THE JUSTICE OF THE PEACE. EDITORS: J. PATERSON, ESQ., A. MACMORRAN, ESQ., & G. G. GREENWOOD, ESQ., BARRISTERS-AT-LAW. REPORTERS: House of Lords and Court of Appeal— J. PATERSON, ESQ., BARRISTER-AT-LAW. Probate, Divorce, and Admiralty Division- W. LEYCESTER, ESQ., BARRISTER-AT-LAW. VOL. XLVII. LONDON: PRINTED AND PUBLISHED BY RICHARD SHAW BOND, FETTER LANE. 1883. AND COUNTY, BOROUGH, POOR LAW UNION, AND PARISH LAW RECORDER. Editors.-J. PATERSON, Esq,, A. MACMORRAN, Esq., G. G. GREENWOOD, Esq., The Reports in the Supreme Court of Judicature will be furnished by the following Gentlemen: J. PATERSON, ESQ., BARRISTER-AT-LAW. PRACTICAL POINTS: Bastardy-Notice of appeal, under what statute to be given since the passing of the Summary Jurisdiction Act .. Elementary Education Acts-Jurisdiction of justices .. PAGE 1 3 8 9 11 8 14 11 CONTENTS-continued. QUEEN'S BENCH DIVISION: New Trial Paper ... No. 1. Parliamentary and J. THOMPSON, Esq., BARRISTER-AT-LAW. Special Cases Demurrers ises :::::}R. C. GLEN, ESQ., BARRISTER-AT-LAW. Probate, Divorce, andĮ Admiralty Division} W.LEYCESTER, ESQ., BARRISTER-AT-LAW. passed to make the machinery less imperfect than it has hitherto proved. Municipal Corporations Act, 1882, s. 22-Pecuniary Poor Law-Removal Settlement by service before Poor Rate-Occupation of land-Rating conserva- Poor Rate Valuation (Metropolis) Act, 1869-Pro- Salmon Fisheries Acts-28 & 29 Vict. c. 121, s. 62; In 1851 the Labouring Classes LodgingHouses Act, 14 & 15 Vict. c. 34, allowed councils of boroughs and local improvement boards, when set in motion by a proportion of ratepayers, to undertake to build dwellings for labourers. In 1855 companies were incorporated to erect commodious dwellings for labourers according to regulations. And in 1868 the Artizans and Labourers Dwellings Act, 31 & 32 Vict. c. 130, enabled buildings to be destroyed which were ruinous and unfit for habitation. The local authority in towns might appoint an officer of health to report on the condition of premises, and the owner might then be called on to carry out certain specifications and 14 plans so as to extirpate the root of disease. 13 14 13 The act of 1875 intituled the Artizans and Labourers Dwellings Improvement Act, 38 & 39 Vict. c. 36, was hailed as a great stride towards a more efficient remedy Of late years so many schemes for public for some of these conspicuous evils. That works involving the demolition of houses act recited that various portions of cities and towns were so built and so densely in. of the working classes and the compulsory habited as to be highly injurious to the removal of large numbers to other neigh- moral and physical welfare of the inhabibourhoods have been in operation that tants, that there was a want of light, air, grievous hardships were discovered, and and ventilation, and proper conveniences, these bore too harshly upon the poor. There whereby fevers and diseases were constantly was also another grievance arising from the generated there, causing death and loss of practice of owners of dilapidated premises health, and that such houses, courts, and keeping those premises in a state of danger, alleys, were the property of several owners, and as a permanent nuisance, which and it was necessary for the public health also told on the health of the poor. that these portions of cities and boroughs Places not fit for human habitation were should be pulled down and reconstructed. often farmed by an arbitrary class of men The act was confined to the metropolis and who thought nothing of the comfort of their urban sanitary districts having a population tenants, but sought only to screw out of the of 25,000. needy the highest gains which could be got 14 without involving any corresponding repairs. These evils have led to a series of acts of parliament providing some security against 12 the attendant hardships and the nuisances with salaries. These officers were autho- Ꭺ State could be appealed to and another thereof. In 1879 another act was passed | perty acquired by them under this act upon medical officer appointed to report. When (42 & 43 Vict. c. 63), which recited that it trust to carry out the purposes of the act. at last an unhealthy area was reported, not unfrequently happened that, having due These purposes were, firstly, to be the prothe local authority, if satisfied of the truth regard to the requirements of persons of viding suitable dwellings within the and of the sufficiency of their resources, the working classes displaced by an improve- jurisdiction of the local authority for was to pass a resolution to the effect stated, ment scheme, equally convenient accommo- the labouring classes, and, secondly, the and that an improvement scheme ought to dation at a much less cost could be furnished purpose was to be the opening out of closed be made in respect of such area, and after to such persons or to some of them at some or partially closed alleys or courts passing such resolution a scheme was to be place other than within the area or the inhabited by the labouring classes, and made out. This scheme