1791.

The KING

against

The Master and

HALL.

our minds, was what was said by Lord Mansfield in R. v. Gregory. But of that it is sufficient to say that it was not the point in judgment before the Court; his attention was not immedi Fellows of St. ately called to it; and I do not believe it was an opinion by which CATHERINE'S he would wish to be bound; it being at the most an obiter dictum, we do not lay so much stress on it as we should otherwise have done, as it came from so high and respectable an authority. The other authority cited on the same side was the case of Man chester College, and the act of parliament which was passed in consequence of that determination; but I confess that that statute weighs in my mind the other way. It was contended by the counsel in support of the rule, that the last clause of that act was at variance with the first, and abridged the construction of it. The first clause in that statute enacts that, when it shall happen that the wardenship of Manchester shall be held in commendam with the bishoprick of Chester, the power of visiting Manchester college shall be vested in the Crown; and it enables the king to visit it, according to the charter of foundation; that power of visitation then must be exercised by the king in his Court of Chancery. If that clause had stood alone, it would not assist the argument in support of the rule; because we must suppose that the Legislature intended in that case to follow the course of the common law as nearly as possible; and under that act the king cannot exercise his visitatorial power in this Court. Then it was argued that the last clause controuls the operation of the former, because it provides that disputes concerning the election of the members of the college shall be determinable by the course of the common law, as if there were no visitatorial power in being; but that clause does not say that in future times such shall be the law; it merely respects the case of the then existing members ; leaving the power of visiting in other cases in the chancellor, and cautiously avoiding to stir the question relative to the propriety of granting the mandamus, which gave rise to the act. These two authorities, which were urged in favour of the mandamus, being answered to our satisfaction, the only points left for our consideration are the convenience of the case and the general law on the subject. In general, corporate bodies, which respect the public police of the country and the administration of justice, are better regulated under the superintendance of this Court than of the Court of Chancery; but it is otherwise with eleemosynary foundations in general. What is said by Lord Holt in 12 Mod. seems decisive of this question: for though it is only called his private opinion, yet as it was formed by him on a subject which

he

he had so thoroughly considered, and as the general convenience of the case coincides with it, it is entitled to our best consideration: therefore, with no decided authority, or general principle of law against us, but with the convenience of the case and general principles of law in our favour, we shall do more substantial justice to the parties in this particular case, and to the public in general, by refusing to grant this writ of mandamus, and by referring this question to the Lord Chancellor, than by entertaining jurisdiction over it.

Rule discharged.

The KING against The Inhabitants of BIRDBrooke.

TWO justices removed M. Meers, his wife, and children, Service for a from Stoke by Clare, Suffolk, to Birdbrooke, Essex. The year under a Sessions confirmed the order, and stated the following case:

The pauper M. Meers, being settled at Birdbrooke, was hired when he was single, by John Olley, farmer, at Stoke by Clare, at three shillings per week the year round; each was to be at liberty on a fortnight's notice; but the pauper was not to go away at seed-time, hay, or harvest. He stayed in that service a year at Stoke, and received his wages at different times whenever he pleased.

J. Heywood, in support of the order of Sessions, contended, That the pauper gained no settlement at Stoke by Clare, because he only served there under a weekly hiring. R. v. Newton Tory (a). There is nothing to shew that this was a hiring for a year; for the expression of "the year round" is not stronger to that effect than that "of Summer and Winter;" which was held in R. v. Denham (b) not to be hiring for a year. The addition of the words "the year round" to the weekly wages was merely to regulate the price of the pauper's labour at the different seasons of the year, in case he consented to stay; but the proviso, that he should not leave the service at particular times of the year, affords a strong inference that he might have left his master at any other part of the year, without being guilty of a breach of his contract; and this is further confirmed by his being at liberty to put an end to the contract, on giving a fortnight's notice.

Lord KENYON, Ch. J. (stopping Erskine and Hay, contrà) said, No doubt can be entertained on this case. It does not

per week the year round,"

with liberty night's notice, will give a set

go on a fort

tlement.

[2 East. 224.]

even rest on a general hiring, for this was an express contract to serve "the year round." But it is said, That this cannot be considered to be a hiring for a year, because there was a reservation of weekly wages, and because each party was to be at liberty to put an end to the agreement on giving a fortnight's notice; but whether the wages be to be paid by the week or the year cannot make any alteration in the duration of the service, if the contract were for a year. This therefore was a contract for a year, at so much a week, with liberty to quit at any time except seed, hay, or harvest-time, on giving a fortnight's notice; but the power of giving notice makes no difference, for it has been held, that an agreement to leave the service on giving a month's warning, did not defeat the settlement (a).

ASHHURST, J. of the same opinion.

BULLER, J.-The only question is, Whether this were a yearly or a weekly hiring? In support of the order of Sessions the latter has been contended; but a hiring for a week, requiring a fortnight's notice, was never heard of.

GROSE, J. absent.

(a) R. v. New Windsor, Burr. S. C. 19.

Both orders quashed (b).

(6) Vid. R. v. The Inhabitants of Hampreston, post, 5 vol. 205.

Tuesday,

May 24th.

against over

seer's accounts

the sessions

disallow some

of the items,

the overseer to

lance to the suc

The KING against Sir J. CARTER and Others.

