The KING against WILLIAM LONG. UPON an information laid against the defendant, under 52 Geo. 3. c. 93, for using a dog and a gun, at Dirham and Hinton, in the county of Gloucester; a conviction was drawn up in the following form. "County of Gloucester Be it remembered, that on the fifth Sday of October, in the year of our to wit, 1827. Lord, 1827, at Old Sodbury, in the said county of Gloucester, William Long, of Dirham and Hinton, in the said county, was duly convicted by us, for keeping and using, within three calendar months, now last past, to wit, on the eleventh day of August, in the year of our Lord aforesaid, at Dirham and Hinton aforesaid, a dog and a gun, for the purpose of taking and killing game, without having obtained such certificate as is directed by the statute in that case made and provided, in order to an assessment for the year in which the said William Long did so use such dog and gun, and adjudged to pay the sum of ten pounds for his said offence. Given under our hands and seals, being justices of the peace for the county of Gloucester; and also commisioners acting in the execution of the acts relating to assessed taxes, for the district of Greenbaldash, in the said county of Gloucester. THOMAS BROOKES, L. S. By the 13th rule of schedule L. (a), it is provided, that "it shall be lawful for any two commisioners for executing this act, or for any one justice of the peace of the county, riding, or division, or the shire or stewartry, or for any city, borough, liberty, or place, wherein any offence or offences aforesaid or described in this schedule, shall be committed, such justice being also a commissioner for executing this act; and he and they is and are hereby (a) Of 52 G. 3, c. 93. The Court will not grant a certiorari to remove a conviction under 52 Geo. 3. c. 93, for using a dog and gun without a cerground that jurisdiction does not appear on the face of the conviction, without an affidavit, negativ tificate, on the ing the jurisdiction. Costs of shewing cause against a rule in the first instance are never given. 1827. The KING บ. LONG. required, upon information or complaint to him or them made, of any such offence or offences committed within the district where he or they shall act as such commissioner or commissioners (a), within three calendar months after the offence shall be committed, to summon the person or persons accused, and also the witnesses on either side, to appear before him or them, and upon the appearance of the person or persons accused, or in default of their appearance according to such summons, to proceed to hear and determine the matter in a summary way; and upon due proof made thereof, either by the voluntary confession of the person or persons accused, or by the oath of one or more credible witness or witnesses, to give judgment for the penalty or penalties, or for such part thereof, to which part thereof the said commissioners or justice shall think proper to mitigate the same, and the same not being in any case mitigated to less than one moiety of the said penalty or penalties. Campbell now moved for a certiorari to remove the above conviction into this Court. Want of jurisdiction appears on the face of this conviction. A form of conviction is given by the statute; and on the other side it is meant to be said that the justices have pursued that form. The form requires the offence to be stated, and in stating the offence, the jurisdiction would necessarily be shewn. The certiorari is taken away (b) only where there is jurisdiction. [Bayley, J. A conviction by magistrates, I believe, is no defence in trespass where there is no jurisdiction (c)]. In Rex v. The Justices of Somersetshire (d), it was held, that the certiorari was not taken away, because the justices of petty sessions had no jurisdiction per (a) See Rer v. Edwards, 1 East, see Rer v. Allen, 15 East, 333; Rex (d) 8 D. & R. 733; 5 B. & C. 816. S. C. saltum. [Bayley, J. There was there no color for saying that the act was done in pursuance of the statute. It may be that the magistrates have no jurisdiction, or that, having jurisdiction, they have omitted to set it forth. The defendant should shew by affidavit that there was no jurisdiction]. That may be done even where jurisdiction appears on the face of the conviction. Suppose the persons who convict had not called themselves magistrates at all, would it have been necessary to produce an affidavit, stating that A. B. and C. D., who merely described themselves as esquires on the face of the conviction, were not justices or commissioners? Clearly not. Here it is not said that they were commissioners within the district. There is a material distinction between an order and a conviction. If any doubt exists, it will be better to grant the certiorari, and discuss any objections to it upon the return. Chilton, contrà, who was to have shewn cause in the first instance, was stopped by the Court. BAYLEY, J.