Certiorari-Motion to quash, When too late-Case from Quarter Sessions.

When a whole term has elapsed after a case, granted by an order of Quarter Sessions, has been brought up by certiorari, it is too late to quash the certiorari, on the ground that although the affidavits on which the certiorari was obtained, alleged service of notice on two Justices present at the time of the making of the order, one of those Justices was, in fact, not then present.

On an appeal by the inhabitants of Basingstoke against an order of Justices, the Quarter Sessions of the county of Southampton, on the 28th day of June 1848 (the third day of the sessions), quashed the order, subject to a case.

In the following December, a certiorari to bring up the case was granted on an affidavit of due service of notice (pursuant to stat. 13 Geo. 2. c. 18. s. 5), on two Justices sworn to have been present at the making of the order of Sessions. The rule nisi, to quash the order of Sessions, was dated the 8th of May 1849, and the return to the certiorari was filed about the same time.

In the early part of this term a rule nisi was obtained, on the part of the appellants, to quash the certiorari, on affidavits which shewed that one of the Justices, who was served with the notice, was not present at the time of the making of the order of Sessions. It was not denied that he attended as a Justice on the first day of the sessions. Greenwood and Poulden shewed cause (Nov. 23).-It is not clear that both the Justices were not present at the making of the order. But assuming the fact to be otherwise, as the affidavits on which the certiorari was granted allege that due notice had been served on two Justices present at the time of the making of the order, the

Court will not quash the certiorari. All the cases in which the certiorari has been quashed for want of due notice have turned on the ground that proper materials were not before the Court at the time when the certiorari was granted. The Queen v. Cartworth (1), The Queen v. Darton (2), The Queen v. Gilberdike (3), were decided on the ground that the affidavits on which the certiorari issued did not sufficiently allege the presence of the two Justices at the making of the order. In the last of the above cases this defect in the affidavits was held not to be curable by affidavits, produced at the time of shewing cause, proving that the Justices served with the notice were, in truth, both present when the order was made. In The Queen v. the Justices of Hertfordshire (4), the argument as to the sufficiency of the service took place before the certiorari issued. After the great lapse of time, it is too late to make such an application as this-The King v. Rattislaw (5).

Crowder and Massey, in support of the rule. -Formerly the practice was to grant only a rule nisi for a certiorari-The King v. the Justices of Sussex (6). Now, the rule issues absolute in the first instance on proper affidavits. But when the rule issues absolute in the first instance, a party affected must always have an opportunity, on a sufficient statement of facts, to review the propriety of the granting of the rule. Swearing that the Justices were present when the order was made cannot warrant the issuing of the certiorari, if, in fact, they were not present. It has been decided that it is necessary that both should be present, not only during the sessions, but at the time when the order was made. The appellants' affidavits swear most positively that one of the Justices served was not present at the time of the making of the order. The affidavits on the other side do not swear that he was present.

(1) 5 Q.B. Rep. 201; s. c. 13 Law J. Rep. (N.S.) M.C. 26.

(2) 2 Dowl. & L. P.C. 498; s. c. 14 Law J. Rep. (N.S.) M.C. 41.

(3) 5 Q.B. Rep. 207; s. c. 13 Law J. Rep. (N.S.) M.C. 46, sub nom. The Queen v. Gilbersome. (4) 2 Dowl. & L. P.C. 500; s. c. 14 Law J. Rep. (N.S.) M.C. 73.

(5) 5 Dowl. P.C. 539. (6) 1 M. & S. 631.

[ERLE, J.-I take it as decided now that the service must be on two Justices actually present at the time of the making of the order. I am with you on every point, except as to the question whether you are not too late in your application.]

It has been decided that it can never be too late to make an application of this kind. The point was taken and overruled in The Queen v. Cartworth. No case has ever decided that mere lapse of time will bar the motion. It is true that in The King v. Rattislaw, Patteson, J. threw out a doubt as to whether an application might not possibly be too late, but he decided that in that case the lapse of time was no bar to the motion. The statute requires that notice shall be given to the Justices. Our laches could not deprive them of their independent right.

[ERLE, J.-If I decide against you, it will be on the general principle, that the rules of practice require a prompt application; but I do not wish to lay down a general rule of myself, without consulting the other Judges.]

Cur. adv. vult.

