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sum (which he paid) of 11. 10s. per annum, Supposing it to be necessary to shew whesituate at Exley Gate, in your said township ther the indenture was a parish indenture or of Denby, in which he resided for the term not, the words of this examination do suffiof one whole year at the least, and the said ciently shew it. The stat. 43 Eliz, c. 2. s. 5. pauper has ever since continued to reside, provides, that churchwardens and overseers and does in fact now reside, in the same may
poor children to be apprentices till cottage at Exley Gate aforesaid ; and that such man child shall be of the age of twentyin or about the year aforesaid, and at the four years, and such woman child of the age same time that he so occupied and resided in of twenty-one years, or the time of her marthe said cottage or tenement at Exley Gate riage, “the same to be as effectual to all aforesaid, he also rented and occupied an- purposes as if such child were of full age, other tenement at Denby Hall, in your said and by indenture of covenant bound him or township of Denby, consisting of the keeping herself.” The statute, therefore, places a or feeding of a cow, of which he was the binding by indenture of covenant (which owner, by and on the land and premises of must be taken to be the same thing as a James Haigh, of Denby Hall aforesaid, for covenant indenture,) in contradistinction to the space of one whole year, and which was a binding by the Justices. But it is suffiof the value of 101. a year at the least, and cient to shew an apprenticeship, without for which the said pauper paid to the said saying whether the binding was by the James Haigh the sum of 4s. a week during parish or not. This kind of settlement is the whole year, whereby the said pauper created by 3 W. & M. c. 11. s. 8, which did acquire a settlement, and is now legally uses the words, "apprenticeship by indensettled in your said township of Denby. ture.' Then, as to the destruction, that is The respondents, upon this, admitted that positively stated. the facts stated in the said seventh ground of [LORD DENMAN, C.J.-You need not appeal were all true; and it was agreed by labour that point; but we will hear the the counsel on both sides, that evidence suf- other side on the objection to the examinaficient to establish the said seventh ground tion, before we go into the other question of appeal should be taken as having been arising on the grounds of appeal.] adduced by the appellants; but the counsel R. Hall and Pashley, contrà.—The exfor the respondents objected that the said amination should give full information as to seventh ground of appeal did not shew upon the description of the indenture: here it is the face of it a legal settlement in the said ambiguous. The terms “covenant indentownship of Denby. After hearing this ture" do not define any particular sort of question argued, the Court of Quarter Ses- indenture ; nor can it be said that the 43 sions decided, that the said seventh ground Eliz, intended to draw any distinction, any of appeal did not shew upon the face of it a more than if it had used the word “indenlegal settlement in the said township, and ture” only, which would comprehend both thereupon confirmed the said order of re- descriptions of indenture: they both contain moval, subject to the opinion of the Court of covenants. The terms used, “I was put," Queen's Bench.
&c., would rather go to shew that the pauper If the Court of Queen's Bench should be did not bind himself. The terms “single of opinion either that the said examination and unmarried," and the word "occupy, ” is bad, as contended by the counsel for the have been considered ambiguous — The appellants, or that the said seventh ground Queen v. Wymondham (1), The Queen v. does shew a legal settlement in Denby, then the Justices of the West Riding, ( Drighthe said order of removal and the said order lington v. Pudsey,)(2), The Queen v. Old of Sessions to be quashed; otherwise, the Stratford (3). So, “hiring and service," said order of Sessions and the said order of without more - The Queen v. North Bovey removal to stand confirmed.
(4). To the same effect are The Queen v.
Sir G. Lewin and Overend, in support of the order of Sessions.-As to the first point, a “covenant indenture" is a term that gives, on the face of it, sufficient information.
(1) 2 Q.B. Rep. 541; s.c. 12 Law J. Rep. (N.s.) M.C. 74.
(2) Ibid. 505; s.c. 11 Law J. Rep.(n.s.)M.C.80. (3) Ibid. 513; s.c. 11 Law J. Rep.(N.s.)M.C. 115. (4) Ibid.500; s.c. 11 Law J. Rep. (n.s.) M.C.71. the Recorder of Pontefract (5), The Queen Old Stratford, The Queen v. the Recorder v. Whitley Upper (6), The Queen v. Silk- of Leeds (16). stone (7).
