the practice, to issue the certiorari, upon the signature of counsel, though it appears, by Rex v. Sawbridgeworth (1 Barnard, 297), that, formerly, there was a motion made for a rule nisi in Court, and, in that case, the Court "denied the motion, without so much as making a rule to shew cause."] 3. Of Costs and Maintenance. By 8 & 9 W. III. c. 30, s. 3. "For the more effectual preventing of vexatious removals and frivolous appeals, it is enacted, That the justices of the peace of any county or riding, in their general or quarter sessions of the peace, upon any appeal before them there to be had, for and concerning the settlement of any poor person, or upon any proof before them there to be made, of notice of any such appeal to have been given by the proper officer to the churchwardens or overseers of the poor of any parish or place (though they did not afterwards prosecute such appeal) shall, at the same quarter sessions, award and order to the party from whom and in whose behalf such appeal shall be determined, or to whom such notice did appear to have been given, as aforesaid, such costs and charges in the law, as by the said justices in their discretion shall be thought most reasonable and just, to be paid by the churchwardens, overseers of the poor, or any other person, against whom such appeal shall be determined, or by the person that did give such notice, as aforesaid; and if the person ordered to pay such costs shall happen to live in any county, riding, city, or town corporate, or elsewhere, out of the jurisdiction of the said court, it shall and may be lawful for any justice of the peace of the county, riding, city, liberty, or town corporate, wherein such person shall inhabit, and every such justice is hereby required, upon request to him for that purpose to be made, and a true copy of the order for the payment of such costs produced, and proved by some credible witness upon oath, by warrant under his hand and seal, to cause the money mentioned in that order to be levied by distress and sale of the goods of the person that is ordered and ought to pay the same; and if no such distress can or may be had, to commit such person to the common goal of that county or liberty, there to remain by the space of twenty days." Rex v. J. Nottingham, 1 Ses. Ca. 422; 2 Bott, 776. A mandamus was granted for the justices to give costs to the party in whose favour the appeal had been determined; yet upon their return of it, the Court held it reasonable for them to have the power of judging whether costs shall be allowed or not, and quashed the mandamus. Rex v. Stansfield, Burr. S. C. 205; 2 Bott, 776. The sessions adjourned the appeal to the next sessions, and ordered four guineas costs to the appellants; which order was quashed as to the costs; for the sessions cannot give costs on a mere adjournment of the appeal, without hearing it. Tenthly, Power of sessions in orders of removal. 3. Of costs and maintenance. Allowance of costs discretionary. No costs on an If appeal against removal be deof appellant, the justices shall lant payment of expences as relieving the termined in favor By 9 Geo. I. c. 7, s. 9. For the preventing of vexatious removals, if the adjournment. justices of the peace shall, at their quarter sessions, upon an appeal before them there had, concerning the settlement of any poor person, determine in favour of the appellant, that such poor person or persons was or were unduly removed, that then the said justice shall, at the same quarter sessions, order and award to such appellant so much money as shall appear to the said justices to have been reasonably paid by the parish, or other place, on whose behalf such appeal was made, for, or towards the relief of such poor person or persons, between the time of such undue removal, and the determination of such appeal; the said money so awarded to be recovered in the same manner, as costs and charges upon an appeal are prescribed to be recovered by the said statute made in the ninth year of his late Majesty King William the Third, intituled, (c. 30.) An act for supplying some defects in the laws for the relief of the poor of this kingdom. award to appel pauper. St. Mary's, Nottingham, v. Kirklington, 2 Sess. Ca. 67; 2 Bott, 776. Mandamus lies Motion for a mandamus to the justices, commanding them to allow Kirk- to enforce. lington the expence their officers had been put to, in keeping a poor person from the time of his removal, till the order was discharged by the sessions upon appeal. Mandamus granted. Rex v. Great Chart, Burr. S. C. 194; 2 Bott, 1015. An order was quashed by the sessions for insufficiency; and the sessions, thereupon, order that the costs of maintaining the pauper, since the time of his removal, shall abide the event of the cause, in case Great Chart shall think proper, by another order, to remove the pauper to Kennington; which order, as to the costs, was quashed by the Court of King's Bench, because the sessions must either give, or not give, costs at the time when they make their order. It Rex v. J. Norfolk, 5 B. & A. 484; 1 D. & R. 69; 1 D. & R. Mag. Ca. 22. An order for the removal of Hannah, the wife of E. George, had been executed, but, by consent of the removing justices, had been superseded. did not appear whether the costs of maintenance, between the execution and supersedeas had been paid. The sessions had refused to enter the appeal.Upon a motion for a mandamus, Bayley, J., said, In cases like this, the justices may exercise a discretion whether they will enter the appeal or not, so as best to answer the purposes of justice. If the parties removing, do not choose to pay the expences of maintenance incurred, previously to the supersedeas, they may then enter the appeal for the purpose of compelling them to do so. If they are willing to