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RExv.Braoke. tice may lrave obtained of granțing a super sedeas in baila

able offences, the legality of which is very doubtful; yete at any rate, it cannot hold in a case of this fort, where the party is convicted in the first instance as a rogue and vagabond, and committed in execution ; for there he is clearly not bailable: this, therefore, was gross misbehaviour in the defendants, which cannot be imputed to mistake or ignorance of the law; and though they have denied generally that they acted from any interested motive in this business, yet that is not sufficient ; for if they acted even from passion; or from opposition, that is equally corrupt as if they acted from pecuniary considerations.-BULLER, Justice, after cominenting upon the circumstances disclosed by the affidavits, and discriminating between the degrees of guilt of the different defendants, was clearly of opinion, that the charge of corruption was brought home to the two defendants, Brooke and Robinson, againit wliom an information ought to go; but that as liiliams had not interfered in the commencement of the business, and had only adopted the opinion of the other two defendants upon the construction of the act, the rule thould be discharged as againft him ; especially as the ends of public justice would be equally answered by granting the information against the other two.n He then observed, as to the construction of the vagrant act, that he had no doubt upon the subject, that the commitments of the justice in this case were in execation; confequently the parties could not be bailed, notwithstanding that the statute had given a right of appeal against the conviction to the next feflions. It is said, that it is itrange that the party should suffer the punishment while the appeal is pending: but we are to.consider it like the case put at the bar of a writ of error, which does not suiperd the execution of a judgment which it is brought to reverse. It would be ablurd to put a contrary construction upon this act of parliament; for if the appeal. were to put an end to the imprisonment, by entitling the party to be bailed, the consequence would be, that although the conviction were affirmed, the party would escape from punishment, and laugh at justice; for the imprisonment is to run from the time of the conviction; and here the parties having been sentenced to be imprisoned for fourteen days, the time would be expired before the appeal was determined. The defendants have also acted wrong in another particular; for by the 26th fection it is enacted, “That persons aggrieved may ap“ peal to the next fcffions, giving reasonable notice

thereof." But it does not appear in this case that any notice was given either to the prosecutor or to the com

mitting

333.

mitting magiftrate, when the defendants admitted the fe- Rexy.Brookr. veral parties to bail ; and they could not have mistaken as to whom notice ought to have been given. ---Grose, Fuftice. It must be shewn, in these cases, that the magirtrates against whom informations are prayed, have acted illegally and corruptly. As to the illegality of the proceedings of thefe defendants, there can be no doubt. In the course of the latt Term (a), a difficulty arose in my (a) Vide the case mind from the obscure penning of this act of parliament. of Rex v. Spar, I doubted at first, Whether a party committed by a má- row and Anogiftrate upon the 7th section (b) was committed in execu- ther, 2. Term tion? But I have had time to consider of it since; and I

Rep. 198.

(6) Ante, page am now clearly of opinion, that it is a commitment in execution: but whether fo or not, I am clearly of opinion that the party is not bailable; and so it seemed to me last Term. But as this queftion miglit have been a matter of doubt or difficulty to the defendants, if they had acted merely from an error in judgment, they ought not to be answerable in so criminal proceeding as an information. But there are other acts of illegality imputed to them befides that; one of which is, that they took upon themfelves to bail the several persons who had been committed without the knowledge or concurrence of the committing magistrate, which they are expressly forbidden to do by the 32d fection; and as they justify themselves upon the conitruction of the act, they cannot be supposed to be ignorant of this clause, After condemning the granting of the fuper fedeas, he went into a detail of the facts as they appeared upon the affidavits; from whence he inferred, that corrupt motives were clearly to be imputed to the defendants Brooke and Robinson ; and agreed, that as to Williams the rule should be discharged.-Rule absolute against the defendants Brooke and Robinson. Pigott The Court, on then moved the Court to compel the prosecutors to give formation, will security for the costs, in case the defendants should be ac- not order fecuquitted, over and above the recognizance in 201. re- rity for costs, quired by the 4. & 5. Will. & Mary, c. 18. f: 2, according &c, to what the Court had thrown out in the case of The King againft Filewood and Another (c). But the Court refufcd (c) 2. Term the application, saying, that if any alteration were necefsary, it had better be done by legislative authority than by an order of the Court,

