return, it only appears that certain facts are sworn to by two parties before the justice, and he makes an order; and then it appearing to the justice on the oath of one of the original complainants that the party has not obeyed the order, for that offence the justice orders him to be imprisoned. There is no hearing of both parties; no adjudication or conviction. Secondly, it is clear from the whole of the fourteenth section, that it was meant to apply to cases where the pawnbroker wilfully and perversely withheld, and refused to account for that which it was in his power to deliver up: but here, it appears by the order that the pawnbroker states the gun to have been destroyed by fire; and upon that the justice finds, on consideration, that the gun is lost, and orders satisfaction to be made. Besides, according to this clause, before the order is made, there should be a tender of the principal money and profit by the borrower to the lender before the justice; and this does not appear by the present order to have taken place. Nor is the return supported by the twenty-fourth section. (a) *203] *That enables the justice to award a reasonable satisfaction, if the goods have been improperly sold, or have been embezzled or lost, or are become or have been rendered of less value than they were at the time of pawning, by the default, neglect, or wilful misbehaviour of the person with whom they were pawned. It is clear, that these last words extend to all the cases put in the preceding part of the sentence; confining them to the single case of deterioration in value, would be giving a forced construction in order to impose a liability not known at common law. And the satisfaction to be awarded, for which one *204] general rule is prescribed, is to be in respect thereof or of such damage; thus applying to every case before mentioned. In the present order no default is charged. And the twenty-fourth section, though particular in its provisions, gives no power to commit. Nor can it be coupled with the fourteenth, in order to give that power. If they could be so construed together, a party might proceed, under section 14, to recover satisfaction for goods expressly alleged by him to be lost; which is contrary to the whole tenor of that section. Besides, under section 24, the loss should be proved on oath, and the order does not allege that to have been done.

Campbell, contrà. The act is certainly obscure, but sections 14 and 24, taken together, support this order. The question is, whether a pawnbroker, in consideration of the high interest he receives, is not liable to the parties who deposit goods with him, if they are lost, though by accidental fire. [TAUNTON,

(a) Sect. 24. "And be it further enacted, That if, in the course of any proceedings before any justice or justices of the peace, in pursuance of or under this act, it shall appear, or be proved to the satisfaction of the justice or justices upon oath or solemn affirmation, that any of the goods and chattels pawned as aforesaid have been sold before the time allowed by this act, or otherwise than according to the directions of this act, or have been embezzled or lost, or are become or have been rendered of less value than the same were at the time of pawning or pledging thereof, by or through the default, neglect, or wilful misbehaviour of the person or persons with whom the same were so pledged or pawned, his, her, or their executors, administrators, or assigns, agents or servants, then and in any such case it shall be lawful for every such justice and justices, and he and they is and are hereby required to allow and award a reasonable satisfaction to the owner or owners of such goods or chattels in respect thereof, or of such damage." And if the sum awarded fall short of the principal and profit due to the pawnbroker, it shall be deducted therefrom: and where the goods pawned shall have been damaged, "it shall be sufficient for the pawner, his executors, &c., to pay or tender the money due upon the balance, after deducting, out of the principal and profit as aforesaid, for the goods or chattels pawned, such reasonable satisfaction in respect to such damage as any such justice or justices shall order or award; and upon so doing the justice or justices shall proceed as if the pawner or pawners, his, her, or their executors, administrators, or assigns, had paid or tendered the whole money due for the principal and profit aforesaid." And if the satisfaction awarded equal or exceed the principal and profit aforesaid, the pawnbroker shall deliver the goods to the owner without being paid anything for such principal or profit, and shall pay the excess, if any, to the person entitled thereto, under the penalty of 101., to be recovered as after-mentioned; that is, (under sect. 26,) by dis

tress and sale.