do it, the sessions may refuse to enter the appeal. Sessions must not give costs Appeal may be entered after the order had been abandoned of the removing parish. Neglect to pay the costs and maintenance. First, Of evidence generally, &c. 1. Of oral testimony. Competency of witnesses. VII. Of Evidence in Settlement Cases. (a) As the facts upon which the different kinds of settlement depend, have been already stated under the respective heads, it may be thought that a general intimation that those facts must be proved, according to the estab lished general rules of evidence, would be a sufficient direction upon this subject. But there are some peculiarities belonging to the modes of conducting questions of this nature before the proper tribunals, which it will be expedient to explain; and it may also dispense with the necessity of occasionally referring to other books upon the subject, if a brief analysis be given of the principles of evidence, and of the general rules which have been founded thereon; constituting the science of judicial investigation, as applicable to the settlement of the poor. It will be convenient to divide the subject as follows: (b) First, Of Evidence in General, applicable to any Case under the Law of Settlement. Secondly, Of Evidence of Settlement in Particular Cases. (c) (First)-Of Evidence Generally, applicable to any Case under Poor Laws. 1. Of Oral Testimony. 4. Of Hearsay Evidence. 1. Of Oral Testimony. The mode of obtaining the attendance of witnesses is well known, and it is only their use, as instruments of evidence, when they are properly in court, that it is proposed now to consider. The rule of law, that the best evidence must be produced, in all cases, as applied to oral testimony, admits of this qualification, viz., that he, who is best informed of any fact, is not always allowed to be examined on the subject. The law requires a mental and a moral fitness for the duty of giving evidence, of one or other of which qualities such individual may be destitute, and must, therefore, be rejected. (a) It may be objected to the first part of this chapter, relating to evidence in general, that the introduction of the matter is swelling the work unnecessarily, especially as the chapter on evidence, in the second volume, is now rendered so full and complete. But it is hoped, that the few pages here occupied will not be found useless, as they contain, interspersed, some cases particularly relating to the poor laws; and as this volume is frequently taken separately to the sessions. The second division of the chapter, relating to evidence of settlement in particular cases is abso lutely necessary. (b) As to Evidence in general, see ante, 2nd vol. tit. Evidence; as to the evidence on appeals against orders of removal, see ante, 705 to 790. (c) See division of these subjects, ante, 273. First, Of evidence generally, &c. 1. Of oral testi mony. When the objection arises from interest, it is usually taken upon the witness's being sworn in chief; he may then be examined, generally, by the counsel for the opposite party, as to his interest. Upon such examination, he may be asked as to the contents of a particular document, without its being produced, and without notice given to the other party to produce it, for the party objecting to the witness could not know before-hand, whether the When incompewitness would be called or not. So the witness may discharge himself tent on account generally on the voire dire, without strict documentary proof. Thus a wit- of interest. ness, in a settlement case, having admitted that he had rateable property in the township, which was primâ facie a disqualification, was allowed to prove, on the voire dire, that he was not actually rated (a). But objections of this kind are no longer of any avail, in settlement cases, 54 Geo 3, c. 170, it having been provided, by the 54 Geo. III. c. 170, s. 9, "That no inhabit- $9, rated inhabitants and parish ant, or person rated, or liable to be rated, to any rates or cesses of any district, officers declared parish, township, or hamlet, or wholly or in part maintained, or supported to be competent. thereby, or executing or holding any office thereof or therein, shall, on such account, be deemed an incompetent witness, for or against such district, parish, &c., in any matter relating to such rates or cesses, or relating to any order of removal, or the settlement of any pauper, or touching any bastards, chargeable, or likely to become chargeable to such district, parish, township, or hamlet, or the recovery of any sum or sums for the charges or mainteuance of such bastards, or the election or appointment of any officer or officers, or the allowance of the accounts of any officer or officers of any such district, parish, township, or hamlet; any law, &c., notwithstanding." So that in parish appeals, or other proceedings relating to parish matters, all objections to the competency of any witness, on the score of interest, or by executing any office, are removed. [See the decisions on this act in Meredith v. Gilpin, 6 Price, 146, (ante, 149) and see also 1 B. & A. 87; 2 Stark, R. 215; Rex v. Hayman, M. & M. 401; and Marsden v. Stansfield, 7 B. & C. 815.] In Slocomb v. St. John, 29th August, 1829, on an issue to try whether the parish of Putney were to appoint both churchwardens, or whether the minister, by custom, is to appoint one, Sir J. A. Parke held, that a rated inhabitant of the parish is a competent witness to prove, that the parish select both churchwardens, saying, that the principal object of the act, on the face of it, appears to relate to the poor, yet the words election or appointment of officers are very general. Tried at Croydon; Andrews, Brodrick, and Thessiger, for plaintiff; and Gurney and Law for defendant. But in Oxendon