Upon an appeal against an order of two Justices for the borough of Penryn, in the county of Cornwall, for the removal of Joseph Symons, his wife and three children, from the said borough to the parish of Mylor, in the same county, the Sessions confirmed the order, subject to the opinion of this Court upon the following CASE. The pauper, Joseph Symons, in his examination, stated a settlement gained by hiring and service, and residence with W. Pellowe, at Carvinich, in the said parish of Mylor, and then proceeded :-"In the month of September 1832, I was removed, with my wife and children, by an order of Justices, from the said borough of Penryn to the said parish of Mylor, from which there was not any appeal." Then followed the examination of J. Williams, clerk to the Justices of the said borough, who stated, "I have been for many years and still am the clerk to the Justices of the said borough of Penryn; that I as such clerk as aforesaid took the examination of the said Joseph Symons on the 10th of September 1832, before J. A, Esq., the then mayor, and E. H, clerk, then the deputy recorder of the said borough, two of his then Majesty's Justices of the Peace, having jurisdiction in the said borough, touching the place of the last legal settlement of the said Joseph Symons, and that I, as such clerk as aforesaid, made out an order for the removal of the said Joseph Symons and his wife and family, from the said borough of Penryn, to the parish of Mylor, in the said county of Cornwall, which order was signed by the said J. A. and E. H, as such mayor and deputy recorder as aforesaid, in my presence, and which said order I now produce." Edward Tregasking, in his examination stated, "that in the year 1832 I was the assistant overseer of the said borough, and had to perform all the duties appertain ing to the office of overseer," [this examination then stated a removal of the paupers under the said order, and their delivery, with a duplicate of the order, to the overseers of Mylor]. The following (amongst others) was a ground of appeal:-That no copy or extract of the alleged order of removal of the said Joseph Symons and his family, mentioned in the examination of J. Williams, and therein stated to have been produced before the removing Justices, was sent, with the examinations, to the appellants: who thereupon insisted that the respondents had no right to enter into their case at all. The Court of Quarter Sessions reserved the point, heard the appeal, and confirmed the order, subject to the opinion of the Court of Queen's Bench thereon. Should the Court be of opinion that the objection was fatal, then the order of Quarter Sessions to be quashed, otherwise confirmed. Pashley now appeared in support of the order of Sessions. [LORD DENMAN, C.J.-Why may not the respondents go into the settlement by hiring and service?] M. Smith. If copies of all the documents produced before the removing Magistrates are not sent, the whole examination fails, and the respondents cannot, on the appeal, go into any part of their case- -The Queen v. Outwell (1), The Queen v. East Rainton (2), The Queen v. Brixham (3). In The Queen v. Wellington (4), this principle was admitted to be applicable to a prior order of removal. Pashley.-The Queen v. East Rainton is very different from this case. There the document not sent was a pit bond, upon the special terms of which the settlement depended; it was, therefore, the very evidence of the settlement; besides, there no other ground of removal was set up. It is not disputed that all the examinations relating to the settlement relied on must be sent, but as the respondents may rely on one part of the examinations exclusively-The Queen v. Latchford (5), the only effect of omitting to send this document will be to preclude the respondents from proving the acknowledgment under the prior order; as to that part of the examination it makes the evidence in admissible, and it is no objection that some part of the evidence is illegal, if there be other legal evidence sufficient to maintain the removal-The Queen v. Ecclesall Bier (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. (3) 8 Ad. & El. 375; s. c. 7 Law J. Rep. (N.S.) M.C. 78. (4) 2 New Sess. Cas. 176. (5) 6 Q.B. Rep. 567; s. c. 14 Law J. Rep. (N.s.) M.C. 20. low (6), The Queen v. Tetbury (7). Evidence produced by the parish, against which the order is made, need not be sent-The Queen v. Holne (8). [COLERIDGE, J.-Your argument must amount to this, that if five or six distinct heads of settlement are set up in the examinations, and the respondents decide upon relying only on one of those heads, it will do for them to send nothing but the examinations relating to that settlement.] An order of removal is a well-known document, and a duplicate having been delivered, at the time of the removal, to the appellants, they have all the information they can possibly require; the respondents have no means of compelling the clerk to the Justices who produced the order to give a copy of it. But another objection is, that it does not appear that there has been any removal under the present order, and, therefore, there is still time to deliver this document. [COLERIDGE, J.-The act says, no person "shall be removed or removable" until twenty-one days after the examinations are sent. The object of sending the documents is to enable the other side to decide whether they will appeal or not; and in case notice of appeal is given within twenty-one days, no removal is to take place until after the appeal is decided. If then no examinations need be sent until actual removal, the object of the act will be frustrated.] The party may waive the right of appeal which accrues on service of the order, and fall back on the former practice, and appeal against the actual removal. The ground of appeal is too large: it is, that no copy or extract of the prior order has been sent; but the examinations sent do contain an extract. Montague Smith, contrà. [LORD DENMAN, C.J.