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of his brother in the adjoining parish of any pauper lunatic shall be confined under Winsford, and was found there, and con- the provisions of that act he shall for the veyed from thence to the asylum by the purposes of that act be deemed to belong relieving officer; and a subsequent order of to and continue chargeable “to the parish Justices, for the payment of the expense from which or at the instance of some officer of the maintenance of the lunatic, was made or officiating clergyman of which he shall on the treasurer of the union.

have been sent," but here the lunatic was The Poor Law Commissioners, on being not a pauper. applied to by the guardians of the union, [PATTESON, J.-The guardians do not gave it as their opinion that, under section appear to have told the Poor Law Commis. 57. of 8 & 9 Vict. c. 126, the charge must sioners that the lunatic was not a pauper.] be in the first instance on the parish of Even if the pauper had been considered Winsford, from which the lunatic was sent. as removable to the asylum under 8 & 9 And the guardians accordingly made the Vict. c. 126. ss. 48, 49, still he would following minute :-"Ordered, that a cheque until his settlement was ascertained, conbe signed for 131., the expense of keeping tinue chargeable to the parish " in which Thomas Hole in the lunatic asylum at he was apprehended or taken” (s. 49), and Devizes. Debit Winsford parish. Credit the auditor could only follow the directions treasurer."

of the Poor Law Commissioners. The

lunatic, not being a pauper, should have Montague Smith, for the auditor (1).- been dealt with under 8 & 9 Vict. c. 100, The auditor has no interest in the matter, and that statute does not give power to the and has acted for the best. There appears Justices to charge the expenses on any parish to have been a temporary change of resi- or union. The order of maintenance, howdence, and the auditor had no power to in- ever, made under section 62. of 8 & 9 Vict. quire into the settlement, but was obliged c. 126, could not be inquired into by the to act on the best information in his power auditor; and the Court will not assist the as to where the pauper, a wandering lunatic, overseers of Winsford, who seek not only was found.

to be relieved from paying the sum charged Pashley, on behalf of the overseers of to them, but to cast it on another parish. Hawkridge. — This proceeding to bring The overseers of Winsford or the guardians before this Court the parish officers of of the union might apply for an order on Hawkridge is wholly unnecessary and un- the father of the lunatic to pay towards his warranted. The lunatic appears to be the maintenance under the 43 Eliz. c. 2,son of a substantial farmer owning land in 11 & 12 Vict. c. 110. s. 8. Hawkridge, and never before was charge- [PATTESON, J.—That only applies to the able. He appears to have been neglected cases of persons chargeable to any parish.] by those whose duty it was to attend to Here the expenses have been charged to him, and hence arose the necessity for the the union. interference of the rector, who clearly [PATTESON, J.-But that is on the considered him a wandering lunatic and assumption that the lunatic has become proper to be dealt with under 8 & 9 Vict. chargeable by virtue of the order under c. 126. ss. 48, 49, and accordingly he, not which he was received into the asylum.] being chargeable to any parish, is dealt with The auditor had no power under 7 & 8 according to the form given in Schedule (E.) Vict. c. 101. to institute a judicial inquiry No. 1, which applies to lunatics charge- or to examine witnesses.

The proper able as well as those wandering though course would be for the parties to apply to not chargeable. The 57th section of Justices to disallow the order of the guar8 & 9 Vict. c. 126, to which the Commis- dians under 4 & 5 Will. 4. c. 76. s. 89. and sioners referred the overseers, only applies 17 Geo. 2. s. 31. to pauper lunatics, and provides that when [PatteSON, J.-But there is no order

made on the parish of Winsford to pay any (1) May 30, before Lord Denman, C.J., Patteson, particular sum, it is only directed to be J., Coleridge, J. and Erle, J.

allowed on account.]

