1328. The KING 0. ALL SAINTS, the case. In The King v. Bilton (a), it was held that the examination must be authenticated, and does not prove itself, though in the form prescribed by the act. This is not an instrument which time can cure; it may be put away in the parish repository, and not appear again for years. In the execution of powers all circumstances must be strictly complied with. The King v. Austrey (b). The power given to these magistrates ought to have been strictly pursued ; it was a ministerial act. [Bayley, J. If ministerial, the magistrates might do it separately.] It ought to appear on the face of the instrument that they were acting pursuant to the statute: it was a special and limited authority. It does not appear that the magistrates had any jurisdiction over the place in which the soldier was quartered; nor does it appear that the examination took place within the jurisdiction. If the party could be summoned ten miles from the place where he was quartered, the inconvenience would be greater than that intended to be remedied by the statute; the party may be summoned a second time under the 34th section. In The King v. Chilverscoton (c) this Court held that an order of removal, on the face of which it does not distinctly appear that the magistrate had jurisdiction, is an absolute nullity. In The King v. Hall (d) the conviction of a party, as a rogue and vagabond, under 17 Geo. 2, c. 5, s. 1, for deserting his family, was held bad, for not shewing that the family was chargeable to the parish. So a conviction under 23 Geo. 3, c. 88, for not alleging that the party had implements of housebreaking upon him at the time of his apprehension. The King v. Brown (e). [Bayley, J. It is conceded that upon a conviction you must shew jurisdiction, also upon orders.] In the case of all inferior jurisdictions, the authority must appear upon the face of the instrument. The King v. Bagshaw (ƒ), The King v. Liverpool (g), The King v. Bawburgh (h). (a) 1 East, 13. (b) 1 Phill. Evid. 4th ed. 469. (c) 8 T. R. 178. (d) 3 Burr. 1636. (e) 8 T. R. 27. (ƒ) 7 T. R. 363. (g) 4 Burr. 2224. (h) 3 D. & R. 338, 2 B. & C. 222, 2 D. & R. M. C. 23. BAYLEY, J.-In this case I think there is not enough to make the examination evidence. The Mutiny Act gives a special power in certain cases; but for the statute this examination would be extra-judicial. By that statute (a), if any non-commissioned officer or soldier shall have wife, child, or children, two justices may summon him where he is quartered, to make oath of the place of his last legal settlement, who shall obey such summons, and make oath accordingly and the justice shall give an attested copy of such affidavit, to be delivered to the commanding officer, to be produced when required, which attested copy shall be at any time admitted in evidence as to such settlement before any justices or at any sessions; and if he be summoned again to make such oath as aforesaid, then, on such attested copy of the oath by him formerly taken being produced, he shall not be obliged to take any other or further oath, with regard to his settlement, but shall leave a copy of such attested copy of examination if required. The justices, therefore, have no jurisdiction, except in the case of a soldier, nor unless the soldier is quartered within their jurisdiction. In the Banbury peerage case, it was resolved, in 1809, by the judges, on a question put to them by the House of Lords, that a bill in equity or depositions cannot be received in evidence against a party not claiming under the plaintiff or defendant in the chancery suit. Here the facts constituting the jurisdiction, namely, that the examinant is a soldier, and quartered within the jurisdiction, must be shewn, either aliundè or ex visceribus. I think it should have been made out aliundè. In The King v. Warminster (b) it was proved aliundè that the party was a soldier, and quartered within the jurisdiction. Here it merely appears upon the face of the examination, and you would make the examination proof of facts giving the jurisdiction. But even these facts are not (a) 22 Geo. 3, c. 4. And see 5 Geo.4, c. 13, s. 72, by which the power of examination is given to one justice, and both the examina tion and the attested copy are di- 1828. The KING V. ALL SAINTS. 1828. The KING v. ALL SAINTS. represented to have been stated on oath; they are merely introduced as part of the description of the examinant. We are asked to supply by construction and intendment that which must, at least, have been proved before the justices. In the case of The Queen v. Gouche (a) the Court said that they would presume jurisdiction; but that decision was overruled in The King v. Halling (b), and The King v. Hulcott (c), in the last of which cases Lord Kenyon, upon full consideration, says, "As it does not appear on the face of this order that the justice had jurisdiction, the pauper was not legally discharged from her service. There is no material distinction in principle between this case and cases of orders. If it were sufficient to state the jurisdiction upon the face of an order, there would be no difficulty here. If that be not sufficient, there must be proof aliundè to make the examination evidence." Here the facts necessary to give the jurisdiction are not all stated upon the face of the instrument, nor are they proved aliundè. HOLROYD, J.