If on an appeal N an appeal against the allowance of the accounts of Mr. Read, an overseer of Fareham, Southampton, the Sessions disallowed several items in the account, amounting in the whole to 421. 7s. 1d.; but the order of Sessions did not proceed to and do not order direct Mr. Read to pay that sum over to the succeeding overpay the ba- seers. On Mr. Read's subsequent refusal to pay over this sum, two jus- an application was made to two of the defendants, as magistices out of Ses- trates, desiring them to enforce payment under the 43 El. c. 2. force payment s. 2 & 4. and 17 Geo. 2. c. 38. s. 3.; but those gentlemen, conceiving they had no authority to act, declined to interfere; fuse to interfere, whereupon a rule was obtained, requiring them to shew cause grant a manda- why a mandamus should not issue, to compel them, or any two them to hear the of them, to receive and proceed on the complaint against Mr. complaint. Read, for refusing to pay over the balance in his hands.

sions may en

of the balance; and if they re

this Court will

mus to compel

Burrough now shewed cause; contending, That the magistrates had no jurisdiction, as this case had been before the Sessions, who had made a judicial order upon the subject.

The

The 43 El. c. 2. s. 2 & 4. directs the overseers to pay over the balance in their hands to their successors in four days; and in default thereof, enables two magistrates to levy the sum due by distress and sale of the offender's goods, or to commit them to prison. The 17 Geo. 2. c. 38. s. 3. only enlarges the time of paying the balance to fourteen days; giving the justices the same power to commit the defaulters to prison, and omitting the levying of the balance by distress and sale: and under both statutes, an appeal to the Sessions is given against the allowance of the accounts; but the power of the magistrates is confined to cases where there is no appeal. Here the prosecutor chose to appeal to the Sessions; and therefore he should pursue that remedy by Sessions process: and these magistrates, acting out of the Sessions, have no power under either of these statutes to compel the payment of the balance of this account.

Lord KENYON, Ch. J. (stopping Portal, who was to have supported the rule) said, It seems to me that these justices have jurisdiction in this case. The effect of the appeal was the ascertaining the quantum of the arrears; and then the statute attaches, and enables the magistrates out of Sessions to enforce the payment of the balance.

ASHHURST, J. and BULLER, J. absent.

GROSE, J.-These are as much arrears now as they were before the appeal, only the quantum is ascertained.

1791.

The KING against CARTER.

Per Curiam,

Rule absolute.

WICKS against FENTHAM and Another.

Thursday, May 26th.

secution, tho'

acquitted on a

THIS HIS was an action for a malicious prosecution; at the trial An action liesfor of which, at the Westminster Sittings after last term, before a malicious proLord Kenyon, it appeared, That the defendants had indicted the plaintiff be the plaintiff, as constable, for having permitted a prisoner to defect in the inescape out of his custody; upon which indictment he had been dictment. [Willes 520. acquitted, because he was a headborough, and not a constable. 3 Esp. 7.] It was objected by the defendant's counsel: That this action could not be maintained, because the plaintiff had not been acquitted on the merits; and Lord Kenyon nonsuited the plaintiff, on the authority of a case at the Monmouth Assizes, 1768, before Aston, J. who thought, That, in order to entitle the plaintiff to recover in an action for a malicious prosecution, it ought to appear, by the opinion of the jury, that on the merits there was no foundation for the original prosecution.

Erskine

1791.

WICKS

against FENTHAM and Another.

Erskine obtained a rule on a former day, to shew cause why the nonsuit should not be set aside, and a new trial granted, on the authority of Chambers v. Robinson (a), where this precise point was determined, as well on authority (b) as on reason; and where the Court said, that " a bad indictment served "all the purposes of malice, by putting the party to expense "and exposing him, but that it served no purpose of justice ❝ in bringing the party to punishment, if he were guilty."

Mingay and Garrow were now to have shewn cause; but The Court were of opinion, That they were bound, by the cases of Chambers v. Robinson and Jones v. Gwynn, to make the Rule absolute.

(a) 1 Str. 691.

(b) Jones v. Gwynn, Gilb. 185. and 10 Mod. 148, 214.

Thursday,
May 26th.

The future halfpay of an officer is not assignable. [1 H. Bl.627. 8 T. R. 413.]

LIDDERDALE against The Duke of MONTROSE and Lord MULGRAVE, Paymasters General of the Army.

THIS

HIS was an action on the case; wherein the declaration stated, That the plaintiff before and on the 24th June 1788, and from thence until and at the time of making the promise thereinafter next mentioned, was, and from thence until such time as last mentioned had been and still was, a reduced lieutenant of his majesty's land forces, viz. a reduced lieutenant in Major Commandant Elford's then late corps of infantry; and as such lieutenant, he the said plaintiff was for and during the time aforesaid, entitled to a certain provision or allowance, commonly called Half-Pay, viz. a certain provision or allowance, at and after the rate of 2s. and 4d. per day, payable half-yearly; subject nevertheless to a certain deduction thereupon, viz. a deduction of 6d. in the pound on the amount thereof, of which said provision or allowance a certain sum of money, to wit, 831. before the making of the promise, &c. thereafter next mentioned, to wit, on 24th June 1790, became and was due and payable to the plaintiff, as such lieutenant as aforesaid, for two years then elapsed; and which said sum of 831. from thence, until, and at the time of making the promise, &c. thereafter mentioned, was in arrear and unpaid to the plaintiff, to wit, at, &c. It further stated, That before the making of the promise, &c. thereafter next mentioned, and during the said two years, divers large sums of money had been duly

and