It is very hard that the overseers of the him to his brother there. Upon these facts, parish of Hawkridge should be brought we are of opinion that the lunatic was taken here.

from the parish of Hawkridge, the taking Kinglake, Serj. and Ball, contrà.—The contemplated by the 49th section of statute order for the admission into the asylum 8 & 9 Vict. c. 126, being rather the prowas made under sect. 49. of 9 & 10 Vict. ceedings under which the lunatic is sent to c. 126, the lunatic not being chargeable ; confinement than the mere capture by which but by sect. 84. (the interpretation clause) his personal freedom is first controuled. he is to be considered a pauper by reason It was properly conceded on the argument of his having been sent by a Justice to the that the expression, “the parish from which asylum.

he was taken," is very nearly equivalent to [COLERIDGE, J.-I doubt whether the " the parish from which, or at the instance interpretation clause assists you : a distinc- of some clergyman or officer of which, he tion is drawn in ss. 48. and 49. between was sent,” which is another form of expreslunatics chargeable and not chargeable. sion occurring in other sections. Although Lunatics not chargeable are by sect. 49. to the lunatic was not chargeable, it is clear be sent to the asylum by two Justices. from the form of the order given in schedule The interpretation clause only defines as (E), No. 1, that he is considered as a pauper paupers those who are sent by one Justice.] in respect of his being sent to confinement.

Then, after the Justices have made an Then, the order having been made upon order of maintenance under sect. 61, the the union in respect of a pauper taken from guardians say, that it is to be charged to the parish of Hawkridge, the expenses Winsford, and this allowance is brought ought to have been charged to that parish, before the auditor as part of their account. and not to Winsford; therefore, the allow

[PATTESON, J.—I do not see what right ance of the sum in question against the the guardians had to direct the payment of parish of Winsford ought to be quashed, this sum by one parish rather than another : and that sum ought to be repaid to that the Justices might have done so.]

parish by the parish of Hawkridge, and the Then, why is the parish of Winsford to costs of the parish of Winsford ought to

be paid to that parish by the union. (PATTESON, J.-They may not be fairly

Rule absolute accordingly. charged, but in this rule they seek to charge the parish of Hawkridge.]

Cur, adv. vult. The judgment of the Court was now 1818. delivered by

July 5. S ERLE, J.-In this case the question has

Clergy Mortuary Statute 7 f 8 been, whether the lunatic was taken from

Will. 3. c. 6.-—Justice of the Peace-Evithe parish of Winsford or of Hawkridge. dence-OrderWarrant of Distress. His home was in Hawkridge, and the relatives by whom he was neglected lived A mortuary is not an

oblation" or obthere, and the clergyman of that parish vention" within 7 & 8 Will. 3. c. 6, and is, made the instance to the relieving officer therefore, not recoverable before two Justices in consequence of which a warrant was of the Peace. obtained by that officer to bring him up An information before two Justices stated for examination, under which warrant the that A. and B, as executors of C, the oblunatic was detained in Hawkridge until lations, obventions, and other customary dues finally sent from thence by order of two and payments," arising within the parish of Justices; but the detention under that W. and due from them as such executors warrant commenced at Winsford, in which to J. T, J. M. W. and W. W, had not parish the relieving officer, when proceeding paid," &c. By an order of the to execute that warrant, happened to find Justices, reciting the above information, and the lunatic, during a short visit made by a summons and hearing of the said A. and NEW SERIES, XVIII.-Mag. Cas.

2 H

pay it?

}

AYRTON AND ANOTHER 0. ABBOTT

AND ANOTHER.

same

B, the said Justices determined that there was justly due from the said A. and B, as such executors as aforesaid, to the said J. T, J. M. W. and W. W, the sum of 10s. for and in respect of, and being the amount of the oblations, obventions, and other customary dues and payments," and ordered the payment by the said A. and B, as executors, of the said sum of 10s. :-Held, first, that evidence was properly admitted

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INDEX

TO THE REPORTS OF CASES

CONNECTED WITH

THE DUTIES AND OFFICE OF MAGISTRATES:

FROM TRINITY TERM 1848, TO MICHAELMAS TERM 1849.

Appeal-against order of removal properly dis-
missed where original order not produced as
required by practice of Sessions. No right of
appeal against subsequent removal of pauper.
R. v. Peterborough, 79

Grounds of, need not purport to be signed by
majority of parish officers if so signed in fact;
see beginning of judgment. R. v. Hammersmith
Bridge, 85

against order of removal dismissed at borough
sessions for which notice of appeal given, and
order for costs made in favour of respondents,
appellants not appearing pursuant to their notice.
At next sessions appellants applied to rescind
former order for costs, and be allowed then to
enter and respite their appeal to following sessions,
on ground of mala fides on part of respondents.
Sessions, after hearing facts, having refused to
grant application, mandamus to enter continu.
ances and hear appeal not lie. R. v. Bolton, 139