might include immediate vicinity of the area from which the widening of the same by pulling neighbouring lands, might provide for they had been displaced. Accordingly that down any building or otherwise leaving such accesses and ventilation, and, above all, act enacted that whenever it was proved open spaces as might be necessary to make might provide for the accommodation of, that this equally convenient accommodation such alleys or courts healthful. Subject to at least, as many persons of the working of the working class elsewhere could be had, these trusts the local authority might buy, class as might be displaced from the area in and that such was about to be forthwith sell, or exchange the premises acquired by suitable dwellings. This improvement provided, then the government might au- them under the act. And lessees who took scheme required to be confirmed by the thorize any such improvement scheme or the lands under an obligation to carry out Home Secretary or the President of the permit a modification of such scheme, and certain works were to give security to carry Local Government Board. But before that then the requirements of the statute might out the same, and in certain events were to stage notices were to be served on all owners be taken to be satisfied. And to facilitate forfeit their interest in the premises and all lessees, and occupiers of the lands that were this new view any local authority might ap- the materials if they failed to do their part. to be taken compulsorily. And the govern-propriate any other lands of their own so The local authorities, under this last act, ment might appoint a local inquiry as to the as to accommodate the displaced working were defined to be, for London the commiscorrectness of the representations, and the classes. sioners of sewers; for the rest of the metrosufficiency of the scheme. And advertisepolis the several vestries or local boards; and ments of the time and place of holding this for the rest of England the urban sanitary inquiry were to be issued. After all parties authority. had been heard, the scheme, if approved, took the form of a provisional order, and next of an act of parliament. The local authority was then to set about carrying out the scheme and to let and sell the area on proper conditions, and see to all the details of paving and sewering or of rebuilding premises and providing dwellings for the displaced working classes. If, within five years after removing the working men's dwellings, the local authority failed to let or sell the surplus lands, then the confirming authority, that is, the government, might order the land to be sold by public auction with full power to fix a reserve price, subject to conditions. Another change was made as to proving compensation for lands and premises. By the 3rd section of this act, 1879, evidence was allowed to be given before the arbitra tor, that at the date of the official representation by the medical officer, the house or premises by reason of its unhealthy state or by reason of overcrowding or otherwise was a nuisance within the meaning of the acts relating to nuisances, and the value of the premises was to be considered as if the nuisance complained of was abated, and the expense of such abatement was to be reckoned, and this expense was to be deducted from the total value. In 1879 another act was passed at the same time, namely, 42 & 43 Vict. c. 63, which amended the Artizans and Labourers Dwellings Act of 1868 already referred to. When premises were declared to be unfit and ruinous, and the owner was ordered to demolish them, he was allowed by this new act of 1879 to require the local authority to purchase the premises, and if they could not agree the value was to be settled by arbitration, and rules were laid down for considering the probable duration of the building, as an element of the price. In order to work out this scheme it was unavoidable that compulsory powers should be acquired by the local authorities, and the Lands Clauses Acts were incorporated for that purpose. A careful provision was contained as to the mode of arriving at the proper compensation to owners and others interested in the land. The estimate of the value was to be based on the fair market value as estimated at the time of the valua- Another section of this act of 42 & 43 tion being made, and of the several interests Vict. c. 64, namely, the 12th, dealt with the in such lands, due regard being had to the powers of the Metropolitan Board of Works. nature and then condition of the property, In the event of any local authority within and the probable duration of the buildings the metropolis declining or neglecting for in their existing state, and to the state of three months after a requisition calling on repair thereof, and all circumstances affect them to enforce this act in respect of ruinous ing such value, without any additional al-premises, then all the powers vested in the lowance in respect of the compulsory pur-local authority should become vested in the chase of one area or of any part of an area. board, which