Judgment was this day delivered by

was

ERLE, J.-As this rule for quashing a certiorari is disposed of on the ground of the delay, the dates are material. The case granted at the sessions in June 1848. The certiorari was issued in December 1848, on an affidavit of due service of notice on two Magistrates, sworn to have been present at the making of the order. The rule nisi to quash the order of Sessions is dated the 8th of May, in Easter term 1849, the return to the certiorari being filed nearly at the same time. The present rule to quash the certiorari on affidavits denying the presence of one of those

was issued in Michaelmas term

The

Magistrates that the rule must be discharged. 1849. Upon these dates, I am of opinion proceedings are apparently regular. If preliminary fact, affirmed on one side, is intended to be denied by the other, the objection should be taken promptly, both for the sake of truth, while the matter is fresh in recollection, and for the sake of saving waste of money in preparing for argument; and also, because the objection when taken by one of the litigant parties

is wholly beside the merits, the notice having been required for the sake of the Magistrates, and it being improbable that the Magistrates who granted a case in sessions should out of sessions desire to prevent it from being heard. It is not necessary to define within what time the objection may be taken; but when a whole term has elapsed without objection being made after the case has been brought up, the preliminary facts must be taken to be admitted, and the application is then too late.

Rule discharged, without costs.

Churchwardens and Overseers-Bond by Assistant Overseer-59 Geo. 3. c. 12. s. 7. and 7 & 8 Vict. c. 101. s. 61.

The churchwardens and overseers for the time being may still sue upon bonds given under 59 Geo. 3. c. 12. s. 7. for the due performance of the duties of assistant overseer in a parish within an union, the effect of 7 & 8 Vict. c. 101. s. 61. being only to substitute, in such cases, the board of guardians for the vestry as the body who are to direct the bond to be sued upon.

Debt on bond by John Skelton and John Brown, being churchwardens, and Whitlam Smith and Henry Brown, being overseers of the poor of the parish of Great Grimsby, in the county of Lincoln. The declaration stated that the defendants, George Rushby, William Dann and James Wardale Bowman, had heretofore, to wit, &c., by their certain writing obligatory (profert) acknowledged themselves bound to Charles Percival Loft and John Brown, the then churchwardens, and to John Phillipson and Marmaduke Walker, the then overseers of the poor of the said parish, in the sum of 500l., the said sum to be paid to the said churchwardens and overseers and their suc cessors for the time being. It then set out the condition of the bond, which recited the appointment of the defendant Rushby as assistant overseer under 59 Geo. 3. c. 12,

and that the other defendants had agreed to become his sureties for the due execution of his duties as such assistant overseer. Breach, the non-accounting by the defendant Rushby for divers sums of money received by him, and non-payment of the same by the other defendants to the plaintiffs, wherefore, &c.

The defendant Dann pleaded as follows: -And for a further plea in this behalf the said William Dann says that the said writing obligatory in the declaration mentioned was made and entered into, and the said George Rushby was appointed such assistant overseer as in the condition of the said writing obligatory mentioned respectively before the making and passing of a certain act of parliament, made and passed in the session of parliament holden in the 7th and 8th years of the reign of Her present Majesty for the further amendment of the laws relating to the poor in England; and the said William Dann further says, that before the committing of the said breaches of the said condition in the said declaration mentioned, to wit, &c., and thence continually hitherto, the said parish of Great Grimsby in the said condition mentioned was and is situate in a union, to wit, the Caistor Poor Law Union in the said condition mentioned, the same then and during all that time being an union according to the true intent and meaning of the said statute, and of which said union there was and is during all the time aforesaid a board of guardians according to the force, form and effect of the statutes for the administration of the laws relating to the poor in England; and the said William Dann further says that this action hath not been brought nor hath the said bond been put in suit by this action by the board of guardians of the said Caistor Poor Law Union, in which the said parish of Great Grimsby is so situate as aforesaid. Verification.

Demurrer, that the plea did not confess and avoid the causes of action, and shewed no defence. Joinder therein.

T. Jones, in support of the demurrer. The action is brought upon a bond taken under the 59 Geo. 3. c. 12. s. 7 (1), and the

(1) The material words of the 7th section of the 59 Geo. 3. c. 12. are that "every such bond shall be made to the churchwardens and overseers of the poor, and may on any breach of the condition thereof be put in suit by and in the names of the

question is, whether the power given to the churchwardens and overseers for the time being to sue is taken away by the 7 & 8 Vict. c. 101. s. 61 (2). The latter act does not repeal the former, and the action is properly brought by the present plaintiffs.