Poor of parish being under management of
governor and director appointed under local act,
such governor and director parties aggrieved
by order of removal within stat. 13 & 14 Car. 2.
c. 12, and any three of such guardians and direc-
tors may give yalid notice of appeal under stat.
4 & 5 Will. 4. c. 76. Signature of notice by
three of guardians sufficient within stat. 4 & 5
Will. 4. c. 76. 88. 81, 109. R. v. St. George's,
Hanover Square, 160

Sessions no power to make rule of practice
requiring notice to respondents of previous entry
and respite of appeal against order of removaleight
days before sessions next after entry and respite ;
and Sessions having refused to hear appeal be-
cause such rule not complied with, mandamus
granted to compel hearing of appeal. R. v.
Surrey, 175

Ground of appeal that chargeability occa-
sioned by relief given on account of sickness,
which was not shewn to be likely to produce
permanent disability, good though neither order
nor examinations shewed chargeability to be occa-
sioned by relief as given. R. v. Priors Hard-
wick, 177

If examination state that pauper born in

appellant parish, and had gained no settlement
in his own right, and proceed to shew settlement
acquired by pauper's father, by renting tenement
in appellant parish, and grounds of appeal only
deny derivative settlement, respondents, at trial
of appeal, may fall baek upon birth settlement. R.
V. Ellesmere, 181

Ground of appeal that pauper's late husband
"in or about the year 1810 was born in the parish
of P, in the county of S,"-held (on a case re-
served) to be sufficient. R. y. Ealing, 185

See Lunatic.
Apprenticeship--Allowance of indenture of appren-

ticeship should appear on face of it to be locally
made within jurisdiction of allowing Justices,
except in cases where such jurisdiction appears
in order for binding, and allowance made by
same Justices. R. v. Totnes, 46

Indenture of parish apprenticeship stated in
body of it that binding was with approbation of
two Justices, whose names were thereunto sub,
scribed. Allowance at foot of indenture pur-
ported to be signed by Justices before indenture
executed by any of parties, and referred by date
and names of Justices to order for binding. This
a sufficient reference under 56 Geo. 3. c. 139,
allowance being in such case part of indenture.
Allowance purporting to be made by " A. and B,
Justices in and for the West Riding of the county
of Y,” &c.-sufficiently shews jurisdiction, R.
any number of parishes incorporated for relief of
poor under any local act.-Commissioners had
power to include Bristol in district for auditing
accounts, by name of "the Corporation of the
Poor of the City of Bristol.” Fact of corporation
having also collection and administration of funds
not applicable to relief of poor does not affect
power of appointing an auditor under 7 & 8 Vict.
c. 101. Order directed that all accounts of cor-
poration should be audited, and not only those in
respect of relief and maintenance of poor; and
mandamus to corporation commanded production
of all accounts. Writ correct, as all accounts
must be produced; but order shewed that auditor
only to allow or disallow items relating to relief

y. Aldborough, 81
Assault-Upon indictment for assaulting girl nine

years of age, connexion proved, and jury found
“prisoner guilty, the child being an assenting
party; but that from her tender years she did not
know what she was about." This a verdict of

acquittal. R. v. Read, 88
Audit and Auditor By local act corporation con-

stituted for relief and maintenance of poor in
different parishes in Bristol out of common
joint fund. 7 & 8 Vict. c. 101. s. 32. authorizes
Poor Law Commissioners to combine parishes
and unions into districts for auditing accounts,
and by 4 & 5 Will. 4. c. 76. s. 109. (incorporated
with Ý & 8 Vict. c. 101.) “parish" includes city
maintaining its own poor, and "union" includes

and maintenance of poor. R. v. Bristol, 132
Audit and Auditor (continued) - Where solicitor

