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Analytical Digest of Cases : Common Law Courts.
Ing and occupying a house in L. for one year, I therefore did not warrant the order of removal, at 221. a year, and being assessed to the poor- the sessions decided in favour of the appeal, rate in L., which the party had paid as the oc- subject to the opinion of this court on the cupier of the said house during his occupation. question, whether or not the objection was The ground of appeal was, that the examina- fatal: Held, that the legitimacy appeared suffition was defective as not stating in what year ciently to warrant the order of removal. Order or years the party rented and occupied, or that of sessions quashed : Semble, per Lord Denman, the house was rented by him in L., or occupied C. J., that if the question submitted had been, under a yearly hiring, and the rent to the whether or not the examination gave the apamount of 101. actually paid for one whole year pellant sufficient materials for inquiry, this court at the least, or that such house was actually would not have interfered with the decision at occupied under a yearly hiring by him, and the sessions. That paupers are " receiving relief rent, &c., paid by him for the same, or that he from," and "actually chargeable to,” a townhad been assessed to the poor-rate and paid the ship which they inhabit, is a sufficient aver. same in respect of such house for one year. ment of chargeability. Reg. v. Inhabitants of The order of sessions stated the order of re- Totley, 7 Q. B. 596. moval to be quashed on the ground of the “ex- See Chargeability ; Jurisdiction ; Order, 3; amination disclosing no settlement on the face Settlement. thereof, and the appellants having given notice
SERVICE OF NOTICE OF APPEAL. thereof in their grounds of appeal.” The pauper being again removed from P. to L., it Notice of appeal against a conviction under was stated, and relied upon as a ground of stat. 5 & 6 W. 4, c. 50, s. 72, is well served on appeal, that the examinations did not show
the justice, under s. 105, if delivered at his
any settlement acquired since the above order of dwelling-house, though not to him personally, sessions, and in fact no new settlement ac
Reg. v. Justices of North Riding of Yorkshire, quired. The sessions, however, confirmed the 7 Q. B. 154. new order of removal, subject to a case stating
See Order, 1. all the circumstances of the former decision,
SETTLEMENT, and submitting as the question for this court, 1. Presumption of emancipation.-A pauper whether or not the former order of sessions was removed to parish A. on examinations, was conclusive. Held, that this court, being which showed that he had gained no settlement enabled by the case stated to see that the in his own right, and that when the pauper was former order of sessions had disposed of the 27 years old his father had received relief from substantial question, might pronounce that parish A., while resident elsewhere. order conclusive, though the sessions by their Held, sufficient, for that emancipation was not last order had decided the contrary. And the to be presumed. latter order was quashed. Reg. v. Inhabitants Although it was not stated that the pauper, of St. Mary, Lambeth, 7 Q. B. 587.
at the time in question, was resident with his 7. Conclusiveness of former order of sessions father or formed part of his family. Rez. v. on appeal.- Appellants against an order of re- Inhabitants of Lilleshal], 7 Q. B. 158. moval objected, in their grounds of appeal,
Cases cited in the judgment: Rex v, Oulton, 3 that the examination did not properly show the Nev. & M. 62 ; S.C. 5 B. & Ad. 938; Reg.v. residence necessary to the acquiring a settle- Middleton in Teesdale, 10 A. & E. 688. ment, and that other specified facts were insuf
2. Certainty in examinations. Order under ficiently alleged; they also denied the settlement. At the sessions, this order was “on
seal.- In an examination touching the settlemotion of the said respondents, set aside for ment of a bastard child, (not shown to have insufficiency of examination.” Afterwards the gained any settlement since the birth,) a staterespondents again removed the paupers to the ment that such child was born “in or about appellant township on an examination disclos- 1833," is not sufficiently precise; since, under ing substantially the same grounds of settle- sec. 71, of stat. 4 & 5 W. 4, c. 76, it may be mament as before : Held, on appeal against this terial that the birth should have taken place second order of removal, that the first order of before Aug. 14, 1834 ; and the words "in or
about sessions was conclusive between the parties on
do not exclude the supposition that the point of settlement. Reg. v. Inhabitants of
the child may have been born later. Ellel, 7 Q. B. 593.
