1793. ELSEE against GATWARD. the old, materials. This is a misfeazance, and on that ground I think that the second count may be supported. Per Curiam, Judgment for the defendant. Thursday, If defend- order to plead issu ably, put in a plea, though inwhich goes formal, to the substance of the action, the plaintiff as for want of a plea. Willes 481.] THELLUSSON against SMITH. THE defendant in this action for slander, being under a judge's order to plead issuably, delivered a plea, in which he attempted to justify the words; but it was not, strictly speaking, a justification. The plaintiff treated this as a nullity, and signed judgment as for want of a plea. A rule having been obtained, calling on the plaintiff to shew cause why the judgment should not be set aside, it was now opposed by Erskine and S. Heywood, on the ground that this was merely cannot sign a dilatory plea, and would not decide the merits of the case. But judgment Per Curiam.-If this plea cannot be supported, the plaintiff should have demurred to it, instead of signing judgment as for want of a plea. Where indeed a plea has appeared on the face of it to be a dilatory plea, the Court has in some cases gone the length of saying that the plaintiff might treat it as a nullity. But this plea is not of that kind, for it goes to the substance of the complaint though whether it be a formal and good plea it is not necessary to consider now; if it be bad, the plaintiff must demur to it. Rule absolute (a). Bearcroft and Baldwin in support of the rule. (a) Vide Coppin q. t. v. Carter, ante, 1 vol. 462. Thursday, Jan. 31st. If defend IN PETRIE against FITZROY. N this action of debt on bond, there being no rejoinder, the plaintiff entered up judgment by default as for want of a may strike plea, not of a rejoinder. ant do not rejoin, the plaintiff out the preious plead On a former day Holroyd obtained a rule to enter the plea ings, nd and the replication on the record. enter judgment as lor want of a plea. Russell now moved to discharge that rule, saying it was unnecessary to enter all the pleadings, and could answer no other purpose than that of creating expence. This was opposed by Holroyd in the first instance.-The different parts of pleading are supposed to be minuted down in court by the proper officer when when they are severally pleaded. Before a replication is filed. plea must have been put in, and (as is supposed by the Court) entered on record when pleaded: then a subsequent default in not answering the replication in a subsequent term cannot destroy the plea so put in before. Suppose after plea pleaded the plaintiff were to reply as to part, and enter a noli prosequi as to the rest, a subsequent default in the defendant, in not rejoining, would not entitle the plaintiff to strike out these pleadings. Per Curiam.-Whenever it becomes necessary to enter all the pleadings on the record, as in the instance put of a noli prosequi as to part, it may be done : but, generally speaking, it can answer no purpose, and is perfectly unnecessary. The master says, that in such cases it is the practice to strike out all the pleadings. And, in truth, if the defendant do not rejoin, it is considered as an abandonment of the plea. Rule absolute (a). (a) Vide Bro. Abr. "Default," pl. 58. 1793. PETRIE against FITZROY. E. The KING against The Inhabitants of MARGRAM. WILKES, his wife, and daughter, were removed from • Merthir Tidvill to Margram by an order of two justices, which was confirmed on appeal, subject to the opinion of this Court on the following case: there be no indenture, he cannot gain a settlement, eis apprentice, or a yearly ther as an "It appeared that E. Wilkes, the pauper, was born in the pa"rish of Neath in the county of Glamorgan, and had gained no 66 settlement any where; but his father told him that his mother "had made an agreement with Mr. Tyler, agent for the English servant. 66 Copper Company, who lived in the parish of Margram in the "county of Glamorgan, for him to serve seven years as an appren "tice: and that he served in the said copper works for the space "of eight years, and there learned the trade of a refiner, and "received weekly wages, as also twenty shillings by the year as a "refiner; and that he conceived himself to be serving Mr. Tyler, as an apprentice, but that the said E. Wilkes, the pauper, signed no indenture or agreement whatsoever; neither was there "any indenture or agreement signed by any other person on his "behalf to his knowledge." 66 The Court, without hearing any argument, were clearly of opinion that this servitude as an apprentice could not be con 1793. The KING against The Inha bitants of MARGRAM. verted into a service under any hiring; and that, as the pauper had gained no settlement in Margram, The Orders must be quashed (a). Marryat in support of the order of sessions. (a) Vide R. v. Little Bolton, Cald. 367. and the cases there cited; and Rer v. Ditchingham, ante, 4 vol. 769. Wednesday, Feb. 6th. The ap a master living at 4. who has a certificate from B., but not delivered to officers of A. may gain a set TH The KING against The Inhabitants of WENSLEY. prentice to HE pauper, being legally settled at Wensley, was bound apprentice to R. Hallam of Chesterfield, with whom he continued two years. Before the pauper was bound to Hallam, the overseer of Chesterfield told Hallam he must procure a certifi cate, or they would remove him; he accordingly, before such the parish binding of the pauper, procured a legal certificate from the parish of Chaddesden, directed to the township of Chesterfield, acknow dement by ledging Hallam to be their parishioner; but nothing further passed between Hallam and the overseers of Chesterfield respecting the certificate, after their first requisition to him to procure one; he therefore, not being again called upon, did not deliver the certificate to the overseers of Chesterfisld, and it remained in his hands without mention or further notice during the whole time that the pauper served him as his apprentice at Chesterfield; but some time after the pauper left Hallam the