that the plaintiff is "to pay the sum of 11. 4s. 6d. for costs, to be paid on or before the 19th day of March next, and in default of payment of the said sums to be imprisoned," &c., means that he is to pay the three sums, namely, the penalty, the damages, and the

costs.

[PARKE, B.-The clause relating to costs may be read in a parenthesis.]

[ALDERSON, B.-And then the construction will be, that the words "said sums" apply to the penalty and damages only, and not to the costs.]

He referred to The Queen v. Wroth (7), and Ward v. Rolfe (8).

Worlledge, in support of the rule.-The information and complaint need not be made by the person aggrieved. The 65th section of the 7 & 8 Geo. 4. c. 39. enacts, that a party may be charged upon the oath of a "credible witness," without stating who that witness is to be." If the construction of the other side were correct, it would follow that an offender might go unpunished, unless the owner of the property were present, and actually witnessed the commission of the offence. In The King v. Daman the decision was different, because there was a section in the act authorizing the party grieved to recover the penalty, and therefore it was held, that the party aggrieved and the party making the complaint must be the same person. Griffith v. Harris (9) is in point. The 63rd section also shews that not only the owner of the property, or his agent, but also a peace officer may apprehend an offender, which seems to shew that the words " credible witness," in the 65th section, must apply to others than the owner of the property. Secondly, at common law one Justice might receive the complaint, and another might deal with it. In Jones v. Gurdon, Lord Denman says, "It may be conceded that in general, where no provision is made to the contrary, the original information or complaint may be made to one Justice, and another may hear and determine the matter." Thirdly, the order to pay costs does not invalidate the conviction (He was stopped as to this point.)

(7) I New Sess. Cas. 494.

(8) 9 Justice of Peace, 335.

(9) 2 Mee. & Wels. 335; s. c. 6 Law J. Rep. (N.S.) M.C. 29.

POLLOCK, C.B.-This rule must be absolute. Three points were made by the plaintiff's counsel, and the question turns on the construction of the 7 & 8 Geo. 4. c. 29, the 39th section of which creates the offence. The first objection is, that the party grieved is the only party who can make complaint; but that objection is not founded upon the language of the act of parliament, and if such had been the intention of the legislature, it might easily have been expressed. But I think it would be hard, in an action against a magistrate, if we were to form such a conclusion as the plaintiff asks us to form, from argumentative reasoning alone. The 39th section of the act would lead us to infer that any person whatever might institute proceedings before a magistrate; but the 65th section makes the matter clear, for it says nothing about the party grieved being the only complainant, but speaks of a credible witness appearing before the magistrate, who may be a peace officer, or any other person. But then it is said, that as the 70th section indemnifies the party convicted against other proceedings being taken against him: this would be unjust, unless the information were to be given by the aggrieved party alone. I do not, however, assent to that reasoning; for the legislature may have thought it just that a party who had been proceeded against in one way should not be liable to any other proceeding. Mr. O'Malley also suggests, that if this were the true construction, a compromise might be effected by some friend of the party convicted; but the answer to that argument is, that that would be a fraud, which would not avail, but would render the proceedings null and void, as in the case of The Duchess of Kingston (10). The next objection is, that the information was received by one Justice, and the conviction took place before another; but the statute contains an express enactment, s. 73, that "no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and that there be a good and valid conviction to sustain the same." And it is a rule that, if a conviction is correct in form, although it might be set aside on appeal, yet in an action the party convicted cannot travel (10) 1 Leach, C.C. 146; s. c. 1 East, P.C. 468.

out of it. However, I give no opinion as to whether one magistrate may receive an information and another convict upon it. Here the conviction is good, and we cannot receive evidence to impeach or falsify it. The defendant need not have appeared, or he might have appealed. With regard to the question of costs, it is plain, if all the clauses of the act are read together, that the legislature intended to intrust the magistrate not only with the power of inflicting the penalty and the damage, but also of imposing the costs; and I think the award of costs is in pursuance of the act of parliament. The result is, that the objections to the conviction and the warrant fail, and the rule must be made absolute.

Mr.

