Abbildungen der Seite
PDF
EPUB

In another case where the putative having the same quashed on the ground father swore that on the day before the that the bastardy summons had not been service of the summons, having reason served on the defendant, the putative to anticipate further annoyance from father, nor left “at his last place of the mother of the bastard, he deter- abode," as required by Ø 4 of 35 & 36 Vict., mined to leave his father's residence ch.65 (the Bastardly Laws Amendment and obtain employment in a different Act of 1872). The defendant made an part of the country, and he accordingly, affidavit in support of the rule, in which on that day, lett his father's residence he said that in September he left his and ceased altogether to reside there, father's house, as he had found emand shortly afterwards went to reside ployment with a farmer at Gloucester; with one L in Bedfordshire, and as- that he had no intention of returning, sisted him in his farm there, and and that from the 26th of September had not when he left, nor since, had until the 12th of May he had lived any intention of returning to reside with continuously in lodgings where he was his father, and that he did not become employed, and that he knew nothing of aware of the second summons, until the third summons until November after the date of the hearing; and it ap- 16th, when his sister sent him a newspeared that the summons was left at paper containing a report of the case. the house of the father of the atlant, The rule was discharged in consequence with whom he had always resided up to of the disagreement of the court. the day before the said service, the STEPHEN, J, gave his opinion as folcourt held the service good, LORD lows: "In this case I am sorry to say CAMPBELL, C. J., saying: “I am of that the court is divided." The act of opinion that the summons was served parliament says that the summons is to at the last place of abode of the putative be left at the defendant's "last place of father.” Queen z'. Higham, 26 L. J. M. abode." The meaning of the words C. 16. See also Queen v. Davis, 22 "last place of abode" was much disL. J. M. C. 143.

cussed in Reg. 1. Evans (ubi supra), The different views taken in these and the court there held that the sumcases caused a difference of opinion mons must be left at the defendant's among the judges in the case of Reg. v. present place of abode, if he has any at De Winton. In this case a bastardy the time of the service; at the last place summons was issued against the de- of his abode if he has none. In that case fendant, who had for some years been the service was at the house where the living at his father's house, the detendant formerly lodged, but where he putative father. This summons and a did not lodge at the time of the service, second one were dismissed for certain and it appeared that the summons did defects. On October Sth, a third sum- not reach him until after the day on mons was taken out and served at the which the order was made, and it was house of the defendant's father, who at held that the service was not at the "last that time stated to the constable who place of abode.” Now, in the present served the warrant that his son had case, it seems to me that the uncontragone away and that he did not know dicted affidavit is that he resided with his where he was. This last summons was father, then went away and resided at heard on November 5th, and an order Gloucester, and that he did not return, otathiliation and for the payment of two and had no intention of returning. It shillings and sixpence a week to the appears to me that, according to the complainant was made against the de- authority of Reg. v. Evans (ubi supra), fendant. On December roth a warrant the defendant's last place of abode was was issued against the defendant charg. at Gloucester, where he was then living. ing him with perjury committed on the The case of Reg. v. Higham (ubi supra) hearing of the first summons, in swear- decides the other way. These cases ing that he was not the father of the directly contradict each other. Reg. child. On May 12th, 1888, being one v. Evans, gives a perfectly plain exyear and one day after the birth of the position of the statute, but Reg. v. child, the defendant surrendered to the Higham does not, to my mind, do so. I warrant. From October 8th, 1887, to therefore adopt Reg. v. Evans. At the May 12th, 1888, the complainant was same time, however, I wish to say that unable to discover where the defendant the view taken by my brother Manisty was. The defendant took a rule for a is more in accordance with justice in certiorari to remove the bastardy order this particular case. But I look at into the high court for the purpose of what the act of parliament says, and

as

what this particular case decides, and I hold the summons here was left at the come to the conclusion that this rule last place of abode of the defendant." ought to be made absolute." MANISTY, Reg. 7). De Winton, 59 L. I. N. S. 382; J., who favored the discharging of the S. c., 16 Cox Crim. Cas. 459. See also rule, said: “I am very sorry to be com