-The only point which at all sways with us is the last, that there is an extract of the order sent to you, so that the words of your ground of appeal are answered. ] The objection is twofold, that no copy and that no extract is sent; therefore clear reference is made to the want of the copy. (He was then stopped.) LORD DENMAN, C.J.-That is, I think, the answer to it. I must own I am extremely sorry to come to the conclusion which I must arrive at here; for we cannot help seeing that there is a good settlement stated in the examinations, and well proved. But we find the words of the act of parliament construed in a way which is quite sufficient to shew that the respondents could not be admitted to prove their case. That construction has received the assent of this Court, and of all parties engaged in the administration of the poor law. If we were to interfere with that view of the act, we should be raising doubts where none existed before, and only increasing small distinctions. It appears to me that the statute has been construed according to its certain and undoubted meaning; that when the appeal is to be made against the removal, or against the service of the order, the appellants shall have all the documents upon which the order was founded sent to them. This requisite must be for the purpose of enabling the appellant parish to decide whether it will appeal or not; and if we were to allow overseers to consider whether they would send some particular documents or not, we should be letting in great doubt and inconvenience. Mr. Pashley argues that an order of removal is a wellknown kind of document, and that, therefore, there is not the same necessity for sending it as exists in the case of other more unusual documents; but I do not see why an order of removal might not be misdescribed in some essential particular, if only referred to, and not sent. I do not mean to say we are to suspect anything of the sort here; but as the thing may occur, and it was to prevent such occurrences that the act was passed, I think the Sessions have been unfortunately mistaken in giving effect to the examinations. COLERIDGE, J.-I am entirely of the same opinion. I may lay out of consideration the circumstances of this case, for it is far more important to give a proper construction to the statute than to decide any individual case. The objection is, that no 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. (8) 15 Law J. Rep. (N.s.) M.C. 125. it appears that the parties intended to rely on two distinct grounds of removal; and as a proof of one of these grounds, the document in question was produced before the removing parties, and was material to support that ground of removal. If we are to give any effect at all to the act, we must come to the decision that this document ought to have been sent to enable the respondents to go into their case. Mr. Pashley has said, there was another distinct head of settlement set out in the examination, which would have been sufficient to authorize the removal, and that the Sessions could only have prevented the respondents from going into the ground of removal to which the document in question applied. 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 to that one head of settlement, (for that is what the respondents' argument must amount to,) we should have to decide whether the evidence kept back was or was not material to the settlement relied upon. Now the statute says no such thing as this, but enacts that the pauper shall not be removed or removable until twenty-one days after the order or copy thereof, together with a copy of the examination on which such order was made-not merely that part of the examination on which the parish shall afterwards rely-shall have been sent to the other parish. But then it is argued, that although the statute requires this, it is no ground of appeal until after the actual removal of the pauper. was at first much struck with the argument, but a sufficient answer to it is, that if we listened to such a construction, we should disturb the practice of the Courts of Quarter Sessions all over the kingdom. The statute requires that the order shall be sent accompanied by a copy of the examination. The object is to give the parish an opportunity of seeing whether it will appeal or not; whereas if, as contended for, the order goes alone, and notice of appeal be given within twenty-one days, and you need not send copies of any documents or examinations until after the appeal is decided, that reduces it to an absurdity, and will not effect the desired object. However, if the words of the section bore out this construction, we should have been bound to give it; but it seems to me, that the words "reNEW SERIES, XVII.-MAG. CAS. moved or removable," help us out of the difficulty. The WIGHTMAN, J.-I quite concur. only point about which I hesitated at all was the last referred to by my Brother Coleridge. ERLE, J.—I agree in the decision of the rest of the Court. As to this particular document, there has been an express decision of the Court that it must be sent. I also concur very much in the regret felt by the other members of the Court, for in this case much substance is clearly sacrificed to a point of form. Order of Sessions quashed. THE QUEEN v. SPELLER. Conviction Maltster Excise Acts, 7 & 8 Geo. 4. c. 52. s. 33, and 1 Vict. c. 49. s. 5.