v. Palmer, 12th August, 1829, before Sir J. A. Parke, that learned judge, after consulting Gaselee, J., held, that an inhabitant of a parish is not, either at common law, or under this act, a competent witness to prove the right of surveyors of highways in a parish to take beach from sea shore in order to repair highways. In Smith v. Ashcomb, in Hilary Term, 1820, a case reserved at the Devonshire sessions, it was held, that the statute restored the competency of an overseer, though his name appeared as a party to the appeal. The case is not yet reported, and the same point is now pending in Rex v. Aylesbear. A pauper is a competent witness and may be examined as to the fact whether he had ever gained a settlement, or whether there was a reasonable ground to conclude that he had gained a settlement in the appellant parish by apprenticeship or otherwise; per Bayley, J., in Rex v. Yarwell, 9 B. & C. 895; and per Ashurst, J., in Rex v. Eriswell, 3 Term. Rep. 720; and 1 Nol. P. L. 488, a master was in general incompetent to prove or disprove his servant's settlement, but since the above statute he may. [See cases, post, 804, &c.] Although the objection to the competency of a witness ought to be taken before the witness is examined in chief; yet, if it be discovered, at any sub Decisions thereon. A pauper competent to prove ment, and his master not. his own settle Time of objecting to competency of witness. (a) Rex v. Gisburn, 15 Eat, 57; Rex v. Killerby, 10 East, 292; 1 Stark. on Evid. 120. First, Of evidence gene rally, &c. I. Of oral testimony. Mode of examining witnesses. Examination as to knowledge and as to belief. Refreshing the memory. Cross examina sequent stage of the trial, that a witness is interested, his evidence may be struck out (a). But, if the objection be not taken before he is examined by the party calling him, he cannot be cross-examined as to the contents of a written document not produced, which might have been done, had the objection been taken in the first instance (b). The rule that a witness shall not be asked leading questions, has been thus interpreted; viz. that he shall not be asked those questions, or any questions, in a form which suggest to him the answer he is to make. But where the matter of immediate enquiry is merely introductory to that which is material, the rule does not apply, as it is convenient and proper to lead the mind of the witness directly to the subject, by at once asking his assent to those general facts which are necessary to be known, to a right understanding of the case, but have no influence upon the immediate issue to be determined (c). When the examination arrives at this latter point, a question which plainly discloses to the witness the answer which the party hopes to extract, is certainly objectionable. If, however, the witness evidently wishes to conceal the truth, or to favour the interest of the opposite party, the Court will allow leading questions to be put, as the mind of the witness is then already guarded, by such bias, against unfairly prejudicing the other side by his answer. The same course is permitted, where a witness is called to contradict another as to the contents of a particular letter, which is lost, and he cannot recollect its contents, the particular passage may be suggested to him (d); or if he is called to prove a copartnership, consisting of a number of persons whose names he cannot remember, the names may be read to him, and he may be asked if they were members of the firm (e). Generally speaking, a witness should only state such facts as are within his own personal knowledge, and not such as he believes, or is persuaded, are true, because he may have heard so. But his belief is evidence when founded upon facts which are within his own actual knowledge. On questions of identity, and of hand-writing, this is often the only species of evidence which can be given. And the opinion of professional persons, in matters of skill and judgment, is likewise admissible, the credit and value thereof being, in all cases, a question for those who have to determine upon the evidence (f). If a memorandum of facts is produced, made by the witness, or by another with his privity, either contemporaneously or subsequently, when the facts were fresh in his memory, he may look at it to refresh his memory; but if he has no knowledge or recollection of a fact, except that he perused it in a book or paper, such book or paper must be produced, for he is not, in such case, a witness to the fact, but only that such a writing exists, the contents of which the Court cannot take cognizance, unless it is produced (9). Whatever tends to disclose the real situation of the witness in relation to tion of witnesses. the party who calls him, or to the matter in dispute, is a proper subject of cross-examination. His credibility may also be assailed, in like manner, by questions affecting his character; and he cannot refuse to answer, because he may thereby subject himself to a civil liability, or charge (h). But he is not bound to answer, where by so doing, he may expose himself to any criminal proceeding or penal liability. Thus, upon an appeal against an order of bastardy, he is not bound to declare whether he is the father of a bastard child (i.) And it has been held, that a witness is not bound to answer any question which tends to render him infamous, or even to disgrace him, (3 Campb. 519), but the authorities are somewhat contradictory on this subject, and with respect to questions which merely tend to disgrace the witness, without his incurring any liability by his answer, even to a pecuniary penalty, (a) Turner v. Pearte, 1 T. R. 720. (f) 1 Stark. Evid, 127. (g) Doe v. Perkins, 3 T. R. 749. (h) See 46 Geo. III. c. 37. (i) Rex v. St. Mary Nottingham, 13 East, 58 n. |