426. Rex v. Rhodes, Easter Ferm, 31. Gea. 3. MSS. A commitment The defendant being brought up by habeas corpus,

on 17. Geo. 2. it appeared that he had been committed to the house commitment in

C. 5. must be a of corre&tion in Middlesex under the following warrant : cxccution, and

is therefore bad unless it be preceded by a convidimo

Rep. 145.

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Ruxv.BR00x2. “ Receive into your custody the body of Francis Rhades

“ herewith sent you, brought before me J. Spiller, esq.one
“ of his majesty's justices of the peace, &c. by 7. Armstrong,
“ constable, and charged before me the said justice upon the
“ oath of Mary Green for being a rogue and vagabond within
“ the intentand meaning of an act entitled, &c.[17. Geo.2.);
" for that the said Francis Rhodes on the 25th of March
“last at, &c. did unlawfully use a certain fubtle craft to
“ deceive and impofe upon the said Mary Green, by pre-
“tending to tell the fortune of the said Mary Green and
“ her husband James Green, and did then and there fore-
“ tell events which should happen to and concern her
“ husband James Green, contrary to the statute, &c.; him
“ the said Francis Rhodes therefore safely keep in your
“custody until the next general feflions of the peace ta be bolden
for the said county, then and there to be further dealt with ac-
cording to law; and for fo doing, &c.”—ERSKINE
and GARROW moved to discharge the defendant out of
custody, contending, that the warrant of commitment,
which purported to be a conviction, was void, because
Rhodes was only charged with, but not convicted of the of-
ence; and insomuch differs from Rex v. Brooke : and also,
because it did not pursue the words of the statute in com-
mitting him till the next sessions, or until discharged by
due course of law; thereby depriving him of the advan-
tage of being discharged by two magistrates, as the act
directs.-BEARCROFT and the COMMON SER JEANT,
contra, admitted this was not a commitment in execution,
because the defendant was not convicted; but con-
tended, that the justice had his option either to convict
or commit as he has now done ; and that in this case
he must give bail for his appearance.—THE Court,
after pointing out the inaccuracy of this statute, decided,
that as from the conftruction of it there must be a pre-
vious conviction to warrant the fentence, and that not
having taken place here, the present warrant cannot be
commitment in execution, and is therefore bad: and it is
also bad, because it only commits until the next sessions,
without adding, or discharged by due course of law (a).

(a) As this Case will be speedily to it there rather than depend on the published in the Term Reports more above, which is only a locke note at large, the reader is degred to refer taken by the Editor.

2

CHAP CHAPTER THE SEVENTH.

OF THE RELIEF, AND ORDERING OF THE POOR.

I. The flatutes.
Jl. For what' and by whom an order may be made. .
III. Reimbursing constabies, &c.
IV. Relieving families of militia men.

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I. The statutes. 427 43.

Eliz. C. 2. f. 1. “ The churchwardens The overseers of

“ and overseers of every parish, or the greater every pariffin part of them, shall take order from time to time, by fent of two jur“ and with the consent of two or more justices of the tices, shall take

peace in the same county, whereof one to be of the order for the

quorum (a), dwelling in or near the same parish or di- relief of the " vision where the same parish doth lie, for setting to poor. “ work the children of all such whose parents shall not

by the said church wardens and overseers, or the greater

part of them, be thought able to keep and maintain Their children: AND ALSO, for setting to work all such

persons married or unmarried, having no means to " maintain them, and use no ordinary and daily trade of “ life to get their living by: AND ALSO, to raise weekly or " otherwise (by taxation ofevery inhabitant, parfon, vicar, " and other and of every occupier of lands, houses, tithes “ impropriate, propriation of tithes, coal mines, or fale“ able underwoods in the said parish, in such competent " sums of money, as they fhall think fit) a convenient “ stock of flax, hemp, wool, thread iron, and other ne