—Increase, Mode of ascertaining-Discretion of Exciseman. The 7 & 8 Geo. 4. c. 52. s. 33. imposes a penalty on any maltster treading or forcing together corn in a couch-frame. The 1 Vict. c. 49. s. 5. empowers officers of Excise to throw the corn out of the couch-frame, and return it; and if any increase be found in the gauge of the corn after its being returned and laid level in the couch-frame (in any greater proportion, &c.), the increase so found is to be deemed conclusive evidence of such corn having been trodden and forced together; and the maltster is to be convicted in the said penalty. Upon an information, and conviction, before Justices, for the above penalty, it appeared that the uniform mode recently adopted by the Excise of returning the corn was by piling it up in the centre of the couch, in the form of a cone, and then levelling it, instead of by casting the corn equally all over the floor of the couch-frame as formerly usual:—Held, by the Court of Exchequer, upon the construction of the above statutes, that the officer of Excise had some discretion—and it might be, that he had an absolute discretion—as to the mode of returning the grain, and that the above mode (1) Reported by F. T. Streeten, Esq. C not appearing to be improper, an increase so found in the gauge of the corn (beyond the allowed increase) was conclusive evidence of the offence in the 7 & 8 Geo. 4. c. 52. s. 33, and that the conviction was right. SPECIAL CASE (2). This was an appeal from the judgment of three Justices of the Peace for the county of Hertford, upon an information under the stat. 7 & 8 Geo. 4. c. 52. s. 33, exhibited by order of the Commissioners of Excise by one George Thorne, an officer of Excise, against Charles Speller, a licensed maltster, at Hockerill, in the county of Hertford, for that, on the 31st day of March 1846, a quantity of corn and grain then and there making into malt was found in a certain couch-frame of him, the said C. Speller, so hard, close, and compact, as it could not have been unless the same had by some means or other been forced together therein, contrary, &c., whereby, &c. The information, which is set out at length in the record of conviction, a copy of which is annexed, was heard on the 13th day of August 1846, before three of her Majesty's Justices of the Peace for the said county, when they convicted the said C. Speller, and adjudged him to have forfeited the sum of 100l. for the offence aforesaid, which sum they mitigated to 251. Whereupon the said C. Speller duly gave the necessary notices of his intention to appeal against the conviction aforesaid, to the then next General Quarter Sessions of the Peace for the county aforesaid, and duly made the necessary deposit of the amount of the said mitigated penalty; and the said Justices thereupon returned to the said Court of General Quarter Sessions the record of the said conviction; and the said appeal was duly heard and prosecuted by and before the said Court of Quarter Sessions, and at such hearing the said Court of Quarter Sessions, at the instance of both parties, confirmed the said conviction, subject to the opinion of the Court of Exchequer on a question to be agreed upon by the counsel on both sides, which is as follows:-Whether if an officer of Excise, in order to ascertain the amount of increase in the gauge of the grain (2) Under the authority of the 7 & 8 Geo. 4. c. 53. sect. 84. in the couch-frame, after such grain has been thrown out of and returned into such couch-frame, as directed by 1 Vict. c. 49. s. 5, do return such grain, or cause it to be returned into such couch-frame by placing the whole of such grain in the form of a cone in such couch-frame as described in the conviction, instead of by casting the grain equally all over the floor of the couchframe, as is also described in the conviction, and do thereby obtain more than the allowed increase upon gauging the grain after its return to the couch-frame, the Justices upon information, as in the present case, are bound to receive proof of such excessive increase obtained by such means as conclusive evidence of such grain having been trodden or forced together in such couchframe before it was so thrown out as aforesaid, within the meaning of the said acts of parliament, and to convict accordingly. If the Court of Exchequer should be of opinion that the Justices were, under such circumstances, bound to receive such proof as such conclusive evidence as aforesaid, then the said judgment of the said Court of Quarter Sessions was to be confirmed: if otherwise, the said judgment and conviction were to be quashed. Either party was to be at liberty to refer to the copy of the record of the said conviction thereunto annexed, and the evidence therein set forth, all which were to be taken as part of the case, and the Court to draw such inferences of fact as it might think fit, and no objection in point of form was to be taken by either party. It is unnecessary to notice the conviction further than to state, that upon the evidence of the Excise officers, it appeared that the mode of returning the grain into the couchframe by placing it in cones, and levelling it afterwards, had been uniformly adopted for the last two years, in accordance with the directions of the Excise commissioners. That the Excise officers did not know of any more effectual mode of keeping the grain as wide apart as possible; and that they believed it to be the fairest mode. That throwing the grain hard into a couch with a