R. Hall and Pashley, contrà.—The feedCur. adv. vult. ing and keeping of the cow was a tenement
within the 13 & 14 Car. 2. c. 12. The On a following day, —
words “by and on the land," limits the The Court desired to hear the argument feeding to the produce at the time. Hay on the second point.
previously severed could not be considered
as forming any part of the land. The King Sir G. Lewin and Overend.- It does not v. Piddletrenthide was decided on the authoappear, from the grounds of appeal, that the rity of Kinver v. Stone (17), which turned keeping and feeding of the cow constituted on the question of the profit derived from a tenement: for that purpose, it should the warren, without inquiring into the mode appear that the cow was to be fed all the of feeding rabbits in winter. The King v. year round on the growing produce of the Minster is an authority for the appellants. land- The King v. Bardwell(8), referring to The King v. Minster (9), where the point LORD Denman, C.J.-Upon the first was not taken. Here the agreement would point, namely, whether the examination is include a period when the snow was on the good or not, we entertained some doubt at ground, and when, therefore, the cow could first; but I now think that the terms “covenot have been pasture fed— The King v. nant indenture" are sufficiently descriptive Sutton St. Edmund's(10), The King v. Tis- to allow the Sessions to deal with the case. bury (11). The “keeping and feeding" of As to the grounds of appeal, it appears to a cow does not necessarily imply pasture me, that that which is stated does not comfeeding, any more than the “going” of pose a tenement.
The statement does not sheep, which was held to convey no such import that the cow was to be fed on the meaning in The King v. Thornham (12). growing produce of any particular land, It should have been expressly stated that within the rule laid down in The King v. the cow
was to be pasture fed — The Tisbury, and that class of cases. I think King v. Darley Abbey (13), The King v. the meaning which is sought to be introStoke-upon- - Trent (14). The King v. Pid- duced, as to the words, by and on the dletrenthide (15) was decided on the ground land and premises,” is quite out of the questhat the right to take rabbits gave an inter- tion; and that the description would be est in the land. The words here, “by and satisfied by shewing that the cow was to be on the land and premises,” would seem to fed by hay or other means on the premises. imply feeding sometimes on the land and I think, therefore, that the appellants have sometimes in a cow-house ; and it would given notice of that which they called a have been no breach of contract by James tenement, but could not prove to be so; Haigh to have fed the cow by means other and that the order of Sessions must be than pasture. The statement will not be confirmed. aided by intendment—The Queen v. the PATTESON, J.-I was not present at the Justices of the West Riding, The Queen v. former argument, but I quite agree as to the
effect of the words “covenant indenture."
As to the other point, it is said, that the (5) 2 Q.B. Rep. 448; s. c. 12 Law J. Rep. (N.s.)
notice purports that the cow was to be fed on M.C. 81. (6) 11 Ad. & El. 90; s. c. 9 Law J. Rep. (N.s.)
the produce of the land during the whole year: M.C. 12.
that seems to me a very strong construction (7) 2 Q.B. Rep. 520; s. c. 12 Law J. Rep. (N.s.) to put upon it. It appears to me, on reading M.C. 5.
it, that it would admit of the cow's being (8) 2 B. & C. 161. (9) 3 Mau. & Selw. 276.
fed on the land as long as the produce (10) 1 B.& C.536.
lasted, and by other means when there was (11) 2 Nolan's P.L. 19.
no grass for it to eat. The case of The (12) 6 B. & C. 733 ; s. c. 5 Law J. Rep. M.C. 70. (13) 14 East, 282. (14) 10 Jbid. 496.
(16) 2 Q.B. Rep. 547. (15) 3 Term Rep. 772.
(17) 1 Stra. 678.
King v. Sutton St. Edmund's seems to me
[IN THE EXCHEQUEK OF PLEAS.]
Ex parte Aston.