PARKE, B.-As to the first point, whether an information for cutting trees must be by the party grieved, I entertained some doubt, and, although that doubt is not very strong, it is not quite removed. The enacting part of the statute does not contain a clause that no one but the party grieved can proceed for penalties. My doubts arose from the 68th and 70th sections. O'Malley's argument was, that it would be hard that a conviction should be a bar to the owner of the property bringing an action for the damage when the conviction did not proceed upon his own information, or that of a person authorized by him; and he cited The King v. Corden and The King v. Daman. In those cases the inference was certainly much stronger than in this; but there there was a given remedy by action, and the Court considered the object of the act of parliament to be to give protection to the party grieved. In the present case we may put a different construction upon the act, for I cannot think that the general words of the statute make it necessary for the information to be by the party grieved. The words of the statute are general, and shew that any person may give information. The next question is, whether a conviction can take place before any other magistrate than the one who received the information. That depends upon the words of the act, as there is no common law rule on the subject, and the awarding of penalties is a statutory proceeding. What, then, is the meaning of the legislature? Under the 65th section there is no doubt as to the power of one

magistrate to proceed and hear the case; for the language of the act is that he may "summon the person charged to appear at a time and place to be named in such summons." The section is general in its terms, and does not direct that the party is to appear "before him," namely, the magistrate who granted the summons. That distinguishess the case from Jones v. Gurdon. The act directs the party to appear generally, and then goes on to enact that, on proof of the service of the summons, the Justice may proceed ex parte, or issue his warrant to apprehend the person. The clause "if he shall not appear,' means if he shall not appear before any Justice on the return of the first summons. Under the 65th section, the original magistrate has also power to adjudicate; but if the party appears, any Justice upon the spot may determine the matter. I am, therefore, of opinion, that the conviction is valid. With regard to the question of costs, the act is certainly perplexed, but I think the magistrate has pursued it, with one alteration only, as to the introduction of the word "immediately," and that he has stated all that the act requires. The intention was, that if the party convicted were sent to prison, he was to pay costs, and he was also to pay them in other cases. Mr. O'Malley contends, that the magistrate imposed an illegal condition in this case, by directing the plaintiff to be imprisoned for non-payment of the damages, the penalty, and the costs. But if the conviction is read in connexion with the clauses of the act, it will appear that no other condition has been imposed than that which the act of parliament authorizes. The conviction is, that the plaintiff shall "forfeit and pay, over and above the value of the tree so stolen as aforesaid, the sum of 5s., and for the value of the tree so stolen as aforesaid, the further sum of 1s., and also to pay the sum of 17. 4s. 6d. for costs; to be paid on or before the 19th of March next, and in default of payment of the said sums, to be imprisoned," &c. The conviction then orders that "the said sum of 1l. 4s. 6d., for costs, shall be immediately paid to Joseph Reeves." It is clear, therefore, that the penalty and the attendant expenses are to be paid before the 19th of March, and that the costs are to be paid down. The true

construction of the conviction, therefore, is that the plaintiff was to be imprisoned only on his failing to pay the two and not the three sums; but if imprisonment did take place, then he could not be set at liberty without paying all three. It is then contended, that the commitment is bad, but that is not the case. Daniell v. Philipps (10) is in point. If the conviction and the commitment are read together, and construed in the same way, it will be clear that no illegal condition has been imposed.

ALDERSON, B.-With regard to the point on which alone any doubt has been entertained, I observe the act contains a form which directs that the value of the articles stolen or the amount of the injury done, "shall be paid to C. D. [the party aggrieved, &c.] and I order that the said sum of for costs shall be paid to [the complainant]". That shews that the complainant and the party aggrieved may be different persons, and seems to me to remove the difficulty suggested by my learned Brother Parke.

other parties to enable him to defray expenses of prosecution.

Where a rule for taxing costs is against several defendants, an attachment against only one for non-payment will not be set aside as irregular.

[For the report of the above case, see 15 Law J. Rep. (N.s.) Q.B. p. 376.]

[IN THE EXCHEQUER CHAMBER.] 1846. May 11; June 13.

KEIR V. LEEMAN AND ANOTHER.

Contract-Misdemeanour-IndictmentAgreement to compromise-Illegality.

An agreement, by which, in consideration that the prosecutor of an indictment preferred against certain persons for an assault and riot would not proceed further on the indictment, the defendants promised to pay him a sum of money, is illegal, although the prosecutor forbore to give evidence on the indictment with the knowledge and assent of the Court before which the indictment was pending.

In all offences which involve damages to an injured party, and for which he may maintain an action, he may, notwithstanding they are also of a public nature, settle his private damage in any way he may think fit; but a compromise of an assault, coupled with riot, is not legal.

