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formed one common fund for the general of holding a settlement to have been gained maintenance and relief of the poor, and for in Hunnington. payment of all parochial charges for the [WILLIAMS, J. referred to The King v. last-mentioned parish; but each of the said Saighton-on-the-Hill (5).] townships, including Hunnington, had

In that case, there were, at the time of respective headboroughs, and repaired their the removal, no inhabitants in Gloverstone highways separately.

to serve the office of overseers. In The In the year 1832 (1), a mandamus was King v. Crowland (6), it was held, that a obtained, directing the Justices of the county pauper might be chargeable on a portion of of Salop to appoint separate overseers for a parish, though there were no overseers. the township of Oldbury; and by the same Hunnington must be considered as if it authority, in the year 1834, separate over- always was a township, and if so, the overseers were appointed for the remaining eleven seers of Hales Owen would be sufficiently townships, including the said township of overseers for that portion forming the townHunnington, from which time separate ship of Hunnington, to enable a party to overseers have continued to be appointed gain a settlement there— The King v. Merefor all the said twelve townships, and each vall (7). Wherever a parish is made up of of the said twelve townships, from the time several vills, each of which ought to appoint of such separation, has continued to main- its own overseers, a settlement may be tain their own poor respectively, as distinct considered as having been gained by relation, and separate parishes.

after such overseers are appointed. The question for the opinion of the Court [COLERIDGE, J.-According to the arguwas, whether upon the before-mentioned facts, ment that must be adopted on the other now that the said parish of Hales Owen had side, no settlement could be gained in this ceased to maintain its own poor, and separate township prior to 1834.] overseers were appointed for the said twelve A decision for the appellants must go to townships, the said paupers were settled in that extent. the said township of Hunnington. If the [Lord DENMAN, C.J.-You assume that Court were of opinion that the said paupers all vills have from time immemorial been were settled in the said parish of Hunnington, liable to the separate maintenance of their the order of Sessions was to be confirmed; if own poor.] not, the order of Sessions to be quashed.

Corbett, contrà. - This is not to be disF.V.Lee, in support of the order of Sessions. tinguished from The Queen v. Tipton. (He -The question is, whether the settlement was then stopped.) gained by the father in that part of Hales Owen which forms the township of Hun- LORD Denman, C.J.—There certainly is nington, can be now considered a settlement some practical inconvenience resulting from in Hunnington. There is no case to shew the state of the law, as regards the right of that a settlement should not be held to be settlement under circumstances like the pregained in Hunnington. The case of The sent, but the principle which was recognized Queen v. Tipton (2) will be relied on on in The Queen v. Tipton, is the same that the other side, but that case is distinguish- must govern this case. The same principle able, as it turned on the precise words of also governed the decision in The King v. the statute 54 Geo. 3. c. 170. s. 3, which is Saighton, where it was held, that a settledeclaratory as to the settlements of bastard ment once acquired in a township, was exchildren born in district workhouses. In tinguished by a settlement acquired in anThe King v. Oakmere (3), the separation of other township, which had, at the time of the township was made by act of parliament, the order, ceased to be capable of having but The King v. Oldbury (4) is in favour overseers, though the necessary effect of the

decision was to leave the pauper without (1) See The King v. the Justices of Salop, 3 B. any settlement at all. So here, though the & Ad. 910; 8. c. 1 Law J. Rep. (N.s.) M.C. 85. party is not settled in the parish of Hales

(2) 11 Law J. Rep. (N.s.) M.C. 89. (3) 5 B. & Ald. 775.

(5) 2 B. & Ald. 162. (4) 4 Ad. & El. 167; s.c. Law J. Rep. (N.s.) (6) 8 B. & C. 711; s.c. 7 Law J. Rep. M.C. 43. M.C. 38.

(7) Burr. S.C. 661. NEW SERIES, XIII.-Mag. Cas.

