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Upon an appeal against an order of two in the examination of J. Williams, and Justices for the borough of Penryn, in the therein stated to have been produced before county of Cornwall, for the removal of the removing Justices, was sent, with the Joseph Symons, his wife and three children, examinations, to the appellants: who therefrom the said borough to the parish of upon insisted that the respondents had no Mylor, in the same county, the Sessions right to enter into their case at all. The confirmed the order, subject to the opinion Court of Quarter Sessions reserved the of this Court upon the following

point, heard the appeal, and confirmed the

order, subject to the opinion of the Court CASE.

of Queen's Bench thereon. Should the The pauper, Joseph Symons, in his ex- Court be of opinion that the objection was amination, stated a settlement gained by fatal, then the order of Quarter Sessions to hiring and service, and residence with W. be quashed, otherwise confirmed. Pellowe, at Carvinich, in the said parish of Pashley now appeared in support of the Mylor, and then proceeded :-" In the order of Sessions. month of September 1832, I was removed, [LORD DENMAN, C.J.-Why may not the with my wife and children, by an order of respondents go into the settlement by hiring Justices, from the said borough of Penryn and service ?] to the said parish of Mylor, from which M. Smith. If copies of all the documents there was not any appeal.” Then followed produced before the removing Magistrates the examination of J. Williams, clerk to are not sent, the whole examination fails, the Justices of the said borough, who and the respondents cannot, on the appeal, stated, “ I have been for many years and go into any part of their case- -The Queen still am the clerk to the Justices of the v. Outwell (1), The Queen v. East Rainton said borough of Penryn; that I as such (2), The Queen v. Brixham (3). In The clerk as aforesaid took the examination of Queen v. Wellington (4), this principle was the said Joseph Symons on the 10th of Sep- admitted to be applicable to a prior order tember 1832, before J. A, Esq., the then of removal. mayor, and E. H, clerk, then the deputy Pashley.— The Queen v. East Rainton is recorder of the said borough, two of his then very different from this case. There the Majesty's Justices of the Peace, having document not sent was a pit bond, upon the jurisdiction in the said borough, touching special terms of which the settlement dethe place of the last legal settlement of the pended; it was, therefore, the very evidence said Joseph Symons, and that I, as such of the settlement; besides, there no other clerk as aforesaid, made out an order for the ground of removal was set up. It is not disremoval of the said Joseph Symons and his puted that all the examinations relating to wife and family, from the said borough of the settlement relied on must be sent, but Penryn, to the parish of Mylor, in the said as the respondents may rely on one part of county of Cornwall, which order was signed the examinations exclusively— The Queen by the said J. A. and E, H, as such mayor v. Latchford (5), the only effect of omitting and deputy recorder as aforesaid, in my to send this document will be to preclude the presence, and which said order I now pro- respondents from proving the acknowledgduce." Edward Tregasking, in his examin- ment under the prior order; as to that part ation stated, “that in the year 1832 I was

of the examination it makes the evidence inthe assistant overseer of the said borough, admissible, and it is no objection that some and had to perform all the duties appertain- part of the evidence is illegal, if there be ing to the office of overseer,” [this examin- other legal evidence sufficient to maintain ation then stated a removal of the paupers the removal - The Queen v. Ecclesall Bierunder the said order, and their delivery, with a duplicate of the order, to the over

(1) 9 Ad. & El. 836 ; s.c. 8 Law J. Rep. (N.s.) M.C. 27.

(2) 14 Law J. Rep. (n.s.) M.C. 135. The following (amongst others) was (3) 8 Ad. & El. 375 ; s. c. 7 Law J. Rep. (N.s.) ground of appeal :—That no copy or extract

M.C. 78. of the alleged order of removal of the said

(4) 2 New Sess. Cas. 176.

