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them also. Upon the trial of the appeal at overseers,” at the commencement of the the Sessions, it was objected that the guar- notice, and not to add any further descripdian alone ought to have signed the notice, tion. The validity of such a notice, under and that he should have described himself these circumstances, is of considerable imas guardian. This objection was successful, portance. and the appeal was thereupon dismissed.

R. Hall now moved for a rule nisi for a PATTESON, J.-It seems to me perfectly mandamus to the Justices to enter continu- clear, that as soon as a guardian is appointed, ances and hear the appeal.— The signatures the whole of the powers of the parish officers of the church wardens and overseers were as to these matters become vested in him. superfluous, and did not vitiate the notice; This is in his capacity of guardian, and quà it is the same as if an inhabitant, as well as overseer he has no authority. A notice of the church wardens and overseers, in an ordi- appeal ought, therefore, to be signed by him nary case, had signed. It is usual to procure in his character of guardian ; and if he omits their signatures, in order to obviate any to sign it as such, it is a blunder. The question as to the validity of the appoint- Sessions, I think, were quite right, and there

ent of the guardian, but if he be regularly will, therefore, be no rule. appointed, their names are mere surplusage.

Rule refused. There is also a doubt under section 7, whether the overseers ought not to be parties to the notice, for its terms only seem to apply 1843. | THE QUEEN v. LORD ASHBURto cases in which notices are to be given to, Nov. 23. S and not by the overseers, and for other pur

Indictment - AmendmentVenue-Cerposes the guardian is declared only to be an

tiorari. overseer. The exclusive powers, too, of the guardian are confined to those matters which After an indictment has been preferred at relate to the care and management of the the Central Criminal Court, and removed by poor, and there is an obvious distinction certiorari into this court, and set down for between them and the removal of paupers, trial at the sittings, having the venue such as or appeals against removals. The act also is prescribed by 4 - 5 Will. 4.c. 36. s. 3, and contemplated that notices of appeal would no other, the Court will, by consent, order an still be served on the overseers as the proper amendment to be made in the venue, both in parties.

the margin and body of such indictment, in (PATTESON, J.-Upon the appointment order to admit of its being tried by a London of a guardian, the overseers cease to have or Middlesex jury. any power. They can then do nothing. The direction to the overseers to hand over Erle had, in the present term, obtained a notices, affords no argument; it only applies rule calling on the defendants to shew cause to cases where ignorant people might deliver why a procedendo should not issue in this such matters to them.]

case, and the indictment be sent back to the Then with regard to the other objection Central Criminal Court, or why the indictthat the guardian was not so described, this ment should not be amended by inserting a was unnecessary, for the parties could ascer- proper venue. It appeared that this was an tain what his authority was; and, at all events, indictment for a conspiracy which had been he was described as an overseer, which cha- preferred at the Central Criminal Court in racter as guardian he is expressly stated to February 1842. The venue in the marfill. The words are, that “he shall, to all gin was “ Central Criminal Court, to wit," intents and purposes, except with regard to and the material facts were alleged to have the making and collecting of rates, be an taken place within the jurisdiction of the overseer of the poor." The notice, there- said court, according to the provisions of fore, sufficiently discloses his authority, and 4 & 5 Will. 4. c. 36. s. 3. in that respect. the capacity in which he signed it. The The indictment had been removed by cerpractice too has always been to include him tiorari, and notice of trial had been given for under the general description of the heading, the sittings after Easter term, 1842, and “We, the undersigned churchwardens and made a remanet at those sittings, and had


subsequently been postponed. The rule of the case by the Sessions ; but in this inwas obtained in consequence of the judgment stance we may say, that there is nothing in The Queen v. Stowell(1), in which it was whatever in the objection. held that an indictment found at the Central

Case sent back to the Sessions. Criminal Court could not be tried by a Middlesex jury, without its being averred that the material facts had taken place within the county.

The Solicitor General and Kelly appeared 1843. THE QUEEN V. THE INHABITfor the defendants, and consented to any Nov. 18. ANTS OF STOKE-UPON-TRENT. amendment being made to remove the objection, which the Court had power to order.