It is not necessary that an order of justice 8. Order removing children.— Averment as to
should be sealed with wax. An impression marriage of parents. - Decision at sessions.
made in ink with a wooden block, in the usual Chargeability.- Paupers were removed to the place of a seal, is sufficient, when the docusettlement of G. B. as their father, on an ex- seals of the justices, and is in fact signed and
ment purports to be given under the hands and amination stating that G. B. died on May 1, delivered by them. Reg. v. Inhabitants of St. 1843, and his wife the previous day, leaving eight children, some of whom were the said Paul's, Covent Garden, 7 Q. B. 232. paupers; and that the said children were resid- Case cited in the judgment: Reg. v. Justices of ing with their said parents, G. B. and his said
Derbyshire, 1 Will. Woll. & Hodg. 393. wife, until their deaths as aforesaid. On appeal, 3. Hiring. — Certainty in examinations and objection taken, that the examination did Averment of being unmarried.-A statement in not show that the paupers were legitimate, and an examination, that the pauper, "in or about
TIME OF APPEAL.
REPORTED BY BARRISTERS OF THE SEVERAL
LICATION.-PRODUCTION OF DOCUMENTS.
Analytical Digest of Cases.-Superior Courts : Lord Chancellor.
357 the year 1832," was hired as a yearly servant, sought to show a settlement by rating, a subis insufficient, inasmuch as the hiring might pæna ad testificandum and a subpæna duces have taken place after Aug. 14, 1833, and the tecum may issue from the Crown Office to the year's service under it would consequently have parish officer of A., commanding him to attend not been completed before Aug. 14, 1834, and the examination at petty sessions, give evidence, so no settlement have been acquired, by stat. and produce the parish rate-books; and if he 4 & 5 W. 4, c. 76, s. 65.
disobeys, this court will grant an attachment. A statement that the pauper, “being then Whether, on attending with the books, he is unmarried and having no child or children," bound to submit them to examination, quære. was hired by S. as a yearly servant, and served Reg. v. Greenaway, 7 Q. B. 126., S. C., Reg. him under such yearly hiring for four years v. Carey, 7 Q. B. 131. and more, and lived and lodged in the ap- Case cited in the judgment: Amey v. Long, 9 pellant parish, “for more than 40 days next East, 473. preceding the termination of the said service," was held insufficient, inasmuch as the language
See Attachment ; Production of Documents. imported several yearly hirings, and it was not stated that, at the time of the last hiring, the See Appeal, 3; Highways. pauper was unmarried and without child or children. Reg. v. Inhabitants of St. Anne's, Westminster, 7 Q. B. 241; vide Reg. v. St. See Order, 2. Paul's, Covent Garden, 7 Q. B. 232.
4. Mother.-Pauper was removed on exami- RECENT DECISIONS IN THE SUPEnations showing a maiden settlement of his
RIOR COURTS. mother by residence, while unemancipated, with her father, who rented a tenement No. 3, Hotbath Street, in the parish of St. James, Bath. They further stated, that the pauper's father took a house, “being No. 8, Hotbath
Lord Chancellor. Street aforesaid,” of the yearly value of 101., and was legally settled upon, occupied, and re
Wragg v. Wragg. July 29, 1847. sided in, the same from March, 1819, for one NEW ORDERS, (no. 111).—ENLARGING PUByear and a half. Held, that “Hotbath Street aforesaid ” could
After publication has passed under the 111th not be taken to mean " Hotbath Street, in the
Order of May, 1845, the time may be enparish of St. James ;” and therefore that the
larged by the court if special grounds are father's settlement was not properly ascertained.
shoun, and if the defendant will not be That the respondents could not avail them
prejudiced by the indulgence. selves of the mother's settlement, because it
Semble, That it is not the usual practice to appeared that the father had a settlement,
include a motion for the production of which ought to have been inquired into. And
documents at the hearing, in an opposed that the order was properly quashed at sessions on these defects in the examinations pointed
motion for enlarging publication. out in grounds of appeal.