[For the report of the above case, see 15 Law J. Rep. (N.S.) Q.B. p. 360.]

Appeal-Pauper removed, under order of removal in March, within fourteen days of Easter Sessions, and appellants enter and respite appeal ex parte, without notice to respondents, at Midsummer Sessions, and serve notice and grounds of appeal for October Sessions. Midsummer Sessions have jurisdiction to receive appeal, and propriety of their adjournment cannot be considered. Semble, for all purposes, first practicable sessions are first sessions within meaning of 9 Geo. 1. c. 7. s. 8; and Justices bound to respite an appeal entered at such sessions if no notice of appeal given, 1

Where Sessions not bound to hear on merits, though appellants waive objection to defect in examination, 20

Notice of, where properly signed by overseers of township, 21

Notice and grounds of appeal signed by majority of officers of parish, and stating, "We, being a majority of, and acting for and on behalf of the churchwardens and overseers, &c.," and also "that the following are the grounds of our appeal," sufficient. Decision on validity of notice of appeal only preliminary to right of appellants to be heard, 46

Time for appealing against order adjudging settlement of pauper lunatic, 52

Where specific objections preclude appellants, under their general ground of appeal, that order of removal and examinations are bad on the face thereof, from objecting that examinations are defective in other respects; viz., in not shewing a residence in appellant parish; in not purporting to be taken by Justices having jurisdiction; and in not stating that examination of pauper (a markswoman) was read over to her, 65

Order of removal made by A. B. and Josiah Wilson, and duplicate copy, served, in which name of latter Justice was illegibly written. In copy of examinations sent with order names of both Justices clearly written. Petition of appeal presented against order, describing it as made by A. B. and Jonah Walters, and appeal entered as against order made by A. B. and John Walter ; notice of appeal also sent describing it in the NEW SERIES, XV.—MAG. CAS.

same way. At Sessions original order produced, and Sessions dismiss appeal, on the ground that there was no order in existence against which it was entered. If Sessions of opinion that appeal was meant to be entered against real order, they would have jurisdiction, and mandamus issued to compel them to enter continuances and hear appeal, 100

Appeal Practice as to entering and respiting under 9 Geo. 1. c. 7, is not altered by 4 & 5 Will. 4. c. 76, ss. 79, 81. 9 Geo. 1. compulsory on Sessions to receive and adjourn appeal made to next sessions after order of removal, where no notice has been given to respondents; although appellants might have given notice, and tried appeal at those sessions, 127

Time for appealing against barrister's certificate of exemption from rates under 6 & 7 Vict. c. 36, 132

Apprentice-Two Justices make an order for binding apprentice under 56 Geo. 3. c. 139. In this order they describe themselves as "Justices of the Peace of the county of D." By their allowance of indenture of same date, and which indenture refers to the order, they sign their names, and describe themselves as "Justices of the Peace." It must be taken that Justices who allowed were Justices of the Peace of county of D, and allowance therefore sufficient. (Dubitante Lord Denman, C.J.) 97

Service of notice of intended binding of apprentice from one parish into another, upon one of the overseers of the latter, addressed to whole body of parish officers, is sufficient, 125 Arrest-Where prisoner arrested on Sunday, a subsequent detainer by another party, without collusion, is not vitiated by illegality of original arrest, 113

Bastard-Validity of order under 7 & 8 Vict. c. 101. not stating evidence of mother to have been given on oath, 3

Order of affiliation made under 7 & 8 Vict. c. 101. and 8 Vict. c. 10, must shew, upon the face of it, that it was applied for within forty

Z

days after service of summons on putative father
of child, 6
Bastard-Order of Quarter Sessions, reciting that
overseers of township of H. had applied to Justices
at petty sessions for order on D. S, putative
father of a bastard child, and that D. S. had
entered into a recognizance to answer the charge
at the Quarter Sessions, and that overseers at
such sessions applied to the Court for an order,
&c., and stating it was, upon the hearing, &c.,
adjudged that D.S. was the father, &c., and it was
ordered that he should pay to the said overseers
the sums mentioned in order, to reimburse them,
&c., and for maintenance, &c., bad on the face of
it, for shewing that application was made by
overseers, without also shewing that there were
no guardians for parish of H, or that it was not
situate in a union, 41