Hiring and Service-Evidence-Custom

-Written Contract-Special Case. LORD DENMAN, C.J.-We are all clearly

Where a workman is hired for a year to of opinion that this Court has power to work at a particular trade, under a written order such an amendment to be made by agreement, which says nothing as to any consent, after the certiorari has issued. periods of absence allowed to the workman,

Rule absolute.

parol evidence may be given that it is the custom of the particular trade for the work, men employed in it to take certain holidays, and to absent themselves on such occasions

from their work without the permission of 1843. THE QUEEN V. THE INHABIT

their masters. Nov. 18. S

The Sessions should not send up a case AppealNotice, Sufficiency of Special with a view to its being re-heard by them, but Case.

should decide both ways, provisionally.


It is not an objection to a notice of appeal Upon an appeal against an order of two against an order of removal, that such notice Justices for the removal of Benjamin Tile, does not mention the names of the Justices his wife, and three children, from the parish cho made the order.

of Stoke-upon-Trent, in the county of StafThe Court of Quarter Sessions should not, ford, to the parish of Trentham, in the said in a special case, ask questions of the Court, county, the Sessions quashed the order, subwith a view to a re-hearing of the case. ject to the opinion of this Court on the fol

lowingUpon an appeal against an order of re

CASE. moval, it was objected by the respondents The pauper's father was settled in the that the notice of appeal was insufficient, parish of Trentham. In the month of Nobecause it did not state the names of the vember 1815 the pauper was hired by and Justices who made such order. The Ses- served Messrs. Bourne & Co., china-manusions thought the objection should prevail, facturers, of Trentham, in the respondent and confirmed the order, subject to a case parish, from the 11th day of November, for the opinion of the Court upon the ques

1815, for nearly two years. After the tion, whether such notice was sufficient. If pauper had been in the service some time, the Court should be of opinion that such he signed a writing in a book, and which notice was sufficient, the case to go back to was also signed by other workmen, at the Sessions to be re-heard.

different times, and was as follows: Baines, in support of the order of Sessions. “ Plate and dish workers. This day agreed

with Ralph Bourne to serve Messrs. Bourne, LORD DENMAN, C.J.-We do not wish Baker & Bourne, from the 11th of Novemto encourage the practice of asking questions ber next until the 11th of November 1817, of this Court with a view to a re-hearing at prices, good out of oven, as per opposite

side : we agree to lose no time on our own (1) 12 Law J. Rep. (n.s.) M.C. 111, account, to do our work well, and to behave New SERIES, XIII.-Mag. Cas.


ourselves well in every respect as good ser- agreement which ought to have been received vants. Witness our hands, the 10th day of by the Court ? Secondly, whether, under January 1815.” This writing was signed the circumstances stated, evidence was adby none of the masters, but was always left missible to shew an universally prevailing in their custody. On the opposite side of custom among china-manufacturers to allow the book was a statement of the prices to platers and dishers holidays at certain fixed be paid for the making of the plates and times of the year? Thirdly, whether the dishes at per dozen. It was objected, on the questions above stated, or any of them, were part of the respondents, that the above admissible? If the Court were of opinion writing was not a valid agreement, because that the writing was an agreement that ought it was not stamped, and not signed by the to have been received, and that the evidence masters, but the objection was overruled, of the custom was inadmissible, and that and the writing was read. On the part of the questions were improper, then the order the respondents, evidence was offered to of Sessions to be confirmed; but if the Court shew that an universal custom prevailed should be of opinion that the written eviamongst china-manufacturers to allow holi- dence ought not to have been received, or days at certain fixed times of the year to the that evidence of the custom was admisplaters and dishers, and that, at these times, sible, or that either of the questions was the latter could, notwithstanding the above proper, then the Court of Quarter Sessions writing in the book, absent themselves from were to re-hear the appeal. their work without their masters' permis- Godson and Whitmore, in support of the sion. This evidence was objected to as order of Sessions.-(The objection as to the inadmissible, and was rejected. The pau- stamp was abandoned by the respondents.) per was called by the appellants, and proved Then, as to the first question, it was not that he was hired by and served Messrs. necessary that the writing should have the Bourne & Co. for nearly two years, from signatures of the masters