E

Owen, yet she cannot be considered as set- two of Her Majesty's Justices and keepers tled in any of those parts or townships which of the peacefor the West Riding of the were not independent of the parish of Hales county of York; and the affidavit of service Owen, for the purpose of settlement, at the of such notice stated that the deponent served time the hiring took place, in respect of " J. S, Esq. and T. H. M, Esq., two of which the settlement is sought to be esta- Her Majesty's Justices of the Peace" for the blished. In the case of The King v. Old- West Riding :-Held, that the affidavit was bury, I referred to a passage in Lord Ten- insufficient, by reason of its not stating that terden's judgment in the case of The King the Justices so served were two of the Justices v. Oakmere, as to the effect of the modern before whom the order of Sessions was appointment of overseers to townships which made, and the rule for quashing the certiorari previously had none. It seems to me, how- was made absolute, the special case being ever, that those remarks are not altogether already set down for argument in the Crown sound. Though a vill or township may paper. have existed from time immemorial, it cannot be said, that the obligation on it to main- Upon an appeal against an order for the tain its own poor separately has existed from removal of Matthew Wadsworth, his wife time immemorial, as there may have been no and five children, from the township of Upper means of appointing officers for that purpose. Thong to the township of Cartworth, both in What fell from Lord Tenterden, in the the West Riding of Yorkshire, which was case referred to, was wholly immaterial with heard at the adjourned sessions for the West reference to the decision of the particular Riding, held at Wakefield, on the 5th of case ; and I think that the present case can- January 1842, the order was confirmed, not be distinguished from that of The Queen subject to a case for the opinion of the Court v. Tipton, by which we must be governed ; of Queen's Bench. and the order of Sessions must, therefore, On the 29th of April 1842, according to be quashed.

the affidavit of the appellants' attorney, he WILLIAMS, J.-I am of the same opinion. served T. H. M, Esq., and on the 30th of In deciding this case, we must refer to that April, he served J. S, Esq., who, his affiperiod of time at which the settlement was davit stated, were two of Her Majesty's supposed to have been gained. That was Justices of the Peace for the said riding," before any settlement could be gained in with copies of the notice thereunto annexed, the township of Hunnington. The case of by delivering a copy of such notice to each The Queen v. Tipton is, therefore, directly of them personally. This notice was adin point.

dressed to “ J. S, Esq. and T. H. M, Esq., COLERIDGE, J.-If this question had been two of Her Majesty's Justices and keepers entirely new, I should have wished to have of the peace of the West Riding of the had it more fully argued on the present oc- county of York," and was as follows :casion, but it seems to me that we are bound “ Take notice, that Her Majesty's Court by the recent case of The Queen v. Tipton. of Queen's Bench will be moved on the 7th WIGHTMAN, J. concurred.

day of May next, or as soon after as counOrder of Sessions quashed. sel can be heard on behalf of the township of

Cartworth, in the West Riding of the county of York, that a writ of certiorari may be

issued, to remove into the said court a cer1843.

tain order, made at the General Quarter Nov. 11.

ANTS OF CARTWORTH. Sessions of the Peace held by adjournment Certiorari-Notice of Motion for— Re

at Wakefield, in and for the said riding, on quisites of.

the 5th day of January last, confirming a

certain other order, made by two Justices of The Court of Quarter Sessions having the Peace in and for the said riding, touchconfirmed an order of removal, subject to a ing the removal of Matthew Wadsworth, case, a notice of the intention of the appellant Sarah his wife, and their five children, from parish to apply for a certiorari, was ad- the township of Upper Thong, in the said dressed to "J. S, Esq., and T. H. M, Esq., riding, to the said township of Cartworth,

66

THE QUEEN 0. THE INHABIT

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and in confirming which order a special case tinctly appeared that one of the Justices was reserved by the said Court of Quarter served had not been present at the time the Sessions for the opinion of Her Majesty's order was made; here it is not decided that Court of Queen's Bench. Dated the 29th they were present. If the very names of of April 1842.

these Justices do not appear, yet they must "S. T. and B, Huddersfield, attornies be taken to have been present at the making

for the inhabitants of the said town- of the order, till the contrary appear. In ship of Cartworth.”

The Queen v. How (4), the decision of inThe writ' of certiorari was issued on the dividual Magistrates was sought to be im9th of May 1842, and was in the usual form pugned, and they shewed cause and objected to bring up “all and singular the order and to the notice ; here the notice is mere form, orders made by the Justices between the the case having been granted by the Sesinhabitants of the parishes touching the set- sions, and the proceeding not being of a hostlement,” &c. The writ was forwarded to tile character, but matter of consent. the clerk of the peace, but no return was made till the 9th of June 1843, when the Pashley, contrà. — The notice given is special case was sent up, signed by the not sufficient within the terms of th act chairman. On the 15th of June, the rule 13 Geo. 2. c. 18. s. 5. The affidavit for quashing the order was obtained, and only states service on J. S. and T. H. the special case was set down in the Crown M, two of the Magistrates of the West paper for the present term.