Reg. 7. Lee, 52 J. P. 344. peiled to differ from my learned brother, Last Date.-See DATE, vol. 5, p. 77; but I follow the more recent case of Bement v. Trenton, L. & M. Co., 32 Reg. z'. Higham. I think that case is N. J. L., 515. founded on common sense and also on Since Last Entering the Service.justice. No doubt this Ø 4 of the act of Upon a claim for pay made by an 35 & 36 Vict., ch. 65, was intended to officer in the navy under the provisions provide, as it seems to me, for the serv- of the act of March 3rd, 1883, ch. 97, 22 ice of the summons where a person has St. 473, as follows: "And all officers of gone away, and has at the time no the navy shall be credited with the known place of abode. The section actual time they may have served as does not say so in words, but the object officers or enlisted men in the regular of the statute is clearly so. To evade or volunteer army or navy, or both, the statute the defendant went away, and shall receive all the benefits of and kept himself concealed, and the such actual service in all respects in the question is whether a person does not same manner as it all said service had evade the statute who leaves his father's been continuous, and in the regular house and goes to some distant place, navy, in the lowest grade having graduknowing that a charge was made against ated pay held by such officer since him, because he knew that although last entering the service: provided, one summons was dismissed, another that nothing in this clause shall be so summons would be taken out, and his construed as to authorize any change relations knew well where to find him, in the dates of commission or in the as they knew where to send the news- relative rank of such officers: provided paper, but they did not know where to further, that nothing herein contained send the summons. This was done to shall be so construed as to give any adevade the statute. But it is unnecessary ditional pay to any such officer during to base my judgment on this. I base the time of his service in the volunteer my judgment on the case of Reg. army or navy," it appeared that the ?'. Higham.

I quite agree with claimant was an officer in the regular the recent case of Reg. v. Lee, in navy and had served continuously which HAWKINS, J., adopts the decision therein since 1860. The court of claims in Reg. v. Higham, saving that that held, that the claimant was entitled was a strong case. In Reg. v. Lee, the under the above act, and upon appeal mother was delivered of the child on by the United States this judgment the 18th of April, 1887, and she obtained was affirmed by the supreme court, a summons against Lee, the alleged puta- BLATCHFORD, J., saying: “It is contive father, which was served on the 18th tended on the part of the United States of May, 1987, at the house of a baker at that the act of March 3rd, 1883, applies Sunbury. Lee had been in the service to officers serving in the regular navy of the baker, and resided there from the only when their term of service has not 25th of September, 1886, to the 20th of been continuous. The view is urged April, 1887. When a constable left the that the expression “since last entering summons, the baker told him that Lee the service” implies that the officer, to had left that place, and his place of resi- be entitled to the benefit of the statute, dence was not known, but that Lee had must have entered the service more called at his place on the 14th of May than once. But we think that this is to take away some things he had leit an overstrained interpretation. Mullan there. Lee stated in his affidavit that entered the service once. It was his he had left Sunbury on the 20th of last entry as well as his first entry. April to better himself, that he went to Where an officer has entered the service Southampton and remained there till twice, the second entry is the last entry, the 19th of May, when he got a situa- and that entry is to be taken in applytion in a ship and sailed for the Westing the statute to his case; but where Indies. Under these circumstances it an officer has entered the service but was there held that the service was once, that entry is to be taken as the valid, as the summons had been left at last entry, within the meaning of the the last place of abode.

I think we

statute. So, too, the expression “as if may fairly act upon these cases, and all said service had been continuous" is not to be held to confine the benefits of dial law, and ought to be so construed the statute to a service which has been as to extend to the whole mischiet innoncontinuous The expression is tended to be remedied. If we were to satisfied by considering it as an exten- hold the words 'ast examination to sion of the benefits of the statute to mean only the last day or time of exinterrupted noncontinuous service, and amination, a great proportion of the by crediting the otticer with the actual mischief recited in the statute would time of such service, as if it had been not be remedied. For, it is obvious continuous service. Otherwise the that the examination of the bankrupt statute cannot be carried out. It says must frequently continue for several that “all officers of the navy shall be days, and it may be impossible, in many credited with the actual time they may instances, for the commissioners to have served as officers or enlisted men know beforehand what may be the last in the regular or volunteer army or day of examination. Supposing the navy or both;" and the benefits of such bankrupt not to be in custody, it is clear actual service are to be received where the commissioners might bring him bethe service has been continuous in the fore them as often as they thought necregular navy.

United States t'. Mul- essary for the purposes of examination, lan, 8 Supreme Ct. Rep. (U. S.) 79. and there can be no reason why they