Mr. Cooper and Mr. Edward Webster moved The court will presume that a place in Eng. to discharge the order of Vice-Chancellor Wiland is parochial, if nothing to the contrary ap- gram, refusing the plaintiff's motion for leave pears. Reg. v. Inhabitants of St. Margaret, to examine witnesses after publication had Westminster, 7 Q. B. 569.
passed, and for the production at the hearing 5. Examinations.- Sufficient information.— of the probate copy of a certain will. The bili Conclusiveness of finding at sessions.-- An ex- was filed in July, 1845, by one of four legatees amination touching settlement stated a mar- against the defendant Wragg, the surviving riage to have taken place in the church of B. executor, and G. and S. Eaton, the representaAmong the grounds of appeal, it was alleged tives of a deceased executor of the testator, for that the examination was defective, because an account of a sum of money directed by his there were two churches of B.; and this ap- will to be set apart, to answer an annuity bepearing in evidence to be so, the sessions re- queathed by him to the mother of the plaintiff. fused to hear the respondents, but stated the Three of the four legatees were also made defacts for the opinion of this court, not sub- fendants; Wragg and E. and S. Eaton put in mitting any particular question. Order af- their answers in April, and in June 1846, to firmed, the decision being on a point of which which replication was filed by the plaintiff's sothe sessions were the sole judges. Reg. v. In- licitor, but no further steps taken and no evihabitants of Bakewell, 7 Q. B. 601 n.
dence produced: consequently publication passSee Appeal.
ed on the 2nd day of Michaelmas term, 1846, under the 111th Order of May, 1845. The
answers of the other defendants (the legatees) Order of removal.- Privilege of parish officer were not put in until June and July, 1847. producing documents.-On an application be- The grounds for the present application were, fore magistrates in petty sessions for an order that the solicitor for the plaintiff had made a to remove a pauper to parish A., where it is slip in the practice by prematurely filing repli
SUBPOENA DUCES TECUM.
Superior Courts : Lord Chancellor.–Rolls.- Vice-Chancellor. cation under the 93rd Order of May, 1845, be- being an outlaw, without proof of his harfore the last of the answers had come in, not ing become an outlaw subsequently to the being aware at the time of Vice-Chancellor filing of the original bill, or by consent. Wigram's decision in the case of Stinton v.
This was a motion to strike out the name Taylor, 4 llare, 608 ; that the defendants who of Mr. Whittaker, as a plaintiff in a bill of reopposed it had been as negligent as the plain- vivor and make him a defendant, upon the tit'in not prosecuting the suit, either by mov- ground that he had been outlawed, and that a ing to dismiss the bill for want of prosecution, plea of outlawry would be a bar to the suit if or by setting down the cause to be heard under
he were continued as a plaintiff. the 116th Order of May, 1845-and that the
Mr. Freeling for the motion. defendants would not be prejudiced by this in.
Mr. Lloyd, contrà, said, it did not appear dulgence to the plaintiff, as no evidence had but that Mr. Whittaker was an outlaw at the yet been given, and as no step to dismiss the time of the bill being originally filed, in which bill could be taken before next Michaelmas
case the outlawry would have been a good plea Term. They referred to Arnold v. Arnold, 1
to the bill. Phill. 805; Hemming v. Dingwall, i Coop. 14, and 10 Jur. 531, (also in 32 L. O. 251); Dalli, intention of directing an inquiry as to the time
Lord Langdale, upon this, intimated an more v. Ogilvie
, and Cresswell v. Harris, cited of the outlawry; but ultimately, with the conin Mr. Cooper's Report of the last case; Yate sent of Mr. Lloyd, made the order asked for, v. Bolland, 2 Dick. 495, and French v. Leusey, 6 Madd. 50.