Justices no right to assume existence of prior
order; and mandamus to hear complaint, where
upon application by woman under 7 & 8 Vict.
c. 101. s. 2, for order upon alleged father of bas-
tard child, she had been delivered within twelve
calendar months before application, objection
was raised that a prior order had been made on
same complaint, and that it was incumbent on
applicant to shew that such prior order had been
quashed, not on the merits, in order to entitle
her to apply again, under 8 Vict. c. 10. s. 4, and
no evidence being given to shew that such prior
order ever existed, and Justices at petty sessions
decided that the complainant was bound, notwith-
standing, to prove that order was quashed for
defect in form, and, on her failing to do so, re-
fused to hear the application, 44

Date of order of maintenance not conclusive
as to time of making, and evidence of time of
signing by Justices admissible for the purpose of
shewing party is in time to appeal. Time for
appealing to be calculated from signature of Jus-
tices, 50

Recognizance entered into by putative father
to try appeal on 14th (a Saturday), and notice
sent by messenger on the 19th, who endeavoured,
on that and several successive days to effect per-
sonal service ineffectually. Notice actually
served on the 31st, too late, 99

Where, at Sessions in January, Court con-
firmed order in bastardy, subject to a case for
opinion of Queen's Bench, or to a mandamus
to hear appeal at the option of appellant, who
decided upon not bringing up the case, applica-
tion for a mandamus in Easter term, not too late.
Service of notice of appeal, under 7 & 8 Vict.
c. 101. s. 4, need not be made personally on the
mother, if left at her usual place of residence,
114

Bridge-City of New Sarum not liable to repair of
public bridge, locally situate within part of
parish of F. included within city after passing
of 2 & 3 Will. 4. c. 64. whereby a certain part of
parish of F. in county of Wilts, was included
within city of New Sarum, which is not a county
of itself, but which, after 5 & 6 Will. 4. c. 76,
had a separate court of quarter sessions, 15
Case-Where Sessions grant, for opinion of Court,
Court will not, on argument, entertain any ques-

If

tion not raised by Sessions for their decision.
intended to object to order of Sessions as bad on
face thereof, upon any grounds not raised by
special case, certiorari must be moved for in open
court, and such additional grounds of objection
stated, 70

Certiorari-Notice to Justices of intention to move
for in six days from giving of notice, or as soon
after as counsel can be heard, sufficient, 6

Order of Quarter Sessions abolishing fees of
officers of court removable by, 10

to remove order of removal before appeal, 48
Refusal of Court to grant certiorari to bring
up order of Sessions, made subject to a case more
than six months after making of order, where
application made at chambers within time had
failed in consequence of non-attendance of a
Judge there until after six months had expired, 92

Indictment for keeping disorderly house not
removable by, whether at prosecution of con-
stable, under 25 Geo. 2. c. 36. or at instance of
private individual, 158

Chargeability-A statement by the relieving officer
of a union that he has relieved the paupers with
money out of funds in his hands belonging to the
township of S., without shewing authority from
S., is not a sufficient statement of chargeability
to S., 117

Copy of a certificate of chargeability (in form
given by 7 & 8 Vict. c. 101. s. 69.) sent with order
of removal, and at foot of copy a note, that "this
certificate was received in evidence by us, two of
her Majesty's Justices," &c. Dates, and names
of the paupers, in certificate agree with those
in the order, and the names of the Justices
who signed the order and note the same,-This
sufficient for Court to presume identity of pau-
pers,
and that certificate had been produced before
removing Justices, 157

See Order of Removal.
Commitment-Under 3 Geo. 4. c. 23. s. 2, a warrant
which recites that a party was summoned before
two Justices to shew cause why he should not
pay rates, without alleging that they were the
same Justices by whom the warrant was issued,
must also shew that such first-named Justices
adjudicated in the complaint, 113

A warrant of committal to prison, until the
party find sureties to keep the peace, must specify
the time for which, in default of sureties, he is
to be kept in prison. It need not mention the
amount, 145

See Conviction.

Compromise of indictment, where valid or invalid,
164
Conviction-Not necessary in conviction under 39
Geo. 3. c. 79. s. 15, that information should be in
the name of Attorney or Solicitor General. Con-
viction following form given in that statute
sufficient, though name of informer (to whom by
statute half penalty imposed is payable) nowhere
appears therein, 7

Where the application of penalties is fixed by
law, and the Justices have no discretion as to
their distribution, a conviction which awards a
penalty to be applied as the law directs is good.
Conviction under 17 Geo. 3. c. 56. s. 10, for
having in possession materials suspected to be