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THE

LAW JOURNAL REPORTS

FOR

THE YEAR 1873:

CASES RELATING TO

THE POOR LAW, THE CRIMINAL LAW,

AND OTHER SUBJECTS

CHIEFLY CONNECTED WITH

The Duties and Office of Magistrates,

DECIDED IN THE

COURTS OF QUEEN'S BENCH, COMMON PLEAS, AND EXCHEQUER

AND IN THE

COURT FOR CROWN CASES RESERVED,

MICHAELMAS TERM, 1872, TO MICHAELMAS TERM, 1873.

REPORTED

In the Court of Queen's Bench,

By ROBERT SAWYER, Esq., AND ARTHUR PAUL STONE, Esq.,

BARRISTERS-AT-LAW.

En the Court of Common Pleas,

By WILLIAM PATERSON, ESQ., AND GILMORE EVANS, Esq.,

BARRISTERS-AT-LAW.

In the Court of Exchequer,

By HUGH COWIE, ESQ., AND JAMES M. MOORSOM,
Esq., BARRISTERS-AT-LAW.

In the Court for Crown Cases Reserved,

By THOMAS SIRRELL PRITCHARD, Esq., BARRISTER-AT-LAw.

MAGISTRATES' CASES.

NEW SERIES, VOL. XLII.

LONDON:

PRINTED BY SPOTTISWOODE AND CO., NEW-STREET SQUARE.

PUBLISHED BY EDWARD BRET INCE, 5, QUALITY COURT, CHANCERY LANE.

MDCCCLXXIII.

REPORTS OF
OF CASES

CHIEFLY CONNECTED WITH

THE DUTIES AND OFFICE OF MAGISTRATES,

AND THE ADMINISTRATION OF THE POOR LAW

AND THE CRIMINAL LAW.

VOL. XLII. (NEW SERIES), COMMENCING WITH

MICHAELMAS TERM, 36 VICTORIÆ.

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Amendment-Order of Justices-Certiorari-12 & 13 Vict. c. 45. s. 7-Bastardy.

A bastard child having been born on the 27th of May, 1870, the mother applied on the 11th of August to M., a justice, who issued a summons against T., the alleged father. Several successive summonses were issued, and in March, 1871, T. was served with a summons to appear before the justices on the 11th of April. The mother and T. attended, but the mother withdrew the summons and on the same day applied to B., another justice, who issued a summons requiring T. to appear on the 25th of April. On that day an order was made, which recited the application to M., adjudged T. to be the father of the child, and ordered him pay 2s. 6d. per week, commencing from the 11th of August, 1870, the day on which the mother applied to M.:-Held, that the 7th section of 12 & 13 Vict. C. 45 gave the Court no power to amend this invalid order, by alleging the application to B. instead of the application to M., or by making the payments to begin from the 11th of April, 1871, instead of from the 11th of August, 1870. NEW SERIES, 42.-MAG. CAS.

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This was a rule calling upon Jane Flower to shew cause why an order of affiliation, bearing date the 25th of April, 1871, adjudging the defendant, Thomas Tomlinson, to be the putative father of a certain bastard child born of the body of the said Jane Flower, on the 27th of May, 1870, should not be quashed.

It appeared from the affidavits, that on the 11th of August, 1870, the said Jane Flower applied for and obtained a summons against the defendant from William Masefield, Esq., one of the justices for the division of Stone, in the county of Stafford. The defendant contrived to evade service of this summons, and several successive summonses were issued upon the same complaint, but the defendant could not be served until the month of March, 1871. The summons came on to be heard on the 11th of April. Jane Flower and the defendant appeared, but the attorney for Jane Flower was unable to attend, and as the defendant refused to consent to an adjournment, except upon payment of costs of the day, she withdrew the summons, and intimated an intention of taking out another. The same day she went before Moreton Edward Buller, Esq., another justice attending the same petty sessions, and made application for a summons, which was granted, returnable on

B

the 25th of April, on which day the defendant and Jane Flower appeared, and an order was made reciting the application to the said William Masefield, adjudging the defendant to be the father of the child, and ordering him to pay 2s. 6d. a week from the 11th of August, 1870, "being the day upon which such application was made to the said justice as aforesaid." The justices, in making this order, acted under the mistaken notion that as a series of summonses had been issued, they were entitled to consider the summons signed by the said Moreton Edward Buller as a summons issued upon the original information.

P. M'Mahon shewed cause against the rule. It must be admitted that the order is bad, inasmuch as by it the defendant is ordered to pay the money for the maintenance of the child from the 11th of August, 1870, when the first application was made to William Masefield, which application is recited. But the Court will amend the order, so as to make it a valid order. Power to make such an amendment is conferred upon the Court by 12 & 13 Vict. c. 45. s. 7, which, after reciting that, "in many cases where justices of the peace are by law empowered to make orders or to give judgments, great expense and frequent failures of justice have been occasioned by reason that such orders and judgments have,