VOL. XXIV.-7

[*205

J. The contrary appears from Coggs v. Bernard, 2 Ld. Raym. 916.] That is at common law. But here a statutable liability may be imposed, on account of the high premium received, the necessity of protection to the pawner, and the power which a pawnee now has of securing himself by insurance. The order in this case was not bad for want of a conviction. Rex v. Rhodes, 4 T. R. 220,* was a case on the vagrant act, and a conviction was necessary there; but an order for payment of money may be made without a conviction. The fourteenth section requires a summons and examination of the parties on oath only in the first stage of the proceeding; if the order then made is not *complied with, nothing further is necessary, but the justice is authorized and required to commit. This is in the nature of a ca. sa. It is objected that the order does not show any tender of principal and profit before the justice. That is necessary where the proceeding is on section 14; it may, however, be admitted that the present order cannot be grounded on that clause alone, but proceeds on section 24, coupled with it. The first empowers the justice to order that the goods shall be delivered up; the second directs what shall be done if they are not forthcoming, or have been lessoned in value. [PARKE, J. If it appear on oath that they have been embezzled, lost, or damaged.] The words are, "if it shall appear, or be proved on oath." The justice may state it at his own peril, without oath made, otherwise the alternative, "if it appear," would be superfluous. The words "by or through the default," &c., apply only to the immediately preceding clause, if the goods "are become, or have been rendered, of less value." In the case of pledges improperly sold, or embezzled, such words would be an unnecessary addition. [PATTESON, J. The words "satisfaction in respect thereof, or of such damage," must extend to all the cases; otherwise what compensation is provided, in case of loss for instance?] The fourteenth and twenty-fourth sections must be taken together: there is otherwise no effectual remedy where the goods are lost, embezzled, or sold. The pawnee, under the two sections, may be ordered to deliver up the goods, or, if lost, &c., make satisfaction for them; and in every case he may be committed in default. [PATTESON, J. Sect. 14 speaks of the article "continuing redeemable."] That only means, if the time for redemption has not expired.

[*206

*DENMAN, C. J. No subject of the king is to be restrained of his liberty without a good legal warrant for his imprisonment. Here no such warrant is shown. Many objections have been taken to the commitment, and I am not inclined to say that any one of them is bad. But it is sufficient to select one which is clearly good, namely, that by the twenty-fourth section no power of commitment is given, assuming that the loss here in question was of the kind contemplated in that clause. It would require strong proof to convince me that the same power was meant to be given in the cases there mentioned as in that of the contumacious detention contemplated by section 14. The objects of the two clauses are very different; and, at any rate, we are not to imply a right to take away liberty. I have the greatest doubt whether the magistrate, in this case, formed a right conclusion, when he held that the goods were lost within the meaning of the twenty-fourth section; but it is unnecessary to decide that, because, if his finding was right, still the power of commitment is not given in such a case. The party must, therefore, be discharged.

PARKE, J. I am of the same opinion. It is unnecessary to enter into any other objection than that which my Lord has adverted to, namely, that, under the twenty-fourth section, we cannot see clearly that any power is given to justices to commit in default of payment for goods that have been lost. We are not at liberty to import the power of commitment from the fourteenth section into the twenty-fourth. In the case provided for by the former section, the party has it in his power to deliver up the goods; it may be reasonable there *that the justice should have authority to commit, and perhaps without first convicting. But it is very different to say that, where goods have been lost, the party failing to make satisfaction shall be immediately committed.

[*207

We ought, at least, to see by very clear words, that such a power is given before we enforce it. I desire not to be considered as assenting to the doctrine stated in argument, that a pawnbroker is liable under the statute for the loss of a pledge by accidental fire.

TAUNTON J. I am also of opinion, that this warrant cannot be supported; and that the power of imprisonment, given by the fourteenth section of this act is not to be carried on to the twenty-fourth. I have also a strong opinion, that the words in the latter section, "by or through the default, neglect, or wilful misbehaviour of the person with whom the same were so pledged or pawned," must refer to the word "lost;" that a loss, therefore, is not within the meaning of the section, unless it happen by the default of the pawnbroker; and, consequently, that a loss by accidental fire is not contemplated. The language of Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym. 916, shews what the common law would be on the subject, and affords a key to the intention of the legislature in this statute. I do not think it was intended by the act to extend the liability of pawnbrokers, in this respect, beyond what it was at common law. But I only throw out this as my present opinion; not meaning to lay it down judicially, or to be bound by it hereafter.