board should act in all respects Notwithstanding the great expectations as though they were the local authority, excited by the passing of the act of 1875, and all expenses incurred by the board the result achieved has proved very trifling should, on demand, be paid by the local auand the machinery was considered too cum-thority out of the local rates. It was also brous, and any scheme was impracticable declared that in the metropolis the local auwhich included labourers' dwellings as part thority or their lessees should hold all pro These acts of 1879 have still failed to be acted on satisfactorily, and another act has just passed in the last session of parliament to amend both of such acts. As regards the accommodation of the displaced workmen it is now enacted by this last act of 45 & 46 Vict. c. 54, s. 3, that when an improvement scheme in the metropolis is provided, and it is deemed expedient, having regard to the special circumstances and the number of artizans dwellings within the area and being employed within a mile thereof, to dispense with the necessity of providing accommodation for all the displaced artizans, then such accommodation may be limited to one-half of the displaced artizans. And in other parts of England beyond the metropolis, the government may modify this requirement as to accommodating the displaced workmen, by allowing such accommodation to be restricted to a limited number or to a site without the area. This modification dispensing with providing for the whole of the displaced workmen may be exercised by the government any time within 12 months after the passing of this act. The act of 1882 also enables the guardians or any owner of land near any ruinous premises in the metropolis to complain to the metropolitan board of the local authority failing to enforce the act against the owner of the ruinous premises, and then the board may themselves do what is necessary. There is also further power given as to the opening up of alleys in the metropolis. The 8th section of this recent act provides that if the officer of health certifies that a building, though not itself unfit for human habitation, yet, by reason of proximity, stops ventilation or makes other buildings unfit, then the obstructive building may be The Doctrine of Emancipation and its bearing on Settlement by Residence. Of the many points of difficulty arising out of the 39 & 40 Vict. c. 61, s. 34, none are so difficult as those which relate to the acquisition by children of a settlement by residence. One of these has recently been brought to our notice, and seems to be of sufficient importance to justify discussion in this place. It may be put in the form of a question, Has or has not an unemancipated child capacity to acquire a settlement of its own by residence? "The effect (of the statutes already men- ordered to be pulled down, and the local au- | does not emancipate. It is therefore laid 19 Q. B. 38. In that case a woman, 19 years thority may purchase the building, and the down as the conclusion to be drawn from the of age, unemancipated, having no other price will be estimated by arbitration in the decisions on this point, that "if provision be settlement than that of her mother who was same way as the other buildings and lands made for a child under age, and indepen- a widow, resided for two years in St. George's compulsorily taken. dently of the parents, and the child lives union, Westminster. She then became These provisions as to dispensing with pro- away from the father's family, so that he chargeable, and was removed to her mother's viding accommodation for all the displaced exercises no superintendence or immediate place of settlement. It was held that, being working men and for opening up alleys can actual control over the child, still this will unemancipated, and not having gained a scarcely fail to give an impetus to these not amount to an emancipation," 4 Burn's settlement in her own right, the woman was useful statutes, and to bring them more Justice, 346. But it is the exception to this removable by virtue of the 11 & 12 Vict. speedily into practical effect than has unfor- general rule which is important for the pur- c. 111, s. 1, although she had resided more tunately been the case hitherto. poses of this article. And the exception is than a year in St. George's union. This case thus stated by Abbott, C. J., in R. v. Wil- is an excellent illustration of the doctrine of mington, 5 B. & Ald. at p. 526:-"During emancipation. The facts were these. the minority of a child there can be no Mother and daughter had both been inmates emancipation, unless he marries and so of the workhouse of St. Olave's union. The becomes himself the head of a family, or daughter was sent thence to a school where contracts some other relation so as wholly she was maintainsd at the charge of the and permanently to exclude the parental parish for eight years. She then went out control." It is unnecessary to quote the to service and resided for two years in St. numerous decisions on the subject, as they George's union, where