(5) 6 Q.B. Rep. 567; s. c. 14 Law J. Rep. (n.s.) Joseph Symons and his family, mentioned M.C. 20.

seers of Mylor].

a

low (6), The Queen v. Tetbury (7). Evi- LORD Denman, C.J.-That is, I think, dence produced by the parish, against which the answer to it. I must own I am exthe order is made, need not be sent— The tremely sorry to come to the conclusion Queen v. Holne (8).

which I must arrive at here ; for we cannot (COLERIDGE, J.-Your argument must help seeing that there is a good settlement amount to this, that if five or six distinct stated in the examinations, and well heads of settlement are set up in the exami- proved. But we find the words of the act nations, and the respondents decide upon of parliament construed in a way which is relying only on one of those heads, it will quite sufficient to shew that the respondents do for them to send nothing but the exami- could not be admitted to prove their case. nations relating to that settlement.]

That construction has received the assent of An order of removal is a well-known this Court, and of all parties engaged in document, and a duplicate having been de- the administration of the poor law. If we livered, at the time of the removal, to the were to interfere with that view of the appellants, they have all the information act, we should be raising doubts where they can possibly require; the respondents none existed before, and only increasing have no means of compelling the clerk to small distinctions. It appears to me that the Justices who produced the order to give the statute has been construed according to a copy

of it. But another objection is, that its certain and undoubted meaning; that it does not appear that there has been any when the appeal is to be made against removal under the present order, and, there- the removal, or against the service of the fore, there is still time to deliver this docu- order, the appellants shall have all the doment.

cuments upon which the order was founded [COLERIDGE, J.-The act says, no person sent to them. This requisite must be for the “shall be removed or removable" until purpose of enabling the appellant parish to twenty-one days after the examinations are decide whether it will appeal or not; and sent. The object of sending the documents if we were to allow overseers to consider is to enable the other side to decide whether whether they would send some particular they will appeal or not; and in case notice documents or not, we should be letting in of appeal is given within twenty-one days, great doubt and inconvenience. Mr. Pashno removal is to take place until after the ley argues that an order of removal is a wellappeal is decided. If then no examinations known kind of document, and that, thereneed be sent until actual remo

noval, the ob- fore, there is not the same necessity for ject of the act will be frustrated.]

sending it as exists in the case of other more The party may waive the right of appeal unusual documents; but I do not see why which accrues on service of the order, and an order of removal might not be misdefall back on the former practice, and appeal scribed in some essential particular, if only against the actual removal. The ground of referred to, and not sent. I do not mean appeal is too large : it is, that no copy or to say we are to suspect anything of the extract of the prior order has been sent; but sort here; but as the thing may occur, and the examinations sent do contain an extract. it was to prevent such occurrences that the Montague Smith, contrà.

act was passed, I think the Sessions have [LORD DENMAN, C.J.- The only point been unfortunately mistaken in giving effect which at all sways with us is the last, that to the examinations. there is an extract of the order sent to you, COLERIDGE, J.-I am entirely of the same so that the words of your ground of appeal opinion. I may lay out of consideration are answered. )

the circumstances of this case, for it is far The objection is twofold, that no copy more important to give a proper conand that no extract is sent; therefore clear struction to the statute than to decide any reference is made to the want of the copy. individual case. The objection is, that no (He was then stopped.)

copy of a document has been sent, together

with the copy of the order and notice of (6) 11 Ad. & El. 607 ; s.c. 10 Law J. Rep. (n.s.) chargeability. Looking at the examinations, M.C. 90. (7) Ibid. 615, n.

it appears that the parties intended to rely (8) 15 Law J. Rep. (N.s.) M.C. 125.

on two distinct grounds of removal; and as

}

THE QUEEN 0. SPELLER.

a proof of one of these grounds, the docu- moved or removable," help us out of the ment in question was produced before the

difficulty. removing parties, and was material to sup- WiGHTMAN, J.-I quite concur.