on the payment of the costs of the application. The other part of the motion refused by his Honour was for the production at the hearing
Vice-Chancellor of England. of the probate copy of the will of the testator's
Baldwin v. Damer. July 3rd, 1847. deceased executor, and which Mr. Webster submitted, ought to have been granted as of DISMISSAL OF BILL. — ANSWER. — 16TH,
66TH, AND 68TH ORDERS OF MAY, 1845. Mr. Bacon and Mr. Wright, contrà, urged,
Where, through the negligence of plaintiff, that the great delay which had taken place pre
certain defendants have not answered the vented the plaintiff from receiving the required
bill, and one of the defendants is entitled to indulgence, as it was entirely unaccounted for;
move to dismiss the bill for want of proseand as no special circumstances were stated
cution, a motion for that purpose by such except the solicitor's mistake in the practice, and which the Vice-Chancellor did not think
defendant granted, and the bill ordered to
stand dismissed, unless plaintif filed his sufficient. In Hemming v. Dingwall, as re
replication within a given time. ported in the Jurist, (supra,) there appeared to have been only a delay of a few days. With This suit was originally instituted for the respect to the production of the probate copy purpose of restraining the directors of the Great of the will, his Honour was justified in refusing Munster Railway from dealing with a sum of it, as such application ought not to have been 21,000l. The injunction was refused, and the mixed up with the motion for enlarging publi- bill not having been amended within the time cation, and had evidently been introduced allowed by the orders of the court, merely as a makeweight for the purpose of ask
Mr. Hubback now moved, on behalf of one of ing for costs.
the defendants, to dismiss the bill for want of The Lord Chancellor remarked, that with re- prosecution. gard to one part of the motion, (production of
Mr. Welford, on behalf of the plaintiff, the probate copy,) he thought the Vice-Chan- urged, that the defendants were sixteen in cellor was quite right—as to the remaining number, and that three or four of them had portion of it, he thought it might be granted, not put in their answers on account of negotiaas both parties had been equally negligent. If tions going on between them and the plaintiff; the plaintiff alone had caused the delay it would and he cited the case of Arnold v. Arnold, Leg. have been a different matter; or if the defend. Obs. May 15th, 1847, lately decided before ant would be prejudiced by granting the mo- the Lord Chancellor, as authorising the delay tion. His Lordship said, that without laying which had taken place on the part of the down any principle for these applications, he plaintiff. thought, under the circumstances of this case, The Vice-Chancellor said, it appeared that the indulgence might be granted and publica- the plaintiff had got in the answer from some tion enlarged until the first day of next term, of the defendants, but that instead of comupon payment by the plaintiff of the costs of pelling the rest to answer, had been entering the application.
into negotiations with them, and had therefore himself been wilfully delaying the prosecutioa
of the suit. Under such circumstances, he was Rolls Court.
of opinion that the motion ought to be granted Whittaker v. How. May 22, 1847. and the bill dismissed, unless the plaintiff OUTLAWRY. -REVIVOR.
would undertake to proceed within three The court will not allow a plaintiff in an weeks.
original cause to be turned into a defendant
Superior Courts : V. C. Knight Bruce.- Queen's Bench.
359 Vice-Chancellor Knight Bruce.
child was above the age of nineteen; that Re Pongerardo. June 25th, 1847.
the defendant was willing and able to main
tain the child; that when requested the GUARDIAN.--INFANT.—PETITION.- SIR E. SUGDEN'S ACT, 1 w. 4, c. 65, s. 32.
plaintiffs refused to deliver the child into
the care and custody of the defendant ; and A petition under Sir E. Sugden's Act, (1 W. that the plaintiff's were damnified by their
4, c. 65,) for payment of dividends belong- own voluntary act. Replication traversing
Held, on motion to enter judgment non obing refused to obey an order granted upon stante veredicto, that the facts disclosed in a petition seeking payment, and also, the
the plea afforded a good defence to the appointment of a proposed guardian, the action, and showed that the expense sought court thought the objection valid.