she became chargeall resolve themselves according to this prin- able through illness which produced perciple, and it will be seen hereafter how this manent disability. Yet notwithstanding her affects the acquiring by a child under 21 of a two years' residence she was held to be restatus of irremovability. movable. She was under 21 years of age; Such being the doctrine of emancipation she was unmarried; she had acquired no we come to consider its bearing on the re-settlement of her own; she was therefore movability or irremovability of a child unemancipated. And Quain, J., said :— unemancipated. The 9 & 10 Vict. c. 66, Merely premising that a child means a contained a proviso that whenever any perperson under the age of 16 years we proceed son should have a wife or children to inquire what is meant by emancipation. having no other settlement than his or The doctrine of emancipation was thus her own, such wife or children should stated by Lord Tenterden, C. J., in R. v. be removable whenever he or she was removHardwick, 5 B. & Ald. 176, "During the able, and should not be removable whenever minority of the child he will remain, under he or she was not removable. The meaning almost any circumstances, unemancipated; of this proviso being doubtful, the 11 & 12 It follows from the case last cited that a but where a new settlement is acquired by Vict. c. 111, recited the 9 & 10 Vict. c. 66, s. child unemancipated cannot acquire a status the parent after the child has attained the 1, at length, repealed the proviso, and of irremovability by residence under the age of 21, it will not be communicated substituted for it the following: "Provided statutes which render a person in general to the child unless in fact the child con- always that whenever any person should irremovable after a years' residence, for the tinues part of the family. When, there- have a wife or children having no child in such case remains a member of his fore, at that period he is absent, em- other settlement than his or her own, such parents' family, and is removable with his ployed in gaining a livelihood for himself wife or children should be removable parents. How far then are the doctrines or serving in the militia, he no longer from any parish or place from which he already stated consistent with the decisions remains a member of the family." In other or she would be removable, notwith- which establish that a child may acquire a words, a person under the age of 21 years standing any provisions of the said recited settlement by residence under the 39 & 40 is presumed to be unemancipated so long as act (9 & 10 Vict. c. 66), and should not be Vict. c. 61, s. 34. It is necessary to he does not marry or acquire a settlement removable from any parish or place from bear in mind that the residence required for himself, and even after attaining that which he or she would not be removable by by that section is a three years' resiage he remains unemancipated so long as he reason of any provision in the said recited dence in a parish "in such manner continues to reside with his parents as part act." Speaking of the effect of this section and under such circumstances in each of of the family. Lastly, in certain cases even in Reg. v. St. George's-in-the-East, L. R. 9 such years as would, in accordance with the when the child is over the age of 21 years Q. B. at p. 368, Blackburn, J., said :—' "The several statutes in that behalf, render him and has ceased to reside with his parents, legislature in the enactment would seem to irremovable." Therefore, it may be laid he is unemancipated if he is unable to work say this :-In establishing the status of down as a general rule that a child unemanthrough some physical incapacity or is an irremovability, we leave the common law idiot. On these points reference may be principle untouched that husband and wife made to R. v. Roach, 6 T. R. 247; R. v. shall not be separated; and therefore where Wilmington, 5 B. & Ald. 525; R. v. Broad- the husband has a settlement and is hembury, 4 Doug. 241; R. v. Much Cowarne, removable, the wife, though she has resided 2 B. & Ad. 861. sufficiently long to have become irremovable, The most difficult cases relating to emanci-shall be removed with him; and vice versa if pation are those which arise when a child the husband is irremovable, neither shall the under 21 resides away from the parental wife be removed." This doctrine is applichome. As already stated, the presumption generally is that a child under 21 is not emancipated. And mere absence from home able to the case of parent and child to the cipated cannot acquire a settlement by residence. And where the child has been held to have acquired such a settlement it will be necessary to look for circumstances which warrant the inference that the child has become emancipated. In Reg. v. Leeds Union, 4 Q. B. D. 323, the facts were as follows:-The pauper was the illegitimate child of C. W., a single woman, and was born in the parish of R. When about a fortnight old she was placed by her mother in the care of J. O. and his wife, |