to parish included within an audit district, has
been elected to, and has accepted office of
auditor, he must perform all duties, and his
audit of all accounts, including those contained
in his own bill of costs, is not, therefore, void,
and his allowances, &c. are reviewable on cer-
tiorari under 7 & 8 Vict. c. 101. s. 35. The
appointment of such person to office of auditor
not looked on by Court with approbation.
Rate for relief of poor made by parish officers
of B. in November 1842, and subsequently
abandoned by them, and fresh rate made and
published in February 1843. Both rates bad for
want of proper declaration under 6 & 7 Will. 4.
c. 96, but at Midsummer Sessions 1843,
appeal against them entered by parish officers
in name of friendly rate-payer, and they con-
sented to order quashing rates, and directing
two new rates to be made in lieu thereof, which
was accordingly done, and new rates were duly
made and published. At October Sessions 1843,
G. W. Company appealed against new rates, but
appeal dismissed, and in December 1843 com-
pany brought up by certiorari orders made at
Midsummer and October Sessions respectively,
and obtained rules nisi to quash them. Previously
to argument of rules parish officers obtained rule
to quash so much of company's certiorari as
related to orders of Midsummer Sessions, which
was afterwards discharged, with costs to be paid
to company. Company's rules to quash order
of Sessions opposed by parish, and ultimately
made absolute. Expenses incurred in these
proceedings unnecessary and improper, and costs
paid by parish officers to their solicitor on account
Thereof, ought not to be allowed by auditor ; and
case not altered by fact of proceedings having
been sanctioned by vestry, or adopted by parish
officers under advice of counsel. Court, on rule
to quash audit and allowances under 7 & 8 Vict.
c. 101. s. 35. disallowed above items of account,
but without costs to prosecutors, and refused to
reimburse auditor costs of defending his allow-
ances. R. v. Great Western Railway Co., 145

See Poor Law Cominissioners.
Autrefois Convict-Plea of, which shews judgment

on former indictment reversed for error in judg-
ment not a good bar to subsequent indictment
for samé offence. When, by reason of some
defect in record, either in indictment, place of
trial, process, or the like, prisoner not lawfully

liable to suffer judgment for offence charged,
he has not been in jeopardy in sense which
entitles him to plead former proceeding in bar to
subsequent indictment. Prisoner lawfully liable
to suffer punishment on erroneous record, until
reversed in court of error. Judgment reversed
same as no judgment, and upon record without
any judgment no punishment can be inflicted;
therefore after judgment reversed on error,
prisoner cannot ever have been in jeopardy

within meaning of rule. R. v. Drury, 189
Bail-Power of Magistrate to accept or refuse bail

in misdemeanour a judicial duty, and action not
lie for refusing to take bail in such cases without
proof of express malice, even though sureties
tendered found by jury to have been sufficient.

Linford v. Fitzroy, 108
Bailment. See Larceny.
Bankruptcy. See Perjury.
Baron and Feme. See Order of Removal Receiv-

ing Stolen Goods.
Bastardy-Order of affiliation purported on its

face to be made by Justices of county of L. at
petty sessions holden in and for petty sessional
division of H. at H. aforesaid, and it appeared
that H. was one of several places within petty
sessional division of B. where petty sessions
usually holden, and that Justices usually acted
for township in neighbourhood of H. including
place where mother resided. Order shewed no
jurisdiction, it not appearing to be made at petty
sessions holden in and for petty sessional division
where mother resided. R. v. Whittles, 96

A woman applied for order of affiliation
to Justices of petty sessional division in county
A, and was refused. She subsequently removed
into county B, and there made second applica-
tion, and Justices made order, which on appeal
confirmed by Quarter Sessions. As petty ses-
sions and Quarter Sessions had general juris-
diction over subject-matter, they were bound to
hear and determine such second complaint; and
although proof on former application having been
dismissed upon merits would have been good
answer to such second application, neither de.
cision of Justices nor of Quarter Sessions could
be reviewed. Upon appeal by putative father,
Quarter Sessions may confirm order without
requiring corroborative evidence, if appellant,
after he has unsuccessfully taken objections in
point of law, retires from case. R. v. Bucking-
hamshire, 113

Order of affiliation bad for defects appear-
ing upon face of it, altogether void; and not
necessary to proceed either by appeal or writ of
certiorari in order to quash it. Where defective
order made, and served, but not acted upon, and
upon second application in same matter two
Justices made another valid order of affiliation,
Justices bad jurisdiction to make second order,
although first not got rid of upon appeal or

or by
writ of certiorari, and indictment for disobedience
of it maintainable. Semble--Per Parke, B., that
second order would have been equally valid if
Justices first applied to had, after hearing com-
plaint, refused to make order. Supersedeas under
hands and seals of Justices indorsed upon,

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