1847.

v.

VICKERY.

an application was made, on behalf of the overseers of the poor of the said parish of Stawley, to three justices THE QUEEN of the peace in and for the said county of Somerset, at a petty sessions at Wellington, to examine and inquire as to the place of the last legal settlement of the children of the said John Melhuish, and to make an order for their removal from the said parish of Stawley to the place of their last legal settlement, when and where the said Robert Vickery attended, in obedience to the said writ of subpoena, and was duly sworn; and that he was asked certain questions, which he the said Robert Vickery, acting under the advice of an attorney, then refused to answer, alleging, as the ground of his refusal, that he was a rated inhabitant of the said parish of Raddington, and was not compellable to give evidence against his own interest; and that, in consequence of such refusal of the said Robert Vickery to answer the said questions, no order of removal could be obtained, and that the said pauper still remained resident in and chargeable to the said parish of Stawley.

Kinglake, Serjt., (Ball was with him,) on shewing cause, took a preliminary objection, that it did not appear by the affidavits that a complaint was made to the justices by the parish officers of Stawley, or that the paupers were chargeable to that parish. He cited Regina v. The Justices of Buckinghamshire (a), and was then stopped by the Court.

Pashley, contrà.-The affidavits are sufficient; they state that an application was made to the justices on behalf of the overseers of Stawley, which, if made by their attorney, or by one of their own body acting for and

(a) 3 Q. B. R. 800; 2 G. & D. 560.

1847.

in the name of the rest, would be sufficient: Regina v. THE QUEEN Bedingham (a). But the question here is, whether the process of this Court has been disobeyed. The defendant made no such objection as this before the justices.

v.

VICKERY.

Lord DENMAN, C. J.-It cannot be supposed that we are to issue an attachment for not giving evidence before a judicial tribunal, unless it is first shewn to have had jurisdiction. It is clear we cannot presume, from these affidavits, that a proper complaint was made before the justices.

PATTESON, COLERIDGE, and WIGHTMAN, Js., con

curred.

Rule discharged, without costs.

(a) Ante, Vol. 1, p. 105.

January 30th.

THE QUEEN v. The Justices of LONDON.

Where the ses- AN order of removal made on the 25th November,

sions had dismissed an appeal on the ground that the previous sessions had improperly entered and respited the appeal, the appeliants having had time to give notice and

come prepared

1845, was served, with the necessary documents, on the following day. No notice of appeal being given, the pauper was removed on the 22nd December. At the next quarter sessions, (January 10th, 1846), an appeal against the order was entered, and respited. Notice of appeal was given on the 21st of March, and the appeal

came on to be heard at the April sessions, when it was dismissed, the court being of opinion, that the sessions,

to try the ap- in January, had no

peal at those

sessions, and

in January, had no jurisdiction to respite the appeal,

this Court made a rule absolute for a mandamus to the sessions to hear the appeal :-Held, that the respondents ought to pay the costs of the mandamus under the 1 Will. 4, c. 21,

8. 6.

1847.

v.

Justices of
LONDON.

because more than thirty-five days had elapsed between the receipt of notice of the order and the commencement THE QUEEN of the January sessions. In Trinity term, 1846, the Court made a rule absolute for the sessions to enter continuances, and hear the appeal (a). In Michaelmas term last, a rule nisi was obtained, calling upon the respondents to shew cause why they should not pay the costs of the mandamus.

Payne shewed cause.-In Rex v. The Justices of the North Riding (b), the Court held, that the justices were to judge of the reasonableness of the time, whether the appellants had time to give notice and come prepared to try the appeal. That case has been followed by Rex v. The Justices of Buckinghamshire (c), and Rex v. The Justices of Staffordshire (d), which seem to establish a different rule of practice. Where there are conflicting decisions, and where the mistake has arisen from an error in judgment, this Court, in the exercise of its discretion, will not be disposed to make the respondents pay the costs of the mandamus.

Pashley, contrà.-The circumstances under which the sessions dismissed this appeal are not sufficient to take the case out of the general rule of practice. [He was stopped by the Court.]

Lord DENMAN, C. J.-I do not think there is any thing in this case to take it out of the general rule, that the costs of an application for a mandamus will follow the event.

COLERIDGE, J., concurred.

(a) Ante, p. 410.

(c) 3 East, 342.

(b) 3 T. R. 150.

(d) 7 East, 549.

1847.

THE QUEEN

v.

Justices of
LONDON.

WIGHTMAN, J.-I have had some difficulty in coming to the conclusion that this rule ought to be made absolute, inasmuch as the error committed arose from a mistake of the sessions. I do not, however, wish to lay down any general rule on the subject, for the Court, in the exercise of its discretion, must be guided by the particular circumstances of each case (a).

Rule absolute.

(a) Patteson, J., was absent.

January 30th.

This Court in

its discretion

a mandamus to justices to en

force a summary convic

THIS

In the Matter of WILLIAMS.

was an application for a rule calling upon Hugh refused to grant Rivelly and Morris Templeman Pugh, Esquires, two justices of the county of Merioneth, to shew cause why a mandamus should not issue, commanding them to issue tion by warrant a warrant of distress to levy a penalty of £5 upon the goods of John Williams, or a warrant of commitment of the said John Williams until that penalty should be paid.

of distress or

commitment.

It appeared that Williams had been committed before two justices in a penalty of £5 for taking salmon in a river during the prohibited period, under the 58 Geo. 3, c. 43, s. 4, and in default of payment he was committed to prison. After an imprisonment of two days, he was brought before Williams, J., by habeas corpus, at the Bala Lent assizes, 1846, and discharged on the ground that the section of the act on which he was convicted had been repealed by the 6 & 7 Vict., c. 33, s. 6. Williams was subsequently convicted on the same facts under sect. 7 of the last statute, and fined £5, and the conviction was returned to and filed at the quarter ses

sions. In November an application was made to the convicting justices to issue a warrant of distress or commitment, whereupon it was objected that the second conviction being for the same offence, the parties were prohibited from issuing such warrant by the 11th section of the 58 Geo. 3, c. 43, which enacts, that "where any offender shall be punished for any offence by virtue of this act, such offender shall not again be prosecuted, nor incur any penalty by virtue of any other law or statute now in force, or be liable to any other punishment for the same offence;" whereupon the justices refused to

issue a warrant.

Pashley, in moving for the rule, contended that the first conviction was for no offence, as the section creating it had been repealed; that this was a ministerial act, as the issuing a warrant of distress for a poor rate; and that there was no other mode of enforcing the conviction.

Lord DENMAN, C. J.-I am not aware that we have ever issued a mandamus to enforce a conviction. This is a very different case from the levying a poor rate or appointing overseers, without which the affairs of a parish cannot be carried on. I think we have a discretion in such cases as this, and, if so, we ought not to exercise it to enforce the punishment of this person.

COLERIDGE and WIGHTMAN (a), Js., concurred.

(a) Patteson, J., was absent.

Rule refused.

1847.

In re WILLIAMS.