PATTESON, J.-In this case, it appeared that the examination on which the order of the Magistrates was founded, shewed no ground for the removal of the pauper. It set forth, as the ground, a prior order of removal to the appellant parish, unappealed against, which, it alleged, had been suspended; and there was no statement contained in it shewing that it had ever been served. The examination was, therefore, bad; and the Sessions, being of that opinion, decided that they would quash the order, with a special entry that it was quashed not on the merits. Considerable discussion then ensued, and an offer was made by the appellants to go into the case; but the respondents objected, that the appellants must abide by the decision of the Court already given. The Sessions refused to hear it; and thereupon an entry was made, that the appeal was quashed not on the merits. At first, I was inclined to think that the Sessions were right in doing this, and that a decision upon this objection was not a quashing on the merits. I am, however, now satisfied that my original impression was wrong. The cases of The Queen v. the Inhabitants of Evenwood and Barony, and The Queen v. the Inhabitants of Charlbury (9), have rightly decided, that where the examination omits some material facts, it is the same thing as if, on the hearing of the appeal, the parties had not brought evidence of such facts before the Court. I think the term "merits" is an unfortunate expression, and extremely likely to mislead. It is quite clear, therefore, that the Sessions were wrong in their decision; and then the question arises, whether this Court can direct the record to be amended. In The Queen v. the Justices of the West Riding of Yorkshire, (8) 12 Law J. Rep. (N.s.) M.C. 148. (9) Ante, M.C. 19.

this Court certainly directed an entry of an appeal on the record of the Court of Quarter Sessions to be erased; and that case, it is contended, is an authority for this application; but there, the Court had originally possessed no power to make any entry at all. The Sessions had entered an appeal, in that case, on the motion of the respondents, and in the absence of the appellants, which they had no authority to do. They consequently had no jurisdiction, for the case was not properly before them. In this case, however, the appeal was properly entered, and the Court had jurisdiction over it, and they have decided it. How, then, can we compel them to re-hear a case on which they have decided? It may be true, that their decision is erroneous; but we cannot interfere with that. The law in such a case has provided no means of redress; for this court is not a court of error, to which appeals may be made from the Sessions. Whether upon any subsequent occasion the Magistrates will permit the appellants to contradict their record, by evidence that the former decision was, in fact, a decision on the merits, is a question which remains to be settled. The rule, however, now applied for must be refused.

BAIL COURT. 1843. Nov. 22.

Rule refused.

THE QUEEN v. THE JUSTICES
OF THE WEST RIDING OF

YORKSHIRE, in the matter
of an appeal between THE

INHABITANTS OF HARNLEY
AND THE INHABITANTS OF
ROTHWELL.

Appeal, Notice of Poor Statute 22 Geo. 3. c. 28.

Where a parish is incorporated under 22 Geo. 3. c. 28, the notice of appeal must be signed by the guardian, and he must describe himself therein as such. It is insufficient that he should describe himself as an overseer.

The appellant parish had been incorporated under Gilbert's Act, 22 Geo. 3. c. 28, and the notice of appeal in this instance had been signed by the guardian. He was not, however, so described, but the notice purported to be signed by the churchwardens and overseers, and was actually signed by

them also. Upon the trial of the appeal at the Sessions, it was objected that the guardian alone ought to have signed the notice, and that he should have described himself as guardian. This objection was successful, and the appeal was thereupon dismissed.

R. Hall now moved for a rule nisi for a mandamus to the Justices to enter continuances and hear the appeal.-The signatures of the churchwardens and overseers were superfluous, and did not vitiate the notice; it is the same as if an inhabitant, as well as the churchwardens and overseers, in an ordinary case, had signed. It is usual to procure their signatures, in order to obviate any question as to the validity of the appointment of the guardian, but if he be regularly appointed, their names are mere surplusage. 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 to cases in which notices are to be given to, and not by the overseers, and for other purposes the guardian is declared only to be an overseer. The exclusive powers, too, of the guardian are confined to those matters which relate to the care and management of the poor, and there is an obvious distinction between them and the removal of paupers, or appeals against removals. The act also contemplated that notices of appeal would still be served on the overseers as the proper parties.