PATTESON, J. I am perfectly satisfied that the twenty-fourth section does *208] not authorize the justice to commit; *and I think there is great weight in the other objections. We cannot incorporate the two sections, and take it by implication that a power of imprisonment is given by the latter as well as by the first. It seems to me clear, that section 24, was not intended to give the powers of section 14, in cases of loss; because the former section provides, that where the goods are damaged, it shall be sufficient for the pawner to pay the amount of principal and profit, deducting such reasonable satisfaction in respect of damage as the justice shall award; and upon so doing the justice shall proceed as if the pawner had paid or tendered the whole money due for principal and profit but in the other cases under that clause the provisions are different. Section 14, contemplates an alternative in the party's power, to make satisfaction or to deliver the goods; and the power of committal seems confined to the case of a wilful refusal to do either one or the other. I am consequently of opinion, that this warrant is bad.

The party was therefore discharged out of custody.

The KING . The Inhabitants of PADSTOW. Nov. 17.

On the trial of an appeal against an order of removal, the respondents having proved, by parol, the renting of two fields in the appellant parish, at 157. a year, and an occupation and payment of the rent for a whole year, the appellants then gave evidence, that the contract for taking the two fields was reduced into writing: Held, that it lay upon the latter to produce the written contract.

On appeal against an order of two justices, whereby Mary Ann Old and her children were removed from the parish of Little Petherick, in the county of Cornwall, to the parish of Padstow in the same *county, the sessions confirmed the order, subject to the opinion of this Court on the following case :

*209]

In support of the order of removal the respondent parish (Little Petherick), proved by parol evidence that, in the year 1828, the pauper's husband, Martin Old, who is now living in America, rented two fields in the parish of Padstow, of J. A. Corkhill, at 157. a year; that he occupied and paid the rent agreed on for the same for two years, viz., from Michaelmas 1828 to Michaelmas 1830; and that, during the first year of such tenancy and occupation, he resided in Padstow forty days and upwards. For the appellant parish a witness was called,

who stated that he had been a clerk of Corkhill (who has since become a bankrupt); that he was present in 1828 when Martin Old took the fields in question of his master, and that the conditions of taking were reduced into writing, and signed by the parties on unstamped paper. Upon this evidence, the court of quarter sessions confirmed the order, subject to the opinion of this court, whether they were justified in so doing, or whether, erasing the evidence previously given on the part of the respondents, and rescinding the conclusion which arose from that evidence, they ought to have quashed the order of removal.

[*210

Coleridge in support of the order of sessions. The respondents having proved, by parol, a taking of the premises in 1828, and it then appearing, from the appellant's witnesses, that there had been an agreement in writing, it lay upon the latter to produce that agreement, Stevens v. Pinney, 8 Taunt. 327, Rex v. Rawden, 8 B. & C. 708. The rule upon the subject is thus laid down by Tindal, C. J., in Fielder v. Ray,* 6 Bingh. 335: "If it appear by the testimony of the plaintiff's witness, (that there is a contract in writing,) the absence of the writing is an inherent defect in his case, which it is incumbent on him to get over; whereas, if it appears from the defendant's witnesses, it is an objection which the defendant must substantiate by the production of the instrument in the regular way: otherwise, this inconvenience might follow,that the plaintiff might, on a mere assertion of the defendant, be nonsuited for the non-production of a written instrument, which, if it had been produced, might turn out not to apply to the contract in question." [DENMAN, C. J. The rule undoubtedly is, that where a party has made out a prima facie case, and the opposite party attempts to cut it down by a written instrument, he must prove it.]

be

Follett contrà. In order to gain a settlement by renting a tenement, the 6 G. 4, c. 57, requires that it should be hired for a year, at a rent of 107. This statute, therefore, renders it necessary to prove the contract itself; and if that so, and it appear in the course of the case that there is a contract in writing, the party who seeks to establish the settlement must prove that contract. [PARKE, J. The rule is very clearly settled, that if it comes out on the crossexamination of the plaintiff's witnesses that there is a written instrument, he must produce it; but if he makes out a prima facie case without shewing that there was any written contract, the other party, if he relies on that written contract, must produce it.]

PER CURIAM. The order of sessions must be confirmed.

Order of sessions confirmed.

*The KING v. The Inhabitants of MATTERSEY. Nov. 17. [*211

If a woman pregnant of a bastard be fraudulently removed by parish officers, for the purpose of preventing the bastard from becoming chargeable to their parish, the child is settled in the parish from which the mother was so removed; but not if the mother be so fraudulently removed by a parishioner liable to pay rates, not being a parish officer.