certificatewas delivered by Hallam to the overseers of Chesterfield. The Court of Quarter-sessions confirmed the order, by which the pauper and his family were removed from Chesterfield to Wensley. such apprenticeship. [1 Eust 438.] Erskine and Balguy, in support of the order of sessions, after stating the question to be, Whether a certificate took effect only from the delivery to the officers of the parish to which it was directed, or by relation from the time of signing by the certifying parish and the allowance of it by the justices? argued in support of the latter proposition; for that, though a delivery to the other parish were necessary, yet when delivered it had reference to the signature. That, reasoning by analogy to other cases, where several acts are necessary to give validity to any particular transaction, when completed they had relation to the first act : as the enrolling of a bargain and sale, to the execution of the deed; a deed to declare the uses of a fine or recovery, to the fine or recovery itself; or the declaring of a person a bankrupt to the first act act of bankruptcy. That the principle equally extended to cases where third parties were affected, as in the instances of bankruptcy or of forfeitures, where they had the effect of avoiding mesne incumbrances. That, in this particular instance, it was of great importance that the certificate should take effect from the signing, if it were afterwards allowed and delivered; because the date, which appeared upon the face of it, would preclude all dispute about its commencement; whereas, if it were only to take effect from the delivery, that time must be ascertained by parol proof, which might lead to contradictory evidence. That the words in the stat. 8 & 9 W. 3. c. 50. s. 2. "if any person "shall procure, bring, and deliver, &c. a certificate," were merely directory. And that this question had been already decided in R. v. Buckingham (a), where a certificate from Fringford,which was not delivered by the pauper to Buckingham parish until after her removal, was held conclusive against the former parish, so as to avoid a settlement gained in the latter before the granting of the certificate. Lord KENYON, Ch. J. (stopping Bearcroft, Coke, and Clarke, contrà.)—We cannot depart from the express and positive words of the act of parliament, which are decisive of this question. In the construction of some statutes the courts have thought, from considering the context and the words of it, that some particular words are merely directory: but there is nothing in this statute to shew that the words commented upon should be construed to be directory only. The statute says expressly that "if any person, who shall come into any parish, &c. shall at the same time 66 procure, bring, and deliver, to the churchwardens, &c. of the parish where such person shall come to inhabit, a certificate,” &c.; the act therefore requires a delivery at the time when the pauper goes into the certificated parish; and it is essential to the interest of that parish that it should be delivered, as the withholding it from them for a time may be the means of introducing frauds. The case cited only decided that a certificate, though not delivered, was an acknowledgment by the parish granting it that the pauper was settled with them when it was given, but did not determine that it prevented the pauper gaining a settlement in the certificated parish after it was granted. (a) Cald. 64. Both Orders quashed. 1793. Wednesday, A soldier in actual ser vice may be committed to prison, suretics, under the statute for being the father THE The KING against W. BowEN. HE defendant, having been committed to the house of cor. rection at Aylesbury on the 9th of October, (ona chargemade by A. Ives of Eton parish for begetting her with child, which for want of child was likely to become a bastard,) for refusing to give security to indemnify the parish of Eton, and for refusing to enter into a GG. c. 31. recognizance, with sufficient surety, to appear at the then next general Quarter-sessions for Buckinghamshire, and to abide by of a bastard and perform such order as should be made in pursuance of the stat. 18 Eliz. c. 3. was ordered by the last Court of Quarterwill grant a sessions to be continued in custody till, &c, and the following case was stated for the opinion of this Court, child. Whether the Court certiorari to remove an order of Sessions by which a soldier is continued in custody on such a charge? Quære. W. Bowen was on the 9th of October last committed to the house of correction at Aylesbury, upon the charge above mentioned, by warrant of Sir C. Palmer, Bart. one of his majesty's justices of the peace acting in and for the county of Bucks, under a warrant, and is now in custody. The said W. Bowen was at the time of his being apprehended on the charge specified in the said commitment, and still is, a private soldier enlisted and actually serving in his majesty's 29th regiment of foot, and has no property, except his pay and subsistence as such soldier; and the said A. Ives is not yet brought to bed. Wilson, in support of the order of sessions, after mentioning the case of R. v. Archer (a) as decisive of the present, was stopped by the Court. Lowndes, contrà, observed, on comparing the several mutiny acts (b), that no soldier could be arrested other than for some criminal matter, unless for a real debt of 207. (which was admitted by the Court,) and contended that the charge for which the defendant was continued in custody was not of a criminal nature, considered in the courts of common law, though the ecclesiastical courts considered it in that light. The stat. 13 Ed. 1. c. 4. enacts that no prohibition shall go to the spiritual courts in cases of fornication; which shews that this is merely a crime of ecclesiastical cognizance. The stat. 18 Eliz. c. 3. which enables two justices to take order for the punishment of the mother and reputed father, as also for the relief of the parish, (a) Ante, 2 vol. 270. (b) See the words of the Matiny Act, 26 Geo. 3. c. 10. in R. v. Archer. &c. |