(a)-In the absence of doubt, it would not be right to suffer parties to incur the expense of a further discussion. The statute directs that no "conviction of such commissioners, or justice, shall be removable, by any process whatever, into any other court." The object of the legislature was to avoid those questions which might be raised in this Court upon a certiorari. Now, if the conviction were removed by certiorari into this Court, it would be competent to the party convicted to take the objection which has now been urged. In other cases, where the want of jurisdiction is shewn by affidavit, the rule as to the certiorari being taken away, does not apply. If it were made out by affidavit, that the place where the offence was committed was not within the district, I should say that a certiorari ought to issue. 1827. The KING V. LONG. HOLROY D, J.-Concurred. Rule refused. (a) Lord Tenterden, C.J., and Littledale, J., were absent, 1827. The KING บ. LONG. Chilton applied for the costs, on the ground of being brought here to oppose the rule by a notice of the intended application. BAYLEY, J.-Costs are never given upon shewing cause against a rule in the first instance. GITTON V. RANDELL. A defendant GEORGE moved to change the venue from Middlesex under terms of change the the common affidavit. to Shropshire, on the usual affidavit, but stated that the defendant was under terms of pleading issuably, and taking short notice of trial for the sittings after this term. In Tidd, 628 (a), it is said, that a defendant cannot move to change the venue after an order for time to plead, where the terms are, to plead issuably, and take short notice of trial at the first or other sittings within term, in London or Middlesex; because a trial would by that means be lost. Lord TENTERDEN, C. J.-This would be in violation of the undertaking which the defendant has given. If the cause is tried at the sittings after this term, the plaintiff may have his judgment in Hilary term; whereas, if the venue is changed, he cannot have it till Easter term. The passage (a) 7th edition; 8th edition, 658. In Shipley v. Cooper, 8 T. R. 698, it is stated that the Court made absolute a rule to discharge a rule which had been obtained for changing the venue, where the defendant was under terms of taking short notice of trial for the first sittings after term. From the marginal and referential notes to that case, it would seem, however, that it was the first sittings in term for which the undertaking had been given. The restriction, real or apparent, of this rule to sittings in term, may have arisen either from not adverting to the difference between an issuable and a non-issuable term, or from the peculiar importance which appears to have formerly attached to a trial in term, the loss of which only it was that entitled a plaintiff to require that a bail bond, or an attachment against the sheriff, should stand as security. i referred to is affirmative only, and the reason given applies to the present case. LITTLEDALE, J.-The defendant can change the venue only upon laying special grounds before the Court. 1827. GITTON v. RANDELL. Rule refused. BEETE V. BIDGOOD. THIS cause was tried before the Lord Chief Justice Abbott, in London, at the sittings before Michaelmas term 1826, when the jury found a verdict for the plaintiff, damages 4,2381., subject to the opinion of this court on the following case. Upon the sale of an es tate,it is agreed that the purshall be paid by instalments, with interest at 6/.per cent. The chase money The declaration was upon a promissory note, of which payments rethe following is a copy :— London, 10th March, 1821. "On the 1st July, 1825, we promise to pay to Joseph Beete, Esq., his executors or administrators, at the house of Messrs. Sandbach, Tinne, and Co., of Liverpool, the sum of three thousand nine hundred and sixty-eight pounds, for value received, in second instalments, with interest included, as expressed and specified in agreement for the sale of his moiety in plantation Met en Meer Zorg, in the colony of Demerara, to John Newton. John Newton. H. F. Sloane." The defendant pleaded the general issue. On the trial it was admitted, that the signature H. F. Sloane, to the said promissory note, was the signature of the defendant, who had changed his name to Bidgood; that the signature "John Newton" to the same promissory note, was served under the name of interest are in substance part of the pur chase money. Unless the sale be merely colorable, the transaction is not usurious. |