[PATTESON, J.-Upon the appointment of a guardian, the overseers cease to have any power. They can then do nothing. The direction to the overseers to hand over notices, affords no argument; it only applies to cases where ignorant people might deliver such matters to them.]

Then with regard to the other objection that the guardian was not so described, this was unnecessary, for the parties could ascertain what his authority was; and, at all events, he was described as an overseer, which character as guardian he is expressly stated to fill. The words are, that "he shall, to all intents and purposes, except with regard to the making and collecting of rates, be an overseer of the poor." The notice, therefore, sufficiently discloses his authority, and the capacity in which he signed it. The practice too has always been to include him under the general description of the heading, "We, the undersigned churchwardens and

overseers," at the commencement of the notice, and not to add any further description. The validity of such a notice, under these circumstances, is of considerable importance.

PATTESON, J.-It seems to me perfectly clear, that as soon as a guardian is appointed, the whole of the powers of the parish officers as to these matters become vested in him. This is in his capacity of guardian, and quà overseer he has no authority. A notice of appeal ought, therefore, to be signed by him in his character of guardian; and if he omits to sign it as such, it is a blunder. The Sessions, I think, were quite right, and there will, therefore, be no rule.

Rule refused.

1843. Nov. 23. Indictment - Amendment-Venue-Cer

THE QUEEN v. LORD ASHBUR-
TON AND OTHERS.

tiorari.

After an indictment has been preferred at the Central Criminal Court, and removed by certiorari into this court, and set down for trial at the sittings, having the venue such as is prescribed by 4 & 5 Will. 4. c. 36. s. 3, and no other, the Court will, by consent, order an amendment to be made in the venue, both in the margin and body of such indictment, in order to admit of its being tried by a London or Middlesex jury.

Erle had, in the present term, obtained a rule calling on the defendants to shew cause why a procedendo should not issue in this case, and the indictment be sent back to the Central Criminal Court, or why the indictment should not be amended by inserting a proper venue. It appeared that this was an indictment for a conspiracy which had been preferred at the Central Criminal Court in February 1842. The venue in the margin was Central Criminal Court, to wit," and the material facts were alleged to have taken place within the jurisdiction of the said court, according to the provisions of 4 & 5 Will. 4. c. 36. s. 3. in that respect. The indictment had been removed by certiorari, and notice of trial had been given for the sittings after Easter term, 1842, and made a remanet at those sittings, and had

66

ourselves well in every respect as good servants. Witness our hands, the 10th day of January 1815." This writing was signed by none of the masters, but was always left in their custody. On the opposite side of the book was a statement of the prices to be paid for the making of the plates and dishes at per dozen. It was objected, on the part of the respondents, that the above writing was not a valid agreement, because it was not stamped, and not signed by the masters, but the objection was overruled, and the writing was read. On the part of the respondents, evidence was offered to shew that an universal custom prevailed amongst china-manufacturers to allow holidays at certain fixed times of the year to the platers and dishers, and that, at these times, the latter could, notwithstanding the above writing in the book, absent themselves from their work without their masters' permission. This evidence was objected to as inadmissible, and was rejected. The pauper was called by the appellants, and proved that he was hired by and served Messrs. Bourne & Co. for nearly two years, from the 11th of November 1815, as a plater; that during that period he had his Sundays to himself, doing no work on those days; that he absented himself from his work at Easter for two or three days, and at the wakes, and in August; and that, after these holidays, he returned to his work. The pauper also proved that he always had work of his masters' that he might have done on the play-days. On the part of the respondents, the following question was asked the pauper :- "At the time of the hiring or signing the book, was anything said as to the holidays or Sundays that you were to have to yourself?" This question was objected to, as being a contradiction of the terms of the writing in the book; also, the following question:-"Is it the custom of persons employed in the trade of dish and plate makers, under such a contract as this, to have certain holidays in the course of the year, and the Sundays, to themselves?" This question was objected to, on the ground that evidence of the custom of the trade was inadmissible. The objections to both the questions were allowed by the Court. The questions for the opinion of the Court were― First, whether the writing in the book was an