The port that ground of removal. If we are to only point about which I hesitated at all give any effect at all to the act, we must was the last referred to by my Brother Colecome to the decision that this document ridge. ought to have been sent to enable the re- ERLE, J.-I

agree in the decision of the spondents to go into their case. Mr. rest of the Court. As to this particular Pashley has said, there was another distinct document, there has been an express decihead of settlement set out in the examina- sion of the Court that it must be sent. I tion, which would have been sufficient to also concur very much in the regret felt by authorize the removal, and that the Sessions the other members of the Court, for in this could only have prevented the respondents case much substance is clearly sacrificed to from going into the ground of removal to a point of form. which the document in question applied.

Order of Sessions quashed. Looking to the statute, that is not what was intended. If the respondents set out several heads of settlement, on one only of which they afterwards determine to rely, and are at liberty to send only the evidence relating

[IN THE EXCHEQUER OF PLEAS (1).] to that one head of settlement, (for that is 1847. what the respondents'argument must amount Nov. 25. to,) we should have to decide whether the

Conviction Maltster - Excise Acts, evidence kept back was or was not material

7 8. 8 Geo. 4. c. 52. s. 33, and i Vict. to the settlement relied upon. Now the statute

c. 49. s. 5.— Increase, Mode of ascertainsays no such thing as this, but enacts that the pauper shall not be removed or removable

ingDiscretion of Exciseman. until twenty-one days after the order or copy The 7 & 8 Geo. 4. c. 52. s. 33. imposes thereof, together with a copy of the exam- a penalty on any maltster treading or forcing ination on which such order was made—not together corn in a couch-frame. The 1 Vict. merely that part of the examination on C. 49. s. 5. empowers officers of Excise to which the parish shall afterwards rely-shall throw the corn out of the couch-frame, and have been sent to the other parish. But return it; and if any increase be found in then it is argued, that although the statute the gauge of the corn after its being returned requires this, it is no ground of appeal until and laid level in the couch-frame ( in any after the actual removal of the pauper. I greater proportion, foc.), the increase so was at first much struck with the argument, found is to be deemed conclusive evidence of but a sufficient answer to it is, that if we such corn having been trodden and forced listened to such a construction, we should together; and the maltster is to be convicted disturb the practice of the Courts of Quarter in the said penalty. Upon an information, Sessions all over the kingdom. The statute and conviction, before Justices, for the above requires that the order shall be sent accom- penalty, it appeared that the uniform mode panied by a copy of the examination. The recently adopted by the Excise of returning object is to give the parish an opportunity the corn was by piling it up in the centre of seeing whether it will appeal or not ; of the couch, in the form of a cone, and then whereas if, as contended for, the order goes levelling it, instead of by casting the corn alone, and notice of appeal be given within equally all over the floor of the couch-frame twenty-one days, and you need not send as formerly usual :—Held, by the Court of copies of any documents or examinations Exchequer, upon the construction of the until after the appeal is decided, that re- above statutes, that the officer of Excise had duces it to an absurdity, and will not some discretion--and it might be, that he effect the desired object. However, if the had an absolute discretion-as to the mode of words of the section bore out this construc- returning the grain, and that the above mode tion, we should have been bound to give it; but it seems to me, that the words “

(1) Reported by F. 7'. Streeten, Esq. NEW SERIES, XVII.-MAG. Cas.

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not appearing to be improper, an increase so in the couch-frame, after such grain has found in the gauge of the corn (beyond the been thrown out of and returned into such allowed increase ) was conclusive evidence of couch-frame, as directed by 1 Vict. c. 49. the offence in the 7 & 8 Geo. 4. c. 52. s. 33, s. 5, do return such grain, or cause it to be and that the conviction was right.

returned into such couch-frame by placing

the whole of such grain in the form of a SPECIAL CASE (2).