Commitment-Sureties to keep the Peace inter alia, the milk of a cow, to be kept by
-Gaol~House of Correction. the owner; her keep made up the
necessary value, 101., and she was, in fact, pasture A commitment of a party who refuses to fed; but it was held, that inasmuch as it did give sureties to keep the peace, need not be not appear to have been matter of bargain made to the gaol, but is good if made to the that she should be pasture fed, hiring her house of correction. milk was not necessarily taking a tenement. I thought it would have been contended This was a rule calling upon G. Briscoe and here, that (the value of the tenement being J. Barker, the committing Magistrates, A. P. of 10l.) the keep of the cow would be a Brevitt, the party complaining before them, tenement so far as she was fed on
and the keeper of the house of correction at duce of the land, though not so far as she Stafford, to shew cause why a writ of habeas was fed by other means, as in the very case corpus should not issue to the keeper, comof The King v. Sutton St. Edmund's, where manding him to have the body of William the keep of the cows on the pasture during Aston before this Court, on a day to be named the summer months was admitted to be a by the Court. The ground of the application tenement. Nothing of that sort, however, was, that the commitment ought to have can be collected in this case,
been to the county gaol, and not to the COLERIDGE, J.-I think the Sessions were house of correction. The affidavit, on which right on both points, though, on the first, I the rule was granted, stated, that William was of a different opinion on the former Aston had been committed, and was then argument. It is important to look at the confined in the house of correction, in and wording of the stat. 43 Eliz, c. 5, where an for the county of Stafford, under a warrant “indenture of covenant” is put in contra- of commitment, under the hands of George distinction to a parish indenture. It further Briscoe and John Barker, for refusing to appears, that in this case no application was find sureties to keep the peace towards made to the Magistrates when the indenture Archibald Paul Brevitt. The warrant was was put an end to. As to the second point, in these terms :if we read the statement as any man of “ To all constables and peace officers in common sense must be supposed to do, it the said county, and to the keeper of the would seem, that the cow was to be fed and house of correction at Stafford, in the said kept on the lands and premises of James county. Haigh. The use of the word “tenement" “ Whereas Archibald Paul Brevitt, of in the beginning, will not make that a tene- the parish of Darlaston, in the said county, ment which otherwise would not amount gentleman, hath made oath before us, George to one, but the description is tied up with Briscoe and John Barker, Esqs., two of Her what follows as to the statement of the mode Majesty's Justices of the Peace in and for in which the cow was to be fed ; and that the said county of Stafford, that he is afraid does not necessarily constitute a tenement,
that William Aston, of the parish of Lapley, for the reasons already given.
in the said county, farmer, will do him some WIGHTMAN, J.-I am of the same opinion bodily injury, having so threatened, and hath on both points. The word “ tenement”, is therefore required surety of the peace and explained by what follows; and the "feed- good behaviour against the said William ing and keeping" might, for anything that Aston. And whereas the said William appears, be upon hay made in some former Aston has this day been brought before us year, or on other land. The explanation to answer the said complaint; and upon our given of what is meant by the word “tene- examination thereof, we, the said Justices, ment,” is not sufficient to constitute it a have ordered and adjudged, and do hereby tenement for the purpose of a settlement. order and adjudge, that the said William
Order of Sessions confirmed. Aston shall find sufficient sureties to be
bound with him in a recognizance in the sum offenders, person and persons, either to the of 25l. each, for him to keep the peace, and common gaol or house of correction.” It to be of good behaviour towards the Queen, appears from the 4 Geo. 4. c. 64. ss. 5. and and all her liege people, and especially 10. and 5 Geo. 4. c. 85. s. 10. coupled towards the said Archibald Paul Brevitt, for with the affidavits, that the Justices have the space of one calendar month now next the power of classifying the prisoners, and ensuing. And whereas, the said William that Aston would have been placed in the Aston hath refused, and doth now refuse, same class, and in the same part of the before us, to find such sureties, these are building, if he had been committed to the therefore to require you, the said constables, gaol instead of the house of correction. The forthwith to convey the said William Aston commitment is good however, notwithstandto the said house of correction, and to de- ing the acts relating to gaols. He referred liver him to the said keeper thereof there, to Ex parte Evans (1), Willes v. Bridger together with this precept.
And we do (2), and the 18 Eliz, c. 3. hereby require you, the said keeper, to re- M. D. Hill, contrà.-At common law, ceive the said William Aston into your and by various statutes, the commitment custody, in the said house of correction, and ought to have been to the gaol, of which him there safely to keep for the space of the sheriff is the keeper; and it is submitted, one calendar month, unless he shall, in the that the alteration made by the 6 Geo. 1. mean time, find such sureties as aforesaid, c. 19. s. 2. does not apply to this case ; to keep the peace and be of good behaviour secondly, it does not appear that the party for the term above mentioned. Given under committed has been heard in his own defence. our hands and seals, the 5th day of January Again, the 5th section of 4 Geo. 4. c. 64. 1844.