agreement which ought to have been received by the Court? Secondly, whether, under the circumstances stated, evidence was admissible to shew an universally prevailing custom among china-manufacturers to allow platers and dishers holidays at certain fixed times of the year? Thirdly, whether the questions above stated, or any of them, were admissible? If the Court were of opinion that the writing was an agreement that ought to have been received, and that the evidence of the custom was inadmissible, and that the questions were improper, then the order of Sessions to be confirmed; but if the Court should be of opinion that the written evidence ought not to have been received, or that evidence of the custom was admissible, or that either of the questions was proper, then the Court of Quarter Sessions were to re-hear the appeal.

Godson and Whitmore, in support of the order of Sessions.-(The objection as to the stamp was abandoned by the respondents.) Then, as to the first question, it was not necessary that the writing should have the signatures of the masters The King v. Houghton-le-Spring (1). Here, there has been actual service under it, and the question of mutuality, therefore, does not arise. As to the second point, if it was meant, by the evidence, to vary the effect of the contract, it would be inadmissible.

.

[COLERIDGE, J.-Could you not shew, in answer to evidence of absence by the servant, that leave was given by the master? and, in the same way, could not a custom, for the servant to absent himself at particular days, be shewn ?]

Absence by custom would have been immaterial, and would not prevent the settlement being acquired-The King v. Horwick (2), The King v. St. Agnes (3), The King v. Birmingham (4); but anything said at the time of the agreement with reference to the custom would be inadmissible.

Lee and Yardley, contrà.-The questions were put for the purpose of explanation, and were not inconsistent with the written agreement. That agreement did not exclude the

(1) 2 B. & Ald. 375. (2) 10 East, 489. (3) Burr. S.C. 671. (4) 1 Nolan's P.L. 378.

custom sought to be proved-Holding v. Pigott (5), Hutton v. Warren (6). The object, no doubt, was to get at the fact, that this, in truth, was an exceptive hiring-The Queen v. Threkingham (7).

LORD DENMAN, C. J.-I think that, if the evidence of the custom had been admitted, the Sessions would not have thought the contract was to except part of the time, and I think the Sessions ought to have admitted it. It must be taken that both parties knew what the custom was. This is not inconsistent with the contract. The trade, indeed, might not be constantly going on for a whole year. The case must, therefore, go back to the Sessions, though I think this is an improper practice. The Sessions should decide provisionally both ways, leaving the event to depend on the judgment of the Court (8).

A warrant of commitment, on a conviction, must recite a conviction for an offence over which the committing Magistrate had jurisdiction; and the Court will not presume a conviction to be good, which, according to the recital, shews a want of jurisdiction.

A commitment, under 7 & 8 Geo. 4. c. 29. s. 26, reciting a conviction, that the defendant "did unlawfully kill and carry away one fallow deer, the property of Her Majesty Queen Victoria, against the form of the statute,"-Held, bad, for omitting to state that the deer was in the uninclosed part of some forest, chace, or purlieu.

The defendant, with one Charles Lilley, had been committed, on the 14th of September 1843, to the house of correction at Winchester, under the warrant of a Magistrate, which recited, that they were convicted, on the 7th of September inst., at the parish of Milton, in the said county of Southampton, for that they "did unlawfully kill and carry away one fallow deer belonging to Her Majesty Queen Victoria, against the form of the statute in such case made and provided," and adjudged them to pay the sum of 50l. each, and in default of payment to be imprisoned for four calendar months, and commanded the keeper of the house of correction to imprison them during that period, unless the penalty was sooner paid.

King being now brought up under a writ of habeas corpus, to which the keeper of the house of correction made the above return,

Barstow moved to discharge him out of custody. The commitment is invalid, inasmuch as it recites a conviction, which discloses no offence over which the Magistrate had jurisdiction. The statute 7 & 8 Geo. 4. c. 29. s. 26. provides, that "if any person shall unlawfully and wilfully course, hunt, snare, or carry away, or kill or wound, or attempt to kill or wound, any deer kept or