[PARKE, B.-The question is, whether it is merely directory.]

Hugh Hill, contrà.-The plea shews that the bond was to be put in suit by other parties than the churchwardens and overseers for the time being under the 59 Geo. 3. c. 12, and there cannot be two concurrent actions. The affirmative words of the latter statute repeal the former, because they are inconsistent with it-Lang v. Spicer (3), Paget v. Foley (4). The object of the statute was to take the power of suing out of the hands of the particular parish and vest it in the board of guardians.

[ALDERSON, B. How do these words give the right of action to the guardians? The 59 Geo. 3. c. 12. s. 7. says "by and in the name of;" and parishes not being in an union must have the consent of the vestry, but if in an union, the consent of the board of guardians.]

churchwardens and overseers of the poor for the time being by the direction of the vestry, or select vestry, for the benefit of the parish in the manner hereinafter provided."

(2) The material words of the 7 & 8 Vict. c. 101. s. 61. are as follows:-" And wherever any parish for which such collector or assistant overseer may be appointed is situated in an union or is governed by a board of guardians, every bond or security given by any officer, in pursuance of this act or of the said act (59 Geo. 3. c. 12,) or of the said firstrecited act (2 & 3 Vict. c. 84), and not contrary to the rules of the said commissioners, shall, if the guardians shall see fit, be put in suit by the board of guardians of the union in which the parish or district for which the officer acts or has acted may be situated, notwithstanding that such bond or security may have been originally given to the overseers of a parish or to any other persons; and every bond or other security given by or on account of any officer appointed by any board of guardians for the due performance of the office to which he is so appointed shall remain in full force and effect, notwithstanding any change in district for which such officer may have been appointed or required to act at the time when such bond or security was given, or the addition of any parish to or the separation of any parish from such union since the giving of such security." (3) 1 Mee. & W. 129; s. c. 5 Law J. Rep. (N.s.) M.C. 60.

(4) 2 Bing. N.C. 679, 729; s. c. 5 Law J. Rep. (N.S.) C.P. 258.

The former act has the words "by the direction of the vestry:" here it is merely that it shall be put in suit by the board of guardians.

[PARKE, B.-You must establish that the right is absolutely transferred, for if it is only optional the plea does not allege that the option has been exercised. It is not stated whether the bond was in accordance with the rules of the Commissioners.]

In Jones v. Yates (5) it was held that although the consent of creditors is necessary to enable the assignees of a bankrupt to institute a suit in equity, a bill not stating such consent was not demurrable.

T. Jones, in reply.-The board of guardians is not a corporation, and if the present plaintiffs are not entitled to sue, who is? Is the action to be in the names of all the guardians or the board of guardians? (He was then stopped by the Court.)

PARKE, B.-The plea is insufficient for not shewing that the bond is in conformity with the rules, and if the right of suing depends upon the option of the guardians, that is not stated. I think, however, that on the general ground the plaintiffs are entitled to our judgment. The 61st section is no doubt very obscure, but it seems to have been intended to leave the churchwardens and overseers for the time being the right to sue, substituting the consent of the guardians for the direction of the vestry. The plea is, therefore, bad in substance.

ALDERSON, B. and PLATT, B. concurred. ROLFE, B.-I had some doubt as to the main point, but the plea is clearly bad on the other grounds.

Judgment for the plaintiffs.

guilty of forgery, but that there was no evidence of the forgery having been committed within the jurisdiction of the Court. The prisoner was not shewn to have been in custody till the time when the trial began:Held, that as the prisoner was in custody before the Court at the time of the trial the indictment and conviction were good under the 11 Geo. 4. & 1 Will. 4. c. 66. s. 24.

The prisoner was tried, at the Central Criminal Court, on the 22nd of August 1849, before Erle, J. who stated the following CASE and questions for the opinion of the Judges.

The prisoner was charged in the first count of the indictment with forging a consent to act as next friend in Chancery (1); and in the second count with uttering the same with intent to defraud.

The prisoner was not shewn to have been in custody till the time when the trial began. The jury found, as to the first count, that he was guilty of forgery, but that there was no evidence of its having been done within the jurisdiction of the Court.

As to the second count, the jury found a verdict of guilty.

The questions were-first, was the prisoner indicted when he was in custody within the 11 Geo. 4. & 1 Will. 4. c. 66. s. 24, (2) he not being shewn to be in custody till the time of the trial?