cessary ware and stuff, to set the poor on work: AND

ALSO, competent lums of money for and towards the “ neceffary relief of the lame, impotent, old, blind, and “ fuch other among them being poor and not able to “ work: AND ALSO, for the putting out such children to “ be apprentices, to be gathered out of the same parish,

according to the ability of the same parish ; and to da “ and execute all other things as well for the disposing “ of the said stock as otherwise concerning the premises “ as to them shall seem convenient." 428. By 43. Eliz. c. 2. f.2. “ The said churchwardens The overseers

and churchwaru and overseers shall meet together at least once every dens Thall meet “ month in the church of the said parish, upon the Sun- once a month to

day in the afternoon after divine service, there to con- consult respec“ fider of some good course to be taken, and of some ting the relief

and orderinger “ meet order to be set down in the premises, &c.

the poora (a) By 26. Gco. 2. C. 27. “ No " Ging that one or more of such jus« aá or order of two or more jur. " cices are of the quorum." " tices to be vaeated for not expref

24

429. By

Poor people re. 429. By 43. Eliz. C. 2. f. 4. “ It shall be lawful for fusing to work

" the said justices of the peace, or any one of them, to may be sent to the house of

“ send to the house of correction of common gaol such correction.

“ as shall not employ themselves to work, being ap

pointed thereunto as aforesaid,”

or.

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The churchwar.

430. By 43. Eliz. C. 2. f. 5. ” To the intent that nedens and over

cessary places of habitation may more conveniently be (eers may, upon 66 agreement with provided for such poor impotent people, it shall and the lord of the may be lawful for the faid churchwardens and overManor, erect

“ fcers, or the greater part of them, by the leave of the habitations for “ lord or lords of the inänor, whereof any waste the reception of " common within their parish is or shall be parcel, and,

upon agreement before with him or them made in. " writing, under the hands and feals of the said lord or “ lords, or otherwise, according to any order to be fet “ down by the justices of the peace of the faid county at “ their general quarter-feffions, or the greater part

of " them, by the like leave and agreement of the said lord “ or lords, in writing under his or their hands and seals, ta. “ erect, build, and set up in fit and convenient places of vs habitation, in such waste or common, at the general “ charges of the parish, or otherwise of the hundred or.

“ county, as aforesaid, to be taxed, rated, and gathered in (a) This statute " manner before expressed, convenient houtes of dwelis repealed by

“ ling for the said impotent poor; and also to place in. 15.Geo:3.C.12: “ mates, or more families than one, in one cottage or as tending to lay « boufe, notwithstanding the 31. Eliz. c.7. (a); which cotthe industrious

tages and places for ininates shall not at any time after ficulty in pro- “ be used or employed to or for any other habitation but çuring hahita

orily for the impotent and poor of the said parish.” cions, The overseers, 431. By 3. Car, I. C. 4. f. 22. "The churchwardens &c. may, with " and overleers of the poor mentioned in the 43. Eliz.. consent of the

c. 2. may, by and with the consent of two or more. justices,establish

“ justices of the peace (whereof one to be of the qucru 27) trades for the employment of

" within their relpective limits, wherein shall be more the poor, “ justices than one, and where no more shall be than

4 one, with the aflent of that one juftice of the peace, fet “ up, use, and occupy, any trade, mystery, or occupation, “ only for the setting on work and better relief of the poor of the parish, town, or place, of or within which “ they shall be churchwardens or ove;fecrs of the poor,

any former ftatute to the contrary notwithitanding." The justices at 432. By 19. Car. 2. C. 4. f. 1. “ Whereas there is not yet feffions may or “ any fufficient provision made for the relief and setting der a fork of matcrials to be provided for setting poor prisoners on work.

on

poor under dif. “

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