provides, that where “ any house of correc“George Briscoe (L.s.) tion shall be part of the same building, or
“ John Barker (L.s.)” inclosed in the same boundary wall as, or The governor of the prison stated, in his shall be contiguous to the common gaol, or affidavit in answer, that the gaol and house shall be under the superintendence of the of correction were one and the same building, same keeper and the same visiting Justices, under the same continuous roof, and within it shall be lawful for the Justices of the the same boundary wall, and that he was Peace of the county, &c., assembled at any governor of both; that all persons com- general or quarter sessions from time to mitted for assaults, or for want of sureties time, with the consent of the sheriff of the to keep the peace, either to the gaol or house county,” to classify the prisoners. Here it of correction, were confined in one de- does not appear, from the affidavits, that partment, which was called “Misdemean- the conditions precedent have been complied ants’ Class,” being the only place in the with, that the house of correction is under prison that could be appropriated to so the superintendence of the same visiting numerous a class of prisoners; and that, had Justices, or that there has been any order the commitment of the said W. Aston been at sessions, or any consent of the sheriff. directed to the "keeper of the gaol," instead of to the “keeper of the house of correc- LORD ABINGER, C.B.-I think this rule tion,” the said W. Aston would have been must be discharged. The objection to this placed in the same class and building wherein warrant of commitment is not that the party he then was, and in all respects under the complaining ought not to be committed at all, same rules and regulations as he had been. but that he ought in terms to have been
Martin shewed cause.—The commitment committed to the gaol, and not to the house in this case was legal. The 6 Geo. 1. c. 19. of correction. The first question is, whether s. 2, after reciting the inconvenience of a commitment for want of sureties is legal ; committing to the gaol persons charged with and of that there can be no doubt. The small offences, or for want of sureties, enacts, 6 Geo. 1. c. 19. s. 2, which gave Justices of that it “shall be lawful for Justices of the Peace, within their respective jurisdictions, to
(1) 8 Term Rep. 172. commit such vagrants, and other criminals,
(2) 2 B. & Ald. 278.
THE QUEEN V. THE INHABIT
ANTS OF LEOMINSTER.
the Peace power of committing to houses of the authority of the Gaol Acts only, the correction, does not mention felons, but commitment would be legal. It is enough, parties charged with small offences; and however, to say, that this is a public gaol, accordingly, in the case of Ex parte Evans, under the controul of the king, and not of a where the question was, whether a person private individual; and that there is nothing charged with treason could be committed to in the regulations of the house of correction the house of correction, Lord Kenyon ad- that is inconsistent with the objects of the mits, that the practice of committing felons commitment. to the house of correction cannot be founded GURNEY, B.-I am of the same opinion, on the authority of that statute, which applies and will add only one remark, that the party to inferior offences only; but he says, that complaining of a commitment to the house the practice of committing to the house of of correction has the same remedy for any correction, that has subsisted since 1715, grievances he may sustain, as if he had ought not to be overthrown. Here we have been committed to the gaol, since both the positive statement of the gaoler that the places of confinement are under the regulaparty is committed for want of sureties, and tion of the same individuals. that all persons so committed are confined
Rule discharged. in the department where the prisoner has been placed. I think, therefore, that the keeper of the gaol is justified by the uniform practice, the house of correction being in 1844. fact a public gaol.
Jan. 20; Parke, B.-I am of the same opinion. Feb. 8. The only question is, whether this commit
Appeal,Notice of—Signature of, by Officers ment is valid; I think it is, and that the defendant is in proper custody. The ques
de facto—How far Respondents can object to. tion does not turn on the Gaol Acts that have A notice and statement of grounds of apbeen cited, but is decided by the case of Ex peal purported to be signed by one churchparte Evans. Before the 6 Geo. 1. c. 19, warden and two overseers ; one of those, doubts were entertained, whether the house however, who signed as overseers, being the of correction was a public prison, but that same person who had signed as churchwarstatute has made the house of correction the den :-Held, that the respondents could not king's prison. The practice is to commit set up as an objection to the hearing of the all felons to the house of correction. In Ex appeal, the irregularity in the appointment parte Evans it was held, that houses of cor- of the officers of the appellant parish, that rection were public gaols; and if so, then all parish being bound by the notice. persons committed for want of sureties may be confined there. That is the necessary This was an appeal against an order of consequence of that case. The commitment two Justices for the removal of Wm. Pierce is therefore correct; and this rule must be and Mary his wife, from the borough of Leodischarged.
minster, in the county of Hereford, to the ALDERSON, B.—The principle is, that a parish of Addington, in the county of Bucks. party is to be committed to the king's gaol, At the trial, the appellants being called and not to a private one.
Here the com
upon to prove the notice of appeal and statemitment has been to the house of correction; ment of grounds of appeal, it appeared that and a question has been raised, whether that a notice and statement of grounds of appeal commitment is valid ; it being alleged that had been served upon the officers of the the rules of that place of confinement may respondent parish, fourteen clear days at not be the same as those of public gaols. least before the Sessions. Here, however, it appears that the house of This notice and statement was addressed correction and the gaol are the same build- “ To the church wardens and overseers of the ing; that the same person is the keeper of poor of the borough of Leominster, in the both, and that the regulations of both are also county of Hereford," and ran in the usual similar. So that if the question stood on form, “We the churchwardens and overseers