on removal by certiorari into the Court of Queen's Bench, been quashed or set aside upon exceptions or objections to the form of the order or judgment, irrespective of the truth and merits of the matters in question," proceeds to enact that, "if, upon the return to any writ of certiorari, any objection shall be made on account of any omission or mistake in the drawing up of such order or judgment, and it shall be shewn to the satisfaction of the Court that sufficient grounds were in proof before the justice. or justices making such order or giving such judgment, to have authorised the drawing up thereof free from the said omission or mistake, it shall be lawful for the Court, upon such terms as to payment of costs as it shall think fit, to amend such order or judgment, and to adjudicate thereupon as if no such omission or mis

take had existed." There is no doubt that sufficient grounds were in proof before the justices to have authorised the drawing up of the present order free from omission or mistake, and it will be good and sufficient if this Court will amend it by alleging the application to Moreton Edward Buller instead of the application to William Masefield, and by making the weekly payments begin to run from the 11th of April, 1871, instead of from the 11th of August, 1870. Upon the 25th of April, when the order was made, the justices were, in fact, hearing the complaint of Jane Flower, made on the 11th of April, 1871, and they have simply made a mistake in drawing up the order. In The Queen v. Higham (1), the Court made an amendment under the above section.

Kemplay, in support of the rule, was not heard.

COCKBURN, C.J.-I am sorry that this amendment cannot be made. The mistake which the justices have made is in making the order operate from the 11th of August, 1870, instead of from the 11th of April, 1871. This is a mistake in substance in the making of the order, not a mistake in form in drawing up the order. The 7th section of 12 & 13 Vict. c. 45 provides for the amendment of a mistake in form in the drawing up of the order, but if we acceded to the present application we should be making an amendment in the very judgment of the justices, which would clearly be beyond the scope of the provision in the 7th section.

BLACKBURN, J., and QUAIN, J., concurred.

Rule absolute to quash the order.

Attorneys-Henry Tyrrell, agent for E. A. Tennant, Hanley, for prosecution; F. W. Blake, agent for B. H. Smallwood, Newport, Salop, for defendant.

(1) 7 E. & B. 557; s. c. 26 Law J. Rep. (N.s.) M.C. 116.

[IN THE COURT OF QUEEN'S BENCH.]

(In the Second Division of the Court.) 1872. April 23.]

FOULGER (appellant) v. STEADMAN (respondent). Railway Station-Premises connected therewith-Wilful Trespass-3 & 4 Vict. c. 97. s. 16-Cabstand.

A railway company allowed a portion of the premises connected with their railway station to be occupied as a cab-stand by cabs, the drivers of which paid a weekly sum for the privilege. S., a cab-driver, placed his cab upon the stand and refused to move, although he was requested to do so by the officer of the company. He did not pay the weekly sum charged by the company, and by occupying a place upon the stand he deprived another cab-driver, who had paid the said weekly sum, from occupying a place upon the stand.

By 3 & 4 Vict. c. 97. s. 17, “if any person shall wilfully trespass upon any railway, or any of the stations or other works or premises connected therewith, and shall refuse to quit the same upon request to him made by any officer, &c., he shall forfeit," &c. :

Held, that if S. intentionally and purposely kept his cab upon the stand after being requested to move off, he did so wilfully, and was liable to the penalty imposed by the above section, although he honestly believed that he was entitled to keep it there without making any payment to the company.

CASE stated by one of the Aldermen of the City of London, under statute 20 & 21 Vict. c. 43.

1. Upon the hearing of an information preferred by the appellant, the Inspector of the Police of the Great Eastern Railway, against the respondent, a cab-driver, under the Act for regulating railways, the 3 & 4 Vict. c. 97. s. 16, for that the said respondent "on the 1st day of March instant, in Railway Place, Fenchurch Street, in the city of London, unlawfully and wilfully did trespass upon certain premises there, connected with the Fenchurch Street Station of the said railway, and did refuse to quit the same upon a request to him for that purpose made by

.

an officer of the said railway company, the information was dismissed.

2. The section of the statute referred to is as follows

"16. And be it enacted that if any person shall wilfully obstruct or impede any officer or agent of any railway company in the execution of his duty upon any railway, or upon or in any of the stations or other works or premises connected therewith, or if any person shall wilfully trespass upon any railway, or any of the stations or other works or premises connected therewith, and shall refuse to quit the same upon request to him made by any officer or agent of the said company, every such person so offending, and all others aiding or assisting therein, shall and may be seized and detained by any such officer or agent, or any person whom he may call to his assistance, until such offender or offenders can be conveniently taken before some justice of the peace for the county or place wherein such offence shall be committed, and when convicted before such justice as aforesaid (who is hereby authorised and required upon complaint to him upon oath to take cognizance thereof, and to act summarily in the premises) shall, in the discretion of such justice, forfeit," &c.

3. It was proved by a constable employed by the railway company, that the respondent, on the 1st day of March instant, drove a cab into Railway Place, the sides of which next to the kerb of the footways the railway company allow to be occupied as cab-stands by cabs, the drivers of which paid to the witness, for the company, four shillings per week for that privilege.

4. That about forty cab-drivers pay that sum, and that there is room for fifteen cabs thereon at one time.

5. That the respondent is not one of such cab-drivers; that he refused to move therefrom when requested by the witness; and that by occupying a place on the stand he was depriving another cab-driver who had paid for the privilege from the advantage of being upon the stand.

6. I find as facts that the place occupied by the respondent's cab was not in or opposite the railway station, but opposite some refreshment and other shops, and between them and certain other

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