shovel would compress the grain to the extent of nine or ten per cent. beyond the mode adopted. The defendant's evidence shewed that the previous mode of returning the grain into the couch was by throwing the grain all over it. The sections of the acts of parliament on which this case depends are given in a note (3). Sir John Jervis (Attorney General), (Ryland and Wordsworth with him), for the Crown. The duty on malt may be taken at various stages. The maltster is obliged by law to give the officers of Excise twenty-four hours' previous notice of his intention to wet the corn and to keep it covered with water in the cistern forty hours. Gauges are taken of the corn in the cistern. The corn is then thrown out of the cistern upon a floor, and (3) The 7 & 8 Geo. 4. c. 52. s. 33. imposes a penalty on any maltster treading or forcing together corn or grain in a couch-frame. The Vict. c. 49. s. 5. enacts, "That when any officer of Excise shall suspect that the corn or grain making into malt in any cistern or couch-frame has been trodden or forced together, or that the corn or grain so making into malt therein is so hard, close, and compact as it could not have been unless the same had been by some means or other trodden or forced together in such cistern or couch-frame, it shall be lawful for such officer to direct the maltster or maker of malt, or his workmen and servants, to throw all such corn or grain from and out of the cistern or couch-frame, and for such officer, and any person or persons in his aid and assistance, which aid and assistance the maltster or his workmen and servants shall also give if required, to return all such corn or grain into the cistern or couch from which the same shall have been thrown, and to lay the whole of such corn or grain level again in such cistern or couch; and if any increase shall be found in the gauge or quantity of such corn or grain, after being returned into and laid level again in the cistern or couch-frame, over and above the former gauge taken before the same was thrown out, in any greater proportions than those of five bushels in every 100 bushels previously to such corn or grain having been emptied eight hours from the cistern, or six bushels in every 100 bushels if such corn or grain shall have been emptied from the cistern eight hours, and not emptied sixteen hours, or seven bushels in every 100 bushels if such corn or grain shall have been emptied from the cistern sixteen hours or upwards, the increase so respectively found as aforesaid shall be deemed conclusive evidence of such corn or grain having been trodden or forced together, and the Court or Justices before whom such evidence shall be given shall thereupon convict the maltster or maker of malt in the penalty imposed by the said recited act, 7 & 8 Geo. 4. c. 52; and every maltster or maker of malt who, or whose servants or workmen, shall, when directed by any officer of Excise, refuse to throw out any corn or grain making into malt from any cistern or couch, or to aid or assist, if required so to do, in returning the same into the cistern or couch from which the same shall have been thrown, shall forfeit 1007. Provided always, that it shall be lawful to prove by any other or different evidence that such corn or grain had been trodden or forced together." becomes a couch, and in that stage of operation it is again twice gauged by the officer, the first time as soon as possible after the corn is thrown out of the cistern, and the second time as nearly as possible before the expiration of twenty-six hours after. The grain will swell both in the cistern and in the couch, but it cannot fairly increase beyond a certain amount, and any increase beyond that amount is evidence of fraud. The duty is charged for so many bushels of malt as the officer takes in either of the stages of operation, after making certain allowances; upon every gauge taken in the couch-frame an allowance of five bushels in every hundred is made. A test has existed for ascertaining whether malt has been unduly compressed, since the 41 Geo. 3. c. 91, An act for the better regulation and collection of duties of Excise,' by the first section of which the officer was empowered to throw the corn from the couch and lay it level and gauge it in the malthouse, on the floor, without returning it again into the couch-frame; then came the 48 Geo. 3. c. 74, which empowered the officer to "return or throw" the corn back into the couch after it had been turned out, and then to gauge it. Then came the 7 & 8 Geo. 4. c. 52, on the 33rd section of which this information is founded, and by section 34. of which the officer was empowered either to throw the corn out of the couch and then return it again and re-gauge it, or to turn over the corn in the couch and then re-gauge it, or to turn out part of the corn and turn over the rest, and then return the part thrown out and re-gauge the whole. Then came the 1 Vict. c. 49, the 3rd section of which repeals the 34th section of the 7 & 8 Geo. 4. c. 52, and which by section 5. reverts to the mode adopted by the 48 Geo. 3, viz., of throwing the whole out of the couch and returning the same, and then levelling and re-gauging it. Now the 7 & 8 Geo. 4. c. 52. s. 33. imposes a penalty on any maltster treading or forcing together corn in the couch-frame, and the 1 Vict. c. 49. s. 5. empowers the officer to require the grain to be thrown out of the couch-frame and to return it into the couch-frame, and then, after being returned and laid level, if any increase is found in the gauge or quantity over and above the former gauge, after allowing a certain |