Riding. It should have gone further, and On the 4th of November,

stated that they were two of the Magistrates Pashley obtained a rule, calling on the by or before whom the order was made, defendants to shew cause “why the writ of otherwise it amounts to nothing. It cannot certiorari issued in this prosecution should even be collected that at the time the order not be quashed, and why the defendants was made, the parties on whom the notice should not pay to the churchwardens and' was served were Magistrates. The judgoverseers of the poor of the township of ment of Lord Denman, C.J. in The Queen Upper Thong the costs occasioned to them v. How is decisive. The Justices should in consequence of the issuing of the said have an opportunity of shewing cause--The writ, and the costs of that application.” King v. Nichols (5), and the right parties

should therefore be served. In The Queen Both rules coming on together

v. the Justices of Wilts (6), the affidavit Pickering shewed cause against Pashley's was of service on three Magistrates, who rule.—The certiorari issued within the six months, and the case is now in the Crown

allowed, to remove any conviction, judgment, order, paper. It is too late to move to quash the

or other proceedings, had or made before any Juscertiorari a year and half after it has been tice or Justices of the Peace for any county, city, granted - The King v. Rattislaw (1), The

&c., or the respective General or Quarter Sessions King v. Wakefield (2). Here the objec- thereof, “ unless it be duly proved, upon oath, that tion might have been taken sooner. The

the said party or parties suing forth the same hath or delay in the return to the certiorari has

have given six days' notice thereof in writing to the arisen from the difficulty in settling the Justice or Justices, or two of them, (if so many special case; and one of the grounds on which

there be), by and before whom such conviction, the certiorari is now sought to be quashed judgment, order, or other proceeding, shall be so is, that the affidavit of service of the notice

had and made, to the end that such Justice or Jusdoes not state that the Justices on whom

tices, or the parties therein concerned, may show it was served were present at the time the

cause, if he or they shall so think fit, against the order was made (3). The King v. Rattis

issuing or granting such certiorari.” law will be relied on. In that case it dis

(4) 11 Ad. & El. 139; 8. C. as The Queen v. the

Justices of Shrewsbury and Salop, 10 Law J. Rep. (1) 5 Dowl. P.C. 539.

(n.s.) M.C. 8. (2) 1 Burr. 488.

(5) 3 Term Rep. 281, n. (3) The statute 13 Geo. 2. c. 18. s. 5. enacts, that (6) 9 Dowl.P.C.524 ; s.c. 10 Law J. Rep. (N.s.) no writ of certiorari shall be granted, issued forth, or

M.C. 25.

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V.

were sworn to have been present “at the cases purely a matter of form. Where there trial and hearing of the said appeal.” The is a conviction or other matter, with respect statute 13 Geo. 2. c. 18. is not the less to which the acts of Magistrates are indiviimperative, because the Sessions have con- dually in peril, it is important that they sented to grant a case- - The King v. the should have notice, but when the MagisJustices of Sussex (7). [It was also ob- trates at sessions give a judgment subject jected that the notice was not given by the to a case, the rest is mere matter of form. I right parties, but the argument on this point fully accede, however, to the principle alis omitted.]

ready laid down, and in holding the notice

to be insufficient. LORD DENMAN, C.J.—The only ground WIGHTMAN, J.--I entirely agree with the on which this notice could be held sufficient rest of the Court; and I would further obwould be, that it is to be presumed that all serve, that even if the presumption which is the Magistrates of the West Riding were contended for could, with propriety, be present when the order was made. I think made, these parties could hardly be brought we can make no such presumption. The within the benefit of it, as it is not stated caption, indeed, states that the Sessions were that the Magistrates on whom the notice held before A. B. and C.D. (naming them), was served were Magistrates at all at the and others their fellows, Justices,” &c. But time when the order was made. we cannot presume that those others were present; indeed, we know that such is not Rule absolute for quashing the certiorari. generally the case. We may observe, that it is possible for a certiorari to go to the sessions without any case being granted; and we can draw no line to distinguish as to the Bail COURT. practice. It may be that an order is sought

1843. to be set aside for defect on the face of it, and

Nov. 25. indeed it may be just possible that the Justices might have some cause to shew against Statute 13 Geo. 2. c. 18. s. 5.-Certiothe certiorari, such as that the case was rari. granted under a mistake, or on some condi. tion that has not been complied with. The A writ of certiorari having been quashed, rule must be absolute.

on the ground that the affidavit on which it Williams, J.—The terms of the act of par- had issued did not shew that the two Magisliament are, that “no certiorari shall issue trates

upon

whom notice had been served were to remove any order of Justices, without present at the sessions, the order of which was notice to two of those by or before whom it removed :—Held, that more than six months was made, to the end that such Justices may having elapsed since the making of the order, shew cause against the issuing of the writ.” a fresh writ could not be issued, by reason of Has that been done in this case ? I agree the statute 13 Geo. 2. c. 18. s. 5. with my Lord that it cannot be presumed that all the Magistrates in the division were In this case, the Court having quashed actually present; if so, the certiorari has the writ of certiorari, on the ground that the issued on an insufficient notice, and must be affidavits on which it had been obtained did quashed.