Last Examination.—In an action of should not do so where the bankrupt is debt brought against the marshal of the in custody in executions. By the ; Marshalsea prison for the escape of one Geo. II, ch. 30, § 6, it is enacted: That while committed to his custody in ex- in case the bankrupt is in execution, the ecution, on the ground that he had commissioners are to attend him in brought White before the commission prison, and to take his discovery as in ers in bankruptcy for examination un- other cases, and the assignees are emder the act of 19 Geo. III, ch. 121, Ø 13, powered to appoint persons to attend it appeared that White did not pass his the bankrupt, being in custody as atorelast examination at that time, but after said, and to produce to him his books, attending the commissioners, he was in order to prepare his last discovery carried back to prison by the defendant, and examination, a copy of which the and continued in custody from that bankrupt is to deliver to the assignees time on, except when he was carried ten days at least before such last exambefore the examiners for further exami- ination. It is quite clear that in this nation under warrant at various times, statute the word examination, being until he passed his last examination. It coupled with the word discotery, was contended that the commissioners means that discovery and examination in bankruptcy had no authority to bring which may become final by a full and the bankrupt before them, except when satisfactory discovery and disclosure of he was in custody at the time of his last his estate. The words last examinaexamination, and consequently the fact tion seem to have been copied from of his being out of the rules of the this statute into the 49 Geo. Ill, ch. 121, prison at an earlier date, constituted an $ 3, and these provisions being in pari escape, for which the defendant was materia ought to receive a similar conliable. The court held that there was struction. I am, therefore, of opinion no escape, and gave judgment for the that the words last examination mean defendant, A BBOTT, C. J., saying: "The that examination made from time to question in this case depends entirely time, which is ultimately to be the final on the construction of the 49 Geo. III, discovery of the bankrupt's estate and ch. 121, $ 13. That section recites that effects. That being so, the commissiongreat inconveniences had arisen from ers in this case were authorized to have the necessity which then existed of the the bankrupt brought before them on attendance of commissioners of bank- the occasion in question.” Spence t'. rupt in prison to take the examination Jones, 5 Barn. & Ald. 705. of bankrupts charged in executions; Last Past. - Where a date is stated and then it enacts, 'that every bankrupt, and this is followed by a date in the being in custody at the time of his last same mouth which is described as of examination, although charged in exe- the said month last past, this latter date cution, shall be brought before the com- will be held to be in the same year as missioners, to be examined by them, in the antecedent date, not in the previous the same manner as is now practiced year, the words last past referring to the with respect to bankrupts in custody day of the month, and not to the month. en mesne process. Now, this is a reme- The King v. Crisp, 7 East 389.

were

Thus of a lease, in a declaration of Last Legal Settlement.--This expresejectinent, is stated to have been made sion was construed under the Net on July 7th, 1825. to hold from “the 6th York poor laws upon the question as day of July then last past," it will be to the settlement of a bastard, when it construed to mean July 6th, 1825, and was decided that the last legal settlenot July 6th, 1824, when the earlier ment of the bastard's mother, however date is prior to the accrual of the title obtained by her, and whether before or of the plaintiff's lessor; for where the after the bastard's birth, was the settlewords may be rendered in either way ment of the bastard. This case arose that construction which renders the de- on a question between the overseers of mise useful to the action will be the poor of Canajoharie and those of adopted rather than that which would Johnstown. It appeared that the paudestroy it. Doe v. Vanness, 5 Halst. per was a bastard, about 14 years old. (N. J.) 102.

At the time of his birth the mother So where arbitration bonds was about 16 years of age and lived executed August 21st, 1813, and the with her father in Johnstown, where he award was dated August 23d, 1813, re- had a legal settlement. When the child citing bonds dated “the 21st of August was a year old the mother's father relast past," in an action of debt upon the moved with his family, including the arbitration bonds, it was pleaded “no mother and child, to Canajoharie, award," the award was objected to, as where he acquired a legal settlement; not pursuing the authority conferred by and the mother and her child continued the bonds. Upon this point the court to live with him. It was contended decided against the defendant, SUTHER- that the time of birth fixed the settle. LAND, J., saying: “The objection taken ment of the child, but the court held to the award below was, that it bore that the common law rule was altered date the 23d August, 1813, and pur- by the statute, saving: "The town of ported to be made by virtue of a bond Canajoharie was the place of the last of submission, which bore date “ August legal settlement of the pauper's mother. 21st, now last past," whereas the bond The pauper was an illegitimate child. declared on and produced in evidence At common law, a bastard child was bore date August 21st, 1813, being Au- 'settled where it was born; but our statgust instant instead of past.

The ar

ute (1 N. R. L. 280, Sess. 36, ch. 78, 93) bitrators also awarded general releases has altered the common law and debetween the parties, from the beginning clares, 'that every bastard child shall be of the world until the “21st day of Au- deemed and adjudged to be settled in gust last past, being the day of the date the city or town of the last legal settleof the arbitration bond," thus showing ment of the mother.' It is, however, that the award was made under a bond urged that the statute contemplates a of submission of August 21st, 1812, settlement acquired by the mother; and whereas the bond declared