If not, secondly, is the uttering of a forged instrument with intent to defraud, where the forgery is a misdemeanour at common law, a misdemeanour? The learned Judge referred the Court to the case of The Queen v. Boult (3).

[The decision on the first question rendered it immaterial to consider the second.]

(1) The count alleged that the prisoner forged the paper at the parish of St. Andrew's, Holborn, in the county of Middlesex, and within the jurisdiction of the Central Criminal Court. It contained no averment respecting the prisoner's apprehension or being in custody.

(2) The 11 Geo. 4. & 1 Will. 4. c. 66. s. 24. above referred to, provides with reference to forgers and utterers of forged instruments that "the offence of every such offender may be dealt with, indicted, tried and punished, and laid and charged to have been committed, in any county or place, in which be shall be apprehended or be in custody, as if his offence had been actually committed in that county or place," &c.

(3) 2 Car. & K. 604.

Keating, for the prisoner.-It is submitted

that the conviction cannot be sustained.

[PARKE, B.-The prisoner falls within the words of the statute "be in custody," There is clearly a "being in custody" here. The point is decided against the prisoner by Whiley's case (4).]

That case as reported in Moody is relied on as an authority in favour of the prisoner.

PARKE, B. Though Mr. Moody is generally correct, his report of that case is quite wrong. The word "not" ought to be inserted in the marginal note to that report. It is not necessary that there should be any averment in the indictment as to the custody. The decision in Whiley's case proceeded on the authority of a preceding case in Foster (5), and the conviction was sustained by the opinion of a great majority of the Judges (including myself) who considered it. Denman, C.J. alone thought it wrong, and Littledale, J. doubted. That makes an end of this question.

The other Judges concurred.

County Rate-Special Constables-Municipal Corporation-Order of Justices on County Treasurer-Mandamus.

The statute 1 & 2 Will. 4. c. 41. is not repealed with respect to the appointment and remuneration of special constables within boroughs by statute 5 & 6 Will. 4. c. 76. s. 83.

The borough of Manchester, which was incorporated subsequently to the passing of 5 & 6 Will. 4. c. 76. and had a separate Quarter Sessions, is contributory to the county rate within the meaning of 1 & 2 Will. 4. c. 41. s. 13; and therefore an order by the Justices of the borough of Manchester upon the treasurer of the county of Lancaster for payment of the expenses, &c. of special constables appointed under 1 & 2 Will. 4. c. 41. for the borough of Manchester, is good.

(4) 2 Moo. C.C. 186. It is also reported in 1 Car. & K. 150, where the correct decision is stated. (5) Foster, C.C. 12.

Mandamus, &c. to William Adam Hulton, Esq., treasurer of the county palatine of Lancaster. The writ recited that before the making of the order to him directed, as hereinafter mentioned, that is to say, on the 23rd of October 1838, the borough of Manchester, in the county of Lancaster, was by charter incorporated, and on the 7th day of February then next following a separate commission of the peace, and on the 1st day of April then next following a separate Court of Quarter Sessions were granted to the said borough. That before such grant of incorporation as aforesaid the whole of the district which now forms the said borough of Manchester contributed to the county rate of the said county palatine of Lancaster as fully and in the same proportion as any other part of the same county, and that since such grant of incorporation, and of a separate commission of the peace, and of a separate Court of Quarter Sessions as aforesaid, the said borough of Manchester had continued to contribute and is still liable to contribute to the said county rate for and in respect of all sums thereout expended (other than for the costs arising out of the prosecution, maintenance, punishment, conveyance and transport of offenders committed for trial in the said county palatine, and for the costs arising out of coroners' inquests), and among other expenses the said borough of Manchester were charged by the said W. A. Hulton, as treasurer of the said county palatine, and were required and were liable to pay to the county rate of the said county their portion of the sums expended in the autumn of the year 1842 for the allowances made to special constables appointed for certain parts of the said county palatine (not including the said borough of Manchester) during and by reason of certain serious riots which took place about that time in the manufacturing districts of the said county; and that the said riots having extended also to the said borough of Manchester, and it being made to appear to two Justices of the said borough on the 10th of August in the year last aforesaid, upon the oath of a credible witness, that a large concourse of persons had assembled and that tumults and riots might reasonably be apprehended in the said borough, the said Justices (being of opinion that the ordinary officers then