to be recovered was incurred by the volunA PETITION had been presented in this case tary act of the plaintiff. in the name of the proposed guardian and of
This was an action of debt on a bastardy the infant, seeking a reference to the Master to bond, dated the 28th February, 1825, given by approve of such guardian, and also, an order the defendant to the plaintiffs, the churchupon the Bank of England to pay the dividends wardens and overseers of the parish of Mansto such guardian when appointed. It was field, to indemnify them from all incumbrances, thought to be doubtful whether such a petition costs, damages, and expenses whatsoever, by embracing both objects could be regular under reason of the birth, education, and maintenance Sir E. Sugden's Act, which seemed to confine of a bastard child, and from all actions, suits, the jurisdiction of the court to a petition pre- &c., touching or concerning the same, until sented solely by the guardian. The court, such child should have obtained a settlement out however, intimated that the petition did not of the said parish of Mansfield. The declara. appear objectionable, provided the bank did not tion, after setting out these facts, went on to refuse to act upon it
, but recommended the allege that the defendant did not indemnify the parties to take the order in another form.
parish, but suffered and permitted the said Mr. Daniel now appeared upon the petition of child to be maintained and provided for at the the guardian, seeking an order upon the bank
expense of the inhabitants of the said parish. for paying the dividends, and he stated that the The defendant, in his third plea, alleged, that bank declined acting under the former order.
after the making of the said writing obligatory, His Honour said, he thought the objection and before the commencement of the action, was good, and granted the prayer of the present the said child was above the age of ninepetition.
teen; that she has been and is under the
power and control of the churchwardens and Queen's Bench.
overseers of the parish; that the defendant (Before the Four Judges.)
was and is ready and willing and able to mainBownes v. Marsh. Trinity Term, 1847.
tain and provide for the child; and that the
plaintiffs, after being requested by the deDEBT. -INDEMNITY BOND-BASTARD.
fendant, have refused to deliver over the child To an action of debt on a bastardy bond of to the defendant; and that the plaintiffs are indemnity, the defendant pleaded that the damnified by their own voluntary act. The re
plication to this plea merely denied the request • Section 32, enacts, “That it shall be lawful of the defendant to have the child delivered for the Court of Chancery, by an order to be over to him. The jury found a verdict for the made on the petition of the guardian of any defendant on the third plea. A rule was afterinfant, in whose name any stock shall be stand- wards obtained for judgment on that plea, non ing, or any sum of money, by virtue of any act obstante veredicto, on the ground that the putafor paying off any stock, and who shall be tive father was not entitled to the custody of a beneficially entitled thereto, or if there shall be bastard child ; secondly, that the plea does not no guardian, by an order to be made in any allege that the child was willing to be placed cause depending in the said court, to direct all under the care of the defendant; and thirdly, or any part of the dividends due, or to become that no notice of the defendant's ability to due, in respect of such stocks, or any such sum maintain the child had been given to the parish of money, to be paid to any guardian of such officers. infant, or to any other person, according to the Mr. Hayes showed cause, and contended that diseretion of such court, for the maintenance the right of the putative father must prevail as and education, or otherwise for the benefit of against strangers, and that the point about the such infant, such guardian, or other person, to consent of the child did not arise, as the child whom such payment shall be directed to be in the plea was stated to be under the power made being named in the order directing such and control of the parish officers. He cited payment; and the receipt of such guardian or Haines v. Jeff'ell,“ Simpson v. Johnson, Hays v. other person for such dividends or sum of Bryant, Richards v. Hodges, Rex v. Cornmoney, or any part thereof, shall be as effectual as if such infant had attained the age of 21 • Lord Raym. 68.
bi Doug. 8. years, and had signed and given the same. ci H. Bl. 253.
i Mod. 43.
Superior Courts : Queen's Bench.-Exchequer.-Letter Box. forth,. Strangeways v. Robinson, Pope v. Sale, not the father of the child. The learned judge Sherman's case.h
told the jury, that if they were of opinion that the Mr. Macaulay, contrà. The parentage be- defendant was not the father of the child, then tween the father and a bastard child is not re- there was no evidence of any loss of service recognised by the law: Co. Litt. 123 a. The sulting from the defendant's connexion with child is capable of exercising a choice, and it the plaintiff's daughter, and that they ought to should be shown in the plea that she was find a verdict for the defendant. The jury willing to go to her father. The allegation in having found a verdict for the defendant, a rule the plea, that the child was in the power and nisi was obtained for a new trial on the ground control of the plaintiff, does not imply im- of misdirection, against which prisonment. In re Lloyd.'