The King v. the 11th of November 1815, as a plater; Houghton-le-Spring (1). Here, there has that during that period he had his Sundays been actual service under it, and the questo himself, doing no work on those days; tion of mutuality, therefore, does not arise. that he absented himself from his work at As to the second point, if it was meant, by Easter for two or three days, and at the the evidence, to vary the effect of the conwakes, and in August; and that, after these tract, it would be inadmissible. holidays, he returned to his work. The [COLERIDGE, J.-Could you not shew, in pauper also proved that he always had work answer to evidence of absence by the serof his masters' that he might have done on vant, that leave was given by the master ? the play-days. On the part of the respon- and, in the same way, could not a custom, dents, the following question was asked the for the servant to absent himself at particupauper :-"At the time of the hiring or lar days, be shewn ?] signing the book, was anything said as to Absence by custom would have been imthe holidays or Sundays that you were to material, and would not prevent the settlehave to yourself ?" This question was ob- ment being acquired— The King v. Horwick jected to, as being a contradiction of the (2), The King v. St. Agnes (3), The terms of the writing in the book; also, the king v. Birmingham (4), but anything following question :-"Is it the custom of said at the time of the agreement with persons employed in the trade of dish and reference to the custom would be inadmisplate makers, under such a contract as this, sible. to have certain holidays in the course of the Lee and Yardley, contrà.-The questions year, and the Sundays, to themselves ?" were put for the purpose of explanation, and This question was objected to, on the ground were not inconsistent with the written agreethat evidence of the custom of the trade was ment. That agreement did not exclude the inadmissible. The objections to both the questions were allowed by the Court. The

(1) 2 B. & Ald. 375.

(2) 10 East, 489. questions for the opinion of the Court were

(3) Burr. S.C. 671. First, whether the writing in the book was an

(4) 1 Nolan's P.L. 378.


custom sought to be proved-Holding v.

BAIL COURT. Pigolt (5), Hutton v. Warren (6). The

1843. object, no doubt, was to get at the fact, that

Nov, 21. this, in truth, was an exceptive hiringThe Queen v. Threkingham (7).

Commitment-Statute 7 8 Geo. 4. c. 29.

s. 26.- Deer Stealing. LORD DENMAN, C. J.-I think that, if the evidence of the custom had been ad- A warrant of commitment, on a conviction, mitted, the Sessions would not have thought must recite a conviction for an offence over the contract was to except part of the time, which the committing Magistrate had jurisand I think the Sessions ought to have diction ; and the Court will not presume a conadmitted it. It must be taken that both viction to be good, which, according to the parties knew what the custom was. This

recital, shews a want of jurisdiction. is not inconsistent with the contract. The

A commitment, under 7 f. 8 Geo. 4. c. 29. trade, indeed, might not be constantly going s. 26, reciting a conviction, that the defenon for a whole year. The case must, there- dant did unlawfully kill and carry away fore, go back to the Sessions, though I think one fallow deer, the property of Her Majesty this is an improper practice. The Sessions Queen Victoria, against the form of the stashould decide provisionally both ways, leav- tute,Held, bad, for omitting to state that ing the event to depend on the judgment of the deer was in the uninclosed part of some the Court (8)

forest, chace, or purlieu. PATTESON, J.—The contract was general; The defendant, with one Charles Lilley, and, by the evidence, no direct contradiction had been committed, on the 14th of Sepis introduced. The contract is not to work tember 1843, to the house of correction at from day to day, or every day, but generally Winchester, under the warrant of a Magisfrom one time to another.

trate, which recited, that they were con

victed, on the 7th of September inst., at WILLIAMS, J.-There was no stipulation the parish of Milton, in the said county of as to time in the agreement, which is very Southampton, for that they “did unlawfully general. I think that the evidence did

kill and carry away one fallow deer belongnot go to contradict anything in it, and ing to Her Majesty Queen Victoria, against was improperly rejected. The custom of the form of the statute in such case made the trade, indeed, may be said to be im- and provided," and adjudged them to pay pliedly taken as part of the contract, and the sum of 501. each, and in default of paythe evidence is tendered to shew what that

ment to be imprisoned for four calendar custom is.

months, and commanded the keeper of the

house of correction to imprison them during COLERIDGE, J.--I have always under- that period, unless the penalty was sooner stood that the general usage of trade may paid. be given in evidence on the ground that King being now brought up under a writ the parties contracted with reference to it. of habeas corpus, to which the keeper of In this case, I do not see how the evidence the house of correction made the above rewas inconsistent with the written contract.

turn, -
Order of Sessions quashed, and
the case sent back to be re-heard.