not one that is derivative, or in consedated August 21st, 1813; and conse- quence of the acquisition of a new settlequently no authority was shown to ment through the father of the pauper's make the award. The strict grammat. mother as in this case. We are not at ical construction of the award is, per. liberty to proceed on such an ingenious haps, as contended for by the plaintiff distinction; the language of the statute in error. But the intention of the arbi. is clear and precise, that the last legal trators is perfectly clear. They run settlement of the mother, however acinto a mere inaccuracy of expression. quired, is that of her illegitimate child. To avoid such an expression we may, The very expression last legal settlewithout any great violence, suppose ment supposes that the settlement of that the words last past were intended the mother might be changed." The by the arbitrators to refer to the day Overseers of the Poor of Canajoharie v. and not to the monih. Vid. Dy. 376 The Overseers of the Poor of Johnstown, c; Ord on Usury, 61 n, Cro. Jac. 646. 17 Johns. (N. Y.) 41; See also DOMICIL, These awards are frequently made and vol. 5, p. 866. drawn up by illiterate men, and it will Last Sickness. -See NUNCUPATIVE not do to test them by the strict rules Wills. This phrase, as used in the of grammar. If there had, in truth, Pennsylvania act of February 24:6,1834. been another bond of submission in 1812, in regard to preferred claims, bas been it was competent for the defendant to held to refer only to the illness of which show it." Brown v. Hankerson, 3 Cow. the patient dies. Consequently where (N. Y.) 70.

a person received a

injury,

on

was

severe

LATE.-As an adverb, in the sense of last, recently, formerly;1

a

and called in a physician to attend him, tors interested in sustaining the adminbut partially recovered, so as to be able istration, contended for its validity, to attend to his business, the physic counsel saying: “But it is urged that cian's bill was held not to be a preferred the petition of the public administraclaim, although the patient subse- tor did not state facts sufficient to give quentiy became ill again from the same the probate court jurisdiction. The injury and died. During the latter essential jurisdictional facts are, first, part of his illness he had a different the death; second, the intestacy; doctor. In re Reese's estate, 2 Pear. third, the residence of the deceased at son (Pa.) 482.

the time of his death or inmediately Even where death results, if the ill- previous thereto.

All of these ness be a lingering one, the phrase are stated. But it seems to be supposed lust sickness will not be extended to the that the residence of Beckett is not sufwhole of it, so as to make the medical ficiently alleged under the expression attendance therefor a preferred claim. “James Beckett, late a resident of this It will include the services of the phy- state and county, etc. Webster defines sician only after the patient is virtually 'late,' among other definitions, as meanprostrated, and the services constantly ing 'last' or 'recently in any place or necessary. Duckett's Estate, i Luzerne office.' It is a legal term, in fact, and Leg. Reg. (Pa.) 227. Compare these is as such in the superlative degree and decisions with that in Rouse v. Morris, means last. In ancient times, when the 17 S. & R. (Pa.) 328 (1828), under the addition of a man's residence was necprior act of 1794 upon the same subject. essary in an indictment for a crime, the

In Maine, on the other hand, term 'late' was always used as descriptive under similar statute, it has of his last residence, and was held a been held that the sickness which is ter- sufficient allegation of his residence minated by the death of a patient, is the most technical terms of the common his last sickness, and the physician at- law.” This was confirmed by the court, tending him therefor is entitled to be BURNETT J. saying: “The jurisdic. paid as a preferred creditor, no matter tional facts in this case were the death how long its duration. Huse v. Brown and residence of the deceased. The Exr., S Me. 167.

words of the statute that 'ad1. In California, under the statutes ministration shall be granted, first, in of 1831, p. 418, making it the duty of the county of which the deceased was a the public administrator to take charge resident at or immediately previous to of the estate of any stranger, or person his death, in whatever place his death without known heirs, dying intestate, may have happened, etc.

The and to account for the same subject to meaning of this provision is, that ad. the control of the probate court, and ministration must be granted in the Lirther authorizing the court to make county of which the deceased was a hin special administrator, and to di- resident at the time of his death; and rect him to take charge of the estate, it the words or immediately previous appetred, in the case of the estate of one to' must be considered as inere surJames Beckett, that the public admin- plusage. A man cannot reside at two istrator filed his petition for letters of places at the same time, and unless the administration, which stated that the intention was to allow two administrasaid Beckett, late a resident of the state tions to be granted, the statute must reand county, died etc., and asked that he ceive the construction given. The be appointed a special administrator. public administrator, in his petition, This petition was granted, and subse- described the deceased as 'late a resiquently the widow and heir of the said dent of San Francisco couniy,' and it Beckeit intervened on the ground that was objected that this was not sufficient, the words of the statute had not been as it did not follow the words of the complied with, which are that admin- statute. But this objection would not istration must be granted in the county

be fatal. There is of which the deceased was a resident at provision of the statute requiring the or immediately previous to his death, very words of the law to be used, as no etc., and therefore the probate court precise form of petition is given. In never had jurisdiction, and grant of ad- such cases, though always safe to fol. ministration was void. Certain credi- low the words of the stalute literally, it

are

seein

to

no

« ZurückWeiter »