not shew that the two Magistrates upon COLERIDGB, J.-I am of the same opi- whom notices were served had been present nion, though I yield to the objection with at the sessions when the appeal was heard great reluctance, as we cannot but see that (see ante, p. 26.) this mode of arriving at the result by a separate motion is indirect and expensive. The Pickering now moved for a new writ, act of parliament did not contemplate cases pursuant to the former application, in Easter in which a certiorari is moved for after a term, 1842, upon affidavits which stated that case granted at sessions, and it is in such these Magistrates were actually present; that

the respondents knew the fact ; and that the (7) 1 Mau, & Selw. 631.

delay between the hearing of the appeal at the January sessions in 1842, and its final the usual form, and it was the first time settlement in June 1843, had arisen from that such an affidavit had been decided to the obstacles raised by the respondents be bad. themselves. He contended that the provisions of the statute 13 Geo. 2. c. 18. s. 5, PATTESON, J. said, that he would confer which directs that a writ shall not issue, with the Judges who had heard the question "unless such certiorari be moved or ap- of the validity of the prior writ discussed ; plied for within six calendar months next and, on the following day, delivered the folafter the making of the order complained of, lowing judgment :- I have consulted with had been complied with by the parties the other Judges, and we are all of opinion having moved or applied for the prior writ that you cannot by any possibility attach which had been quashed; that there was the former proceeding to this motion.

We only one condition imposed by the act, and must, therefore, consider you as now making that was, that a motion should be made

a new application, which, not being within within the period prescribed, and that the six months, is insufficient to satisfy the writ might issue at any time; that in The terms of the statute. The only mode by King v. the Justices of Sussex (1) no ap- which

any

other conclusion could be arrived plication had been made within six months, at is, by supposing the application to have and that the same observation was applica- been made within the six months, and the ble to The King v. Bloxam (2), and the writ to issue upon that application, after various other cases in which the writ had

their expiration ; but in order to do this, we been quashed upon the ground of its being must say, that the original motion is in some after the prescribed period ; that if the ap- way connected with the present one.

We plication was made within the six months, cannot, however, do that, for the original the writ might issue after their expiration. motion was made on an insufficient foundaIt was to be inferred from the observation tion; it consequently failed, and having of Coleridge, J., “Suppose the application failed it is gone altogether. is made in time, but the Judge takes time

Rule refused. to consider, and grants the application after the six months are expired," in The Queen v. the Inhabitants of St. Mary, Whitechapel (3), that this case differed from The King

1843. v. Rattislaw (4), inasmuch as there one of

Nov. 23. the Justices served was not present, and it was not necessary to decide this point; that

IndictmentPerjury under Customs Act though the general rule of practice in this

-Jurisdiction. court was, according to The Queen v. the Manchester and Leeds Railway Company Where the Court of Queen's Bench will (5), that a party would not be permitted not quash or stay proceedings on an indictto succeed on a second application, who had ment, if there is no obvious defect upon the previously applied for the very same thing, face of the indictment. without coming properly prepared, yet that By 3 & 4 Will. 4. c. 51. s. 29, a party such rule was not inflexible; and that the making a false oath before a Surveyor General facts of this case would justify this Court in of Customs, on any inquiry before him relating allowing a deviation from the general prac- to the Customs, shall be deemed guilty of pertice. There had been no laches on the part jury, and liable to the pains and penalties to of the appellants. The affidavit on which which persons are liable for perjury. And the former writ had been obtained was in by 3 8 4 Will. 4. c. 53. s. 112, no indictment

shall be preferred, or suit commenced for the (1) 1 Mau. & Selw. 63.

recovery of any penalty or forfeiture under (2) 1 Ad. & El. 386; s.c. 3 Law J. Rep. (p.s.) that or any other act relating to the Customs M.C. 115.

or Excise, unless such suit shall be commenced (3) 12 Law J. Rep. (N.s.) M.C. 85.

in the name of the Attorney General, or un(4) 5 Dowl. 539. (5) 8 Ad. & El. 413; s. c. 8 Law J. Rep. (N.s.)

less such indictment shall be preferred under Q.B. 66.

the direction of the Commissioners of Excise.

}

THE QUEEN V. WILLIAM BURNBY.

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