cone in such couch-frame as described in This was an appeal from the judgment of the conviction, instead of by casting the three Justices of the Peace for the county grain equally all over the floor of the couchof Hertford, upon an information under the frame, as is also described in the conviction, stat. 7 & 8 Geo. 4. c. 52. s. 33, exhibited and do thereby obtain more than the allowed by order of the Commissioners of Excise by increase upon gauging the grain after its one George Thorne, an officer of Excise, return to the couch-frame, the Justices upon against Charles Speller, a licensed maltster, information, as in the present case, are at Hockerill, in the county of Hertford, bound to receive proof of such excessive for that, on the 31st day of March 1846, a increase obtained by such means as concluquantity of corn and grain then and there sive evidence of such grain having been making into malt was found in a certain trodden or forced together in such couchcouch-frame of him, the said C. Speller, so frame before it was so thrown out as aforehard, close, and compact, as it could not have said, within the meaning of the said acts of been unless the same had by some means parliament, and to convict accordingly. If or other been forced together therein, con- the Court of Exchequer should be of opinion trary, &c., whereby, &c. The information, that the Justices were, under such circumwhich is set out at length in the record of stances, bound to receive such proof as such conviction, a copy of which is annexed, conclusive evidence as aforesaid, then the was heard on the 13th day of August 1846, said judgment of the said Court of Quarter before three of her Majesty's Justices of Sessions was to be confirmed: if otherwise, the Peace for the said county, when they the said judgment and conviction were to be convicted the said C. Speller, and adjudged quashed. Either party was to be at liberty him to have forfeited the sum of 1001. for to refer to the copy of the record of the said the offence aforesaid, which sum they miti- conviction thereunto annexed, and the evigated to 251. Whereupon the said C. dence therein set forth, all which were to be Speller duly gave the necessary notices of taken as part of the case, and the Court to his intention to appeal against the convic- draw such inferences of fact as it might think tion aforesaid, to the then next General fit, and no objection in point of form was to Quarter Sessions of the Peace for the be taken by either party. county aforesaid, and duly made the neces- It is unnecessary to notice the conviction sary deposit of the amount of the said miti. further than to state, that upon the evidence gated penalty; and the said Justices there- of the Excise officers, it appeared that the upon returned to the said Court of General mode of returning the grain into the couchQuarter Sessions the record of the said con- frame by placing it in cones, and levelling it viction; and the said appeal was duly heard afterwards, had been uniformly adopted for and prosecuted by and before the said the last two years, in accordance with the Court of Quarter Sessions, and at such directions of the Excise commissioners. hearing the said Court of Quarter Sessions, That the Excise officers did not know of any at the instance of both parties, confirmed more effectual mode of keeping the grain as the said conviction, subject to the opinion wide apart as possible; and that they believed of the Court of Exchequer on a question it to be the fairest mode. That throwing the to be agreed upon by the counsel on both grain hard into a couch with a shovel would sides, which is as follows :- Whether if an compress the grain to the extent of nine or officer of Excise, in order to ascertain the ten per cent. beyond the mode adopted. The amount of increase in the gauge of the grain defendant's evidence shewed that the pre

vious mode of returning the grain into the (2) Under the authority of the 7 & 8 Geo. 4.

couch was by throwing the grain all over it. c. 53. sect. 84.

The sections of the acts of parliament on

66

which this case depends are given in a

becomes a couch, and in that stage of openote (3).

ration it is again twice gauged by the officer, Sir John Jerois ( Attorney General), (Ry- the first time as soon as possible after the land and Wordsworth with him), for the corn is thrown out of the cistern, and the Crown.—The duty on malt may be taken at second time as nearly as possible before the various stages. The maltster is obliged by expiration of twenty-six hours after. The law to give the officers of Excise twenty-four grain will swell both in the cistern and in hours

