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GROSE, J. This process, though criminal in its form, 1812. is in reality civil to all purposes for which it was sued out by the party; and when they are attained, it does not and Another seem to me that the permitting this mode of discharge
against will be productive of any inconvenience.
LE BLANC, J. If this proceeding went to defeat any
object of the criminal jurisdiction of the Court of Chancery, there would be much weight in the argument. But it has not been shewn to us that there was any other object in view, than that of compelling the party to place in the hands of the Master a sum of money found to be due from him, together with the costs; and it is now settled that an attachment, which is merely to enforce the payment of money, is to be considered as civil process. These notes were not given to the officer who executed the process, but to one of the parties to the suit who issued the process, and under the sanction of his solicitor, he authorizing the officer (while the accountantgeneral's office was shut) to discharge the party on payment of such a sum as was then supposed due; and if so much should not be due, then the notes would be good only for so much as was due. The officer derives no advantage from taking the notes. Then may not the party dispense with his own process ? It is in effect civil and not criminal process, and has been dispensed with by the party himself and not the officer. I think therefore the consideration of the notes was not illegal, and that there is no ground for saying it was nudum pactum.
BAYLEY, J. I see nothing against the policy of the law in allowing the plaintiffs to maintain this action.
1812. There was no impropriety in Tomlinson's taking the notes
and discharging the party. This was a writ for the purand Another pose of enforcing the payment of a sum of money, which against
Tomlinson had the means of enforcing or not; he need Close.
not have put the writ into the hands of the officer at all, and after he had placed it with the officer, he might have withdrawn it at his pleasure. The officer could not take bail, nor could he have taken the money without the concurrence of the party who sued out the writ; but the party may authorize him so to do. Now this was in vacation whilst the office was shut, and the party therefore, in order to give a reasonable indulgence to his debtor, agrees that he shall be released from the custody of the officer, upon giving security that the money shall be forthcoming when the office opened ; and he does give that security and is released. It is said that all the parties interested have not concurred; but it does not appear that any of them have complained, nor has the Lord Chancellor made any order thereupon against the officer, or directed the securities to be given up; and Tomlinson might very easily have obviated any inconvenience by paying the money into the office. Then no unfair advantage nor improper use seems to have been intended to be made of this process, nor is there any injustice to any one. I cannot therefore
that these notes were bad, or such as ought not to be enforced.
Judgment for the Plaintiffs.
The King against The Inhabitants of Saint
MARTIN AT OAK.
WO justices removed Thomas Gardener, Elizabeth A pauper may
his wife, and their three children by name, from the from a parish parish of Saint Martin at Oak in Norwich to the parish of where he is
residing under Drayton in Norfolk; which order was quashed by the a certificate to Sessions, upon appeal, subject to the opinion of this which he gained
a settlement Court upon the following case :
before the The pauper, Thomas Gardener, was in the year 1769 granting of the
certificate, and duly bound apprentice by indenture for seven years to need not of
necessity be John Miller of Costessey, cordwainer, and served him for removed to the one year and three quarters in Costessey, when Miller, certifying pahaving purchased an estate at Felthorpe, removed thither to'reside on it. The pauper accompanied Miller, and continued to serve him in Felthorpe until within sixteen weeks of the expiration of the said term of seven years, when Miller, having taken a public house, deemed it improper for the pauper to continue with him, and told the pauper so, and that he had provided for him another master of the name of Thaxter, who lived at Drayton, and who was to pay at the end of the sixteen weeks one guinea for the service of the pauper ; which sum the pauper was to receive in lieu of the guinea which he was entitled to at the end of the term under the indenture. The indenture remained in the hands of Miller uncancelled. The pauper went to Thaxter's accordingly, and served him in Drayton for the unexpired term of 16 weeks, when Thaxter paid him the guinea which had been agreed upon, in lieu of that which he was entitled to have received from Miller, and the pauper continued
1812. to serve Thaxter for one month further. In 1787 the
parish of Felthorpe granted a certificate to the parish of The KING against
Saint Martin at Oak, which was admitted on the trial of Thelnhabitants of
the appeal, acknowledging the pauper his wife and chilST. MARTIN
dren to be inhabitants legally settled in Felthorpe ; and AT (AK.
the pauper and his family continued to reside in Saint Martin at Oak under this certificate, receiving occasional relief from the parish officers of Felthorpe, until June last, when the pauper, his wife, and children, were removed by an order of two justices to Felthorpe. From this order the parish officers of Felthorpe at the next sessions entered an appeal, which was respited until the following sessions : at which sessions the parish officers of Saint Martin at Oak withdrew the order of removal, and the paupers were afterwards removed to Drayton as above stated.
Storks, in support of the order of sessions, did not dispute that the pauper T. Gardener gained a settlement in Drayton by service with Thaxter under the indenture, but endeavoured to shew that the parish of St. Martin at Oak, into which the pauper and his family came by certificate, were bound to remove them back to the certifying parish; which as between those two parishes, must be taken to be their last legal settlement, unless a subsequent settlement could be shewn. And as to the withdrawing the first order of removal after appeal against it, that was not an abandonment of the certificate, which therefore still subsisted at the time of the present order of removal. That being so, the 8 & 9 W.3. c. 30. imposed on the justices the necessity of removing to the certifying parish. The statute enacts, “that the certificate shall oblige the certifying parish to receive the pauper and his family
whenever they shall become chargeable to the parish to which that certificate was given, and that then it shall be lawful to remove such pauper to the parish from whence such certificate was brought.”
of ST. MARTIN
But the Court were clearly of opinion that the act was not restrictive of the power of removal from the parish to which the certificate is granted to any other parish, but only conclusive upon the certifying parish as between that and the parish to which the certificate is granted. This was considered to be the object of the act in Rex v. Lubbenham (a), and in a prior case of Rex v. St. Giles (b). All the authorities agree that it signifies nothing when the certificate was granted, it is only an estoppel upon the parish granting it as between the two parishes.
Order of sessions quashed.
Park and E. Alderson were to have opposed the order of sessions.
The King against the Inhabitants of the County
A Presentment, made by a justice of peace of the The 49 G. ?
c. 84. appoints county of Somerset on his own view, stated in trustees for substance, that from time immemorial there has been taking down
the old and
building a new bridge over the river Tone, and empowers them to take tolls, and that it shall be lawful for them, out of the monies received to build a new bridge, &c., and vests the property in the old and new bridge during the continuance of the act in the trustees, and that as soon as the purposes of the act shall be executed, then and from thence forth the tolls shall cease, and the bridge, &c. shall be repaired by such persons as are by law liable to repair the old bridge : Held that during the time the trustees were engaged in executing the powers of the act, and before they had completed them, the county was not liable to repair the bridge.