Ex parte the Inhabitants of Broseley
| Jurisdiction | England & Wales |
| Judgment Date | 02 November 1837 |
| Date | 02 November 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 529
IN THE COURT OF KING'S BENCH
[423] Ex parte the inhabitants of broseley. Thursday, November 2d, 1837. An order of removal to E. was made upon an examination stating a hiring in 1813 and a service in E. under such hiring. On appeal, upon the ground that there was no such hiring, the respondents proved a hiring in 1810 ; upon which the seasions refused to go on with the case, and quashed the order. Mandamus to enter continuances and hear the appeal refused: 1. Because the sessions had in fact heard; 2. Because the variance was material, under stat. 4 & 5 W. 4, c. 76, g. 81. Although it was not alleged that the appellant parish was in fact misled. Two justices removed Mary Mason, the widow of Edward Mason, from the parish of Broseley, in the borough of Wenlock, to the parish of Eaton in Shropshire. The order was made on the examinations of Thomas Smith and of Mary Mason; the former of whom stated that he hired Edward Mason, in 1813, to be his servant, and that Mason served under auch hiring, in Eaton, for a year (a). The parish of Eaton appealed to the Shropshire Quarter Sessions, on the ground, as stated in the notice, "That there was in fact no such hiring or service for a year as in the examination of Thomas Smith in this case is stated." On the hearing of the appeal, Thomas Smith, who waa the first witness for the respondents, proved the hiring to have been in 1810, and not in 1813 : upon which the sessions, without hearing further evidence, held the variance fatal, and quashed the order. The respondents applied for a case, which was refused. It was not alleged, at sessions, that the mistake in the examination had deceived or misled the appellants. Archbold, on affidavit of the above facts, moved for a mandamus to the justices to enter continuances and hear the appeal. The settlement proved was substantially the same as that set forth in the examination, within the spirit of sect. 81 of stat. 4 & 5 W. 4, c. 76. The state-[424]-ment in the examination is now in the nature of a bill of particulars. " An erroneous date to a bill of particulars, which is not calculated to mislead the defendant, will not preclude the plaintiff from recovering his demand;" (c) 6 A. & E. 349. S. C. 1 Nev. & P. 474. And see Rex v. The Mayor of Winchester, ante, p. 215. (a) It did not appear from the affidavit that any other evidence of the hiring and service waa given before the two justices...
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