Humfrey showed cause. Criminal know
Cur. ad. vult. ledge is not sufficient to found an action for Lord Denman, C. J., delivered the judgment seduction, unless attended with loss of service, of the court. After stating the facts of the or some pecuniary or other injury. Where the case and the pleadings, he said, the jury found party debauched' is in the service of another that the defendant was able and willing to person, the parent cannot maintain the action, maintain the child, and that the plaintiffs re- yet in that case the shame to the parent and fused to deliver her to him. But the plaintiffs the injury to his feelings are equally the same moved to enter a judgment for them, notwith- as if she were in his service. The action is standing the verdict, as they contended that founded on the loss of service, and unless some the facts as stated in the plea did not constitute injury results from the criminal connexion, an answer to the action, for that it was not there is no trespass of which the parent can shown that the child was willing to go and live complain. Grinnell v. Wells, 8 Scott, New with the defendant. We think the objection Rep. 741. ought not to prevail, for the plea states that the Prentice in support of the rule. It is conchild was under the control of the plaintiffs, and ceded that the action cannot be maintained that they refused to deliver to her the defend- unless there is some loss of service, but when ant. If she was willing, the facts set forth in the once the service is proved the law will presume plea show that the plaintiffs did not permit and a loss to the master in consequence of the suffer her to go to the defendant, and that their criminal act. The declaration would have been retention of her was contrary to his express good if it had merely stated that the defendant desire. He has, therefore, alleged sufficient to assaulted and debauched the plaintiff's servant; show that it was by the act of the plaintiffs the damage here stated is either a special themselves that this expense now sought to be damage or a consequential damage necessarily recovered from him was incurred.
arising from the act of the defendant. If in Rule discharged. the nature of special damage, it is admitted on
the record. Torens v. Gibbons, 5 Q. B. Rep. Exchequer.
297. Wherever a wrongful act is done, the law Eager v. Grimwood. Trinity Term, 1st June, will presume some damage. [Pollock, C. B. 1847.
Is there any authority to show that a master SEDUCTION.- Loss of service.-Master. may maintain an action of trespass for assault
ing his servant when the master has sustained An action for seduction will not lie, unless Abridgment, title Trespass, 453.
no damage?] It is so laid down in Viner's
Wherever some loss of service or other injury has re- there is an invasion of a legal right the law will sulted from the seduction. Therefore, where a parent brought an action for the G. 828 ; Woodward v. Watton, 2 New Rep. 476.
presume a damage. Fayre v. Prentice, 1 M. & seduction of his daughter then in his
Alderson, B. It is clear that the parent canservice, and it appeared that the defendant not maintain this action where his daughter is had seduced her, and that she was delivered in the service of another person, which shows of a child, but the jury found that the child that the action is founded on the loss of was not the defendant's : Held, that the service. Now, if the mere fact of connexion is jury were rightly directed to find a verdict to be held a loss of service, it is difficult to see for the defendant.
where it would stop. Suppose a servant took This was an action for seduction. The de- a walk, contrary to the orders of her master, claration stated, in the usual form, that the de- would that be a loss of service? The rule must fendant with force and arms, &c., assaulted be absolute to enter a nonsuit, unless the and debauched the daughter and servant of the parties agree to a stet processus plaintiff, by means whereof he was deprived of Pollock, C. B., and Rolfe, B., concurred. her services. The defendant pleaded not guilty. At the trial, before the Lord Chief Baron, it
THE EDITOR'S LETTER BOX. was proved that the defendant had had con The extent of the matter this week, includ. nexion with the plaintiff's daughter, and that ing some more of the recent Statutes, bas renshe was delivered of a child, but it was con- dered it expedient again to increase our usual tended on the part of the defendant that he was
Correspondents will please to address their
letters and communications to the Editor, at 8 7 Bing. 477. i Ventris, 210. 3 Man. & Gran. 547.
Messrs. Maxwell & Son's, 32, Bell Yard,