Barstow moved to discharge him out of custody.—The commitment is invalid, inas

much as it recites a conviction, which dis(5) 7 Bing. 465; s. c. 9 Law J. Rep. C.P. 124.

closes no offence over which the Magistrate (6) 1 Mee.& Wels. 466; s.c. 5 Law J. Rep. (n.s.) Excb. 234.

had jurisdiction. The statute 7 & 8 Geo. 4. (7) 7 Ad. & El. 866.

c. 29. s. 26. provides, that "if any person (8) See The Queen v. West Houghton, ante, 41. shall unlawfully and wilfully course, hunt,

snare, or carry away, or kill or wound, or attempt to kill or wound, any deer kept or being in any uninclosed part of any forest, long as it contains a general statement that chace, or purlieu, he shall, for every such the party has been convicted, its purpose is offence, on conviction thereof, before a answered. Justice of the Peace, forfeit and pay a [Patteson, J.-According to that argusum not exceeding 501.” That the deer ment, it would be good if the Magistrate should be in some uninclosed part of a were merely to say, “ the defendant has been forest, chace, or purlieu, is a necessary convicted by me in a penalty: receive him portion of the offence, and in that respect into your custody." Looking at The King the conviction is defective. The prior part of v. Rogers, it appears to me to be quite conthe section, which makes it an offence if the trary to what I decided in The Queen v. deer be in any inclosed part of a forest, &c., Chaney.] or any inclosed land wherein deer are usually That case is perhaps distinguishable: the kept, declares the offence to be felony, over commitment stated a continuance to navi. which the Justice has no power of summary gate a ship after a pilot had offered his conviction. For anything that appears on

services, which constituted no offence per se. this commitment, and on the conviction [Patteson, J.-It was an offence if the recited in it, the deer in question may have party knew it; so here it would be an been in such an inclosure; or it may

have offence if the deer were in the uninclosed been in some other uninclosed place, not


of a forest. What a monstrous thing being part of any forest, chace, or purlieu, it would be, that there should be a bad where it would be no offence to kill it. warrant of commitment, and a bad convic

tion, as far as we can see, and that the party Smirke was then called on to support the cannot be discharged. I cannot, however, commitment.-It must be admitted that the overrule the decision of the full Court, withconviction would be bad if it were in the out taking time to consider.] form recited; but the warrant need not be so precise ; and so long as it states that the Barstow.— The King v. Rogers is not defendant has been convicted, it suffices, applicable; the warrant there recited a perand the Court will presume, till the contrary fectly good conviction, so far as the jurisis shewn, that the conviction was regular. diction of the Magistrates was concerned ; This is provided for by the 71st section, but an objection was raised, that the penalty which enacts, "that no warrants of commit- was not duly awarded. That was a mere ment shall be held void by reason of any formal matter; it shewed no want of jurisdefect therein, provided it be therein alleged diction, like this commitment. If the arguthat the party had been convicted, and there ment on the other side were sound, a warrant be a good and valid conviction to sustain of commitment, directing the gaolers to rethe same. Then, in The King v. Taylor (1), ceive the body of A. B, duly convicted before it was held, that although the warrant of me, without specifying any offence at all, commitment is plainly defective on the face would be valid. Here, too, the certiorari of it, yet, if it shews there has been a con- is taken away, which creates a distinction viction, the Court will not notice the defect, between this and the cases quoted, for it till the conviction itself is brought before deprives the party of any means of seeing them. The King v. Rogers(2) is an autho- whether the conviction be right. It may be rity to the same effect. That decision would conceded, that a warrant of commitment certainly appear to be at variance with the need not contain the same nicety as an injudgment in The Queen v. Chaney (3); but dictment; but it is absolutely necessary it it was not cited in the argument, otherwise should shew some jurisdiction; and here the the decision might have been different. The jurisdiction, which appears to have been object of the section of the act was to render exercised, was no jurisdiction at all. the form of the warrant immaterial, and so

PATTESON, J.-Wickes v. Clutterbuck (4) (1) 7 Dowl. & Ryl. 622. (2) 1 Ibid. 165.

was a case in which the party had been (3) 6 Dowl. P.C. 281 ; 8. c. 7 Law J. Rep. (n.s.) M.C. 65.

(4) 4 Bing. 433 ; s.c. 3 Law J. Rep. C.P. 67.

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