ON appeal against an order of two justices, whereby William Green Otter was removed from the parish of Kettering, in the county of Northampton, to the parish of Mattersey, in the county of Nottingham, the sessions confirmed the order, subject to the opinion of this Court on the following case :

Elizabeth Otter, the mother of the pauper, lived with one William Green, in the parish of Mattersey, for eight years, in the course of which time she was delivered of two children, both illegitimate, of whom the said William Green was the putative father. The pauper W. G. Otter was one of them, and was born at a place known by the name of the Lodge-on-the-Wolds, an extra-parochial place, not maintaining its own poor. The mother of the pauper was sent

there by the said William Green, her master, when she was far advanced in her pregnancy, in order to prevent the said W. G. Otter from being born in the appellant parish. The said W. Green was proprietor and occupier of a considerable quantity of land in the said parish. He had never, in the presence or to the knowledge of the said Elizabeth Otter, spoken to the parish officers on the subject of removing her to the Lodge-on-the-Wolds for the purpose aforesaid. She returned to the house and service of the said William Green as soon as she was sufficiently recovered, namely, in six weeks after her confinement, the *212] expenses of which, and also of her maintenance *during her stay at the Lodge-on-the-Wolds, were paid by the said William Green. Miller in support of the order of sessions. If the child had been born in a parish under the circumstances stated in this case, the settlement would be in the parish from which the woman was sent; and, secondly, if that be so, the place of birth being extra-parochial makes no difference. The general rule is, that a bastard is settled in the place of its birth. There are some exceptions to that rule, and one is where a woman with child of a bastard is removed out of one parish to another by fraud or collusion; and then the child, wherever it is born, is settled in the parish from which the mother has been collusively removed. [DENMAN, C. J. That is where the fraud or collusion is by the parish officers; here it was the fraud of a private individual.] In Tewksbury v. Twyning, Bulst. 349, it is stated only that the woman being with child, by practice was conveyed out of the parish of Twyning; it does not appear that it was by the practice of the officers of that parish. It is sufficient if the practice be by any of the parties who would be burdened by the child becoming chargeable to the parish from which the mother is removed. In Rex v. St. Nicholas, Leicester, 2 B. & C. 891, Bayley, J. states it as an exception to the general rule that an illegitimate child is settled in the parish where it is born, if the mother of the child is removed out of one parish into another through the fraud or collusion of the officers. But that was not the point there decided; and there is no authority to shew that the fraud must be by the parish officers. [PARKE, J. Mr. Nolan, *213] vol. i. p. 324, states, that the removal* must be by the fraud or collusion of the parish officers; and for that cites Tewksbury v. Twyning, 2 Bulst. 349, and Masters v. Child, 3 Salk. 66. Masters v. Child does not support that position.

Waddington (and Park was with him), contrà, was stopped by the Court. DENMAN, C. J. The general rule is, that an illegitimate child is settled in the parish in which it is born. Unless this case, therefore, comes within some of the exceptions to that rule, W. J. Otter would be settled in the place of his birth, if it were not extra-parochial, and certainly not in Mattersey. It is said, that he is settled in Matterscy, because the mother, when pregnant, was fraudu lently removed from that parish by a parishioner liable to pay rates there. But I think it may be collected from Tewksbury v. Twyning, 2 Bulst. 349, and Masters v. Child, 3 Salk. 66, that in order to fix the settlement of an illegitimate child in the parish from which the mother has been fraudulently removed, the fraudulent removal must have been by the parish officers. Here that was not so. No case has gone so far as to show that if the fraud be by an individual, not a parish officer, the child shall be settled in the parish where the fraud was committed.

PARKE, J., concurred.

TAUNTON, J. It does not appear by the statement in the case, that the mother of the pauper was settled in the parish of Mattersey. It is merely said that she lived there. In Masters v. Child, 3 Salk. 66, it is stated that if a *214] woman being with child of a bastard, and settled in one *parish, is persuaded by the parish officers to go into another, and there to be delivered, this fraud will make the parish chargeable where the mother was settled, though the child was not born there. But if the woman accidentally come into a parish, and is persuaded by some of the parishioners to go into another, which she doth,