-The authority given by the Mutiny Act is only to magistrates who have jurisdiction within the district. The distinction between courts of special and general jurisdiction is laid down in Miller v. Seare (d); and though that case is overruled (e) as to the point there decided, that an action would lie against commissioners of bankrupt for a wrongful commitment, that distinction is well established. The rule omnia præsumuntur ritè esse acta does not apply to the facts which constitute the jurisdiction. In a plea of justification all the facts which shew the jurisdiction must be stated, and they must also be proved. Here those facts neither appear on the face of the document nor are shewn aliundè. It is, therefore, not necessary to decide whether it would have been sufficient if the facts (a) 2 Salk. 441; 2 Lord Raym. 840. (b) 1 Stra. 8... (c) 6 T. R. 583. (d) 2 W. Bla. 1141. 5. (e) In Doswell v. Impey, 2 D. & R. 350; 1 B. & C. 163. had appeared on the face of the document. The case referred to, with regard to wages in husbandry (a), is directly in point. 1828. The KING v. ALL SAINTS. Order of Sessions quashed. (a) Rex v. Hulcott, ante, 668. MARSDEN and another v. STANSFIELD. THIS was an issue directed by this Court, for the purpose Upon an issue whether teneof trying" whether a certain messuage or tenement, with ment A. is sithe lands and appurtenants thereunto belonging, commonly tuate within the chapelry called or known by the name of Hill Barn, in the occupa- of B.,a witness tion of the said defendant, or any part thereof, is situate occupying rateable prowithin the chapelry of Littleborough, in the county palatine perty in B. is of Lancaster, and the bounds and limits thereof;" the said competent to prove the affirplaintiffs thereupon maintaining the affirmative, and the said mative. defendants the negative. This issue came on to be tried before Mr. Baron Hullock, at the summer assizes for the county of Lancaster, 1826 (a), and upon that trial one James Cryer, then occupying rateable property in the said chapelry of Littleborough, was called as a witness on behalf of the plaintiffs, and upon objection made as to his competency by the defendant's counsel, was admitted. This Court was therefore moved, in the following Michaelmas term, for a new trial, upon the ground of the reception of such witness being improper, and was pleased to direct that a special case should be stated raising the question of the admissibility of the above witness. The questions for the opinion of the Court are, 1st, Whether the said James Cryer be a competent witness on the said issue under the above circumstances. 2dly, If he be incompetent at common law, whether such (a) Counsel for the plaintiffs, Cross, Serjt., and Courtney; for the defendant, Scarlett and J. Williams. 1828. MARSDEN D. STANSFIELD. incompetency be not remedied by 54 Geo. 3, c. 170, s. 9 (a). No question of competency Courtney, for the plaintiffs. is raised by the special case. creates any liability. It should have been shewn that all tenants within the chapelry paid rates. The Court cannot go out of the case without exceeding its jurisdiction; for whether this estate is rateable or not, is matter of ecclesiastical cognizance. No advantage is intended to be taken of any impropriety in the mode of statement, but the defendant had no better case to state. The allegation is not that the witness was rated, but that he was the occupier of rateable property. In Rex v. Kirdford (b) it was held, that mere liability to be rated was no objection to the witness's competency. So in an action before Mr. Baron Burland, at Salisbury, on a penal statute, where the penalty was given to the parish (c). Rhodes v. Ainsworth (d) will be relied on by the defendant; but that case is distinguishable from the present in three points. There the witness was the owner of the inheritance, and had therefore a permanent interest (a) Which enacts, "that no inhabitant or person rated, or liable to be rated, to any rates or cesses of any district, parish, township, or hamlet, or wholly or in part maintained or supported thereby, or executing or holding any office thereof or therein, shall, before any court or person or persons whatsoever, be deemed and taken to be, by reason thereof, an incompetent witness for or against such district, parish, township, or hamlet, in any matter relating to such rates or cesses; or to the boundary between such district, parish, township, or hamlet, and any adjoining district, parish, township, or hamlet; or to any order of removal to or from such district, parish, township, or hamlet; or the settlement of any pauper in such district, parish, township, or hamlet; 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 maintenance 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." (b) 2 East, 559. (c) Cited by Buller, J. in Rer v. Prosser, 4 T. R. 20. (d) 1 B. & A. 87. |