' previous notice of his intention to wet the couch, but it cannot fairly increase the corn and to keep it covered with water in beyond a certain amount, and any increase the cistern forty hours. Gauges are taken beyond that amount is evidence of fraud. of the corn in the cistern. The corn is then The duty is charged for so many bushels of thrown out of the cistern upon a floor, and malt as the officer takes in either of the

stages of operation, after making certain (3) The 7 & 8 Geo. 4. c. 52. s. 33. imposes a allowances ; upon every gauge taken in the penalty on any maltster treading or forcing together couch-frame an allowance of five bushels corn or grain in a couch-frame. The i Vict. c. 49. s. 5. enacts, " That when any

in every hundred is made. A test has officer of Excise shall suspect that the corn or grain

existed for ascertaining whether malt has making into malt in any cistern or couch-frame has been unduly compressed, since the 41 been trodden or forced together, or that the corn or Geo. 3. c. 91, 'An act for the better regrain so making into malt therein is so hard, close, and compact as it could not have been unless the

gulation and collection of duties of Excise,' same had been by some means or other trodden or

by the first section of which the officer was forced together in such cistern or couch-frame, it empowered to throw the corn from the shall be lawful for such officer to direct the maltster couch and lay it level and gauge it in the or maker of malt, or his workmen and servants, to throw all such corn or grain from and out of the

malthouse, on the floor, without returning cistern or couch-frame, and for such officer, and

it again into the couch-frame; then came any person or persons in his aid and assistance, the 48 Geo. 3. c. 74, which empowered the which aid and assistance the maltster or his work- officer to return or throw" the corn back men and servants shall also give if required, to

into the couch after it had been turned out, return all such corn or grain into the cistern or couch from which the same shall have been thrown,

and then to gauge it. Then came the 7 & 8 and to lay the whole of such corn or grain level Geo. 4. c. 52, on the 33rd section of which again in such cistern or couch; and if any increase this information is founded, and by section shall be found in the gauge or quantity of such corn 34. of which the officer was empowered or grain, after being returned into and laid level again in the cistern or couch-frame, over and above

either to throw the corn out of the couch the former gauge taken before the same was thrown and then return it again and re-gauge it, or out, in any greater proportions than those of five to turn over the corn in the couch and then bushels in every 100 bushels previously to such corn or grain having been emptied eight hours from

re-gauge it, or to turn out par

of the corn the cistern, or six bushels in every 100 bushels if

and turn over the rest, and then return the such corn or grain shall have been emptied from part thrown out and re-gauge the whole. the cistern eight hours, and not emptied sixteen Then came the 1 Vict. c. 49, the 3rd sechours, or seveu bushels in every 100 bushels if such

tion of which repeals the 34th section of corn or grain shall have been emptied from the cistern sixteen hours or upwards, the increase so

the 7 & 8 Geo. 4. c. 52, and which by respectively found as aforesaid shall be deemed section 5. reverts to the mode adopted by conclusive evidence of such corn or grain having the 48 Geo. 3, viz., of throwing the whole been trodden or forced together, and the Court or out of the couch and returning the same, Justices before whom such evidence shall be given

and then levelling and re-gauging it. Now shall thereupon convict the maltster or maker of malt in the penalty imposed by the said recited

the 7 & 8 Geo. 4. c. 52. s. 33. imposes act, 7 & 8 Geo. 4. c. 52; and every maltster or a penalty on any maltster treading or maker of malt who, or whose servants or workmen, forcing together corn in the couch-frame, shall, when directed by any officer of Excise, re

and the i Vict. c. 49. s. 5. empowers the fuse to throw out any corn or grain making into malt from any cistern or couch, or to aid or assist,

officer to require the grain to be thrown out if required so to do, in returning the same into the of the couch-frame and to return it into the cistern or couch from which the same shall have couch-frame, and then, after being returned been thrown, shall forfeit 1001.: Provided always, that it shall be lawful to prove by any other or

and laid level, if any increase is found in different evidence that such corn or grain had been

the gauge or quantity over and above the trodden or forced together."

former gauge, after allowing a certain

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