since gone to America), and the occupying of and payment of rent for the same, for two years: the appellants then proved by a witness that the taking in question was by agreement in writing; and it was now insisted for them that, as the respondents had not produced and proved the written agreement, the order of removal ought to be quashed: but the court held that as the objection appeared from their evidence only, and not from that of the respondents, it was for the appellants to produce and prove the agreement, if they intended to found any defence upon it; the rule is, that if after proof by a party of a contract by parol, it appear from that party's witnesses, either upon examination or cross-examination, that the contract was in writing, he must then produce and prove it; but if this appear, not from the evidence of his witnesses, but from witnesses called by the opposite party, then the latter must produce and prove the written agreement, if he would derive any advantage from it (y).

But where a written instrument has been destroyed or lost, then upon proof of that fact (z), the parties will be allowed to give secondary evidence of its contents, by an examined copy or even parol evidence. Where however it appeared that the pauper held under a written instrument, not stamped; and this being lost, it was proposed to give parol evidence of that part of it which specified the rent to be paid for the tenement, in order to prove it to be of the yearly value of 101.: the sessions refused to receive the evidence; and the court of King's Bench held that they had done rightly; for it was attempting to give parol evidence of the contents of a written instrument, which, if produced, conld not be received in evidence for want of a stamp (a). Where, upon the trial of an appeal, the appellants, to prove a settlement by renting a tenement, put in a written agreement, but this being signed by the tenant only, and not by the landlord, and being objected to on that account, the sessions refused to receive it, or to hear parol evidence of the letting, and accordingly dismissed the appeal: the court said that they could not interfere; the sessions had heard the case, and determined the point of law, and if they decided erroneously, still this court could not interfere to set them right unless a case had been stated (b).

Also, if a written instrument be in the hands of the opposite party, and, after being served with a notice to produce it at the trial, he refuses to do so, you may give secondary evidence of its contents. But if a witness be served with a subpœna duces tecum to produce a written instrument, and he either

(y) R. v. Padstow, 4 B. & Ad. 208.

(z) See ante, p. 544.

(a) R. v. Castle Morton, 3 B. & Ald. 588.

(b) R. v. Frieston, 5 B. & Ad,

do not attend, or does attend and refuses to produce the document (not on the ground of privilege), you cannot in that case give secondary evidence of its contents; you can only proceed against the witness for his contempt (c).

As to the proof of an indenture of apprenticeship, see ante, p. 544.

In general, parol evidence shall not be admitted, to add to, alter or explain a written instrument. But where, upon the trial of an appeal, in order to prove a settlement by estate in the parish of Boarhunt, the respondents put in a deed of feoffment, which however described the property as being in the parish of Southwick, they then proposed to call witnesses to prove that the property was in fact in Boarhunt, and not in Southwick, and they argued that as they were not parties to the deed, they were not estopped by the description of the property contained in it: the court of King's Bench held the evidence to be admissible (d).

The examination of a person upon oath, relating to his settlement, cannot be given in evidence; and, à fortiori, what he has said upon the subject, when he was not upon his oath, cannot be evidence. Where the pauper, before his removal, was examined on oath as to his settlement by two magistrates, and proved a settlement by hiring and service in Nuneham Courtney; after notice of appeal and before the next sessions, he absconded and could not be found; and upon proof of these facts, the sessions received the examination in evidence, and confirmed the order: the court of King's Bench, however, quashed both orders, on the ground that the evidence was inadmissible (e). In a previous case, where the pauper after his examination had become insane, the court were divided as to whether his examination could be given in evidence, upon an appeal against an order for his removal; Lord Kenyon, C. J. and Grose, J. holding that it could not, Buller, J. and Ashurst, J. holding that it could (f). Where, upon an appeal against an order of removal, the respondents called the pauper, who was the widow of one John Hill, deceased, and she gave evidence of what she heard her deceased husband say as to his settlement; they also put in the examination of the deceased before two magistrates as to his settlement; and the sessions upon this evidence confirmed the order: but the court of King's Bench held the evidence to be inadmissible, and quashed both orders (g). So where a pauper, in her examination before the magistrates, stated that she heard her husband say that he was

(c) R. v. Llanfaethly, 23 Law J. 33, m.

(d) R. v. Wickham, 2 Ad. & El. 517.

(e) R. v. Nuneham Courtney, 1 East, 373.

(f) R. v. Eriswell, 3 T. R. 707. (g) R. v. Ferry Frystone, 2 East, 54.

settled in Abergwilly by hiring and service; but on the trial of the appeal she denied having heard her husband say so; upon which an examination of the husband as to his settlement in Abergwilly was put in, and the sessions thereupon confirmed the order: the court of King's Bench, however, on the authority of the last case, quashed both orders (h).

There is one exception, however, to this last rule, namely, with respect to the examination of soldiers as to their settlements which is always introduced into the annual Mutiny Act, and which is usually worded thus: "That any justice in the United Kingdom, within whose jurisdiction any soldier, having a wife or child, shall be billeted, may summon such soldier before him, in the place where he is billeted, (which summons he is hereby directed to obey,) and take his examination in writing, upon oath, touching the place of his last legal settlement in England, and such justice shall give an attested copy of such examination to the person examined, to be by him delivered to his commanding officer, to be produced when required; which said examination and such attested copy shall be at any time admitted in evidence as to such last legal settlement before any justice, or at any general or quarter sessions, although such soldier be dead or absent from the kingdom; provided that in case any soldier shall be again summoned to make oath as aforesaid, then on such examination or such attested copy thereof being produced by him, or by any other person on his behalf, such soldier shall not be obliged to take any other oath with regard to his legal settlement, but shall have a copy of such examination, or a copy of such attested copy of examination, if required (i)." Where upon the hearing of the appeal, the respondents' attorney produced a paper, purporting to be the examination of the pauper's husband, a soldier, under the Mutiny Act, which he said he received from the overseer; but no evidence was given of the signatures of the justices, or that they were justices of the county; the sessions, however, confirmed the order: but the court of King's Bench held that this examination, as it was not properly authenticated, and the possession of it accounted for, ought not to have been received in evidence (k). So, where, instead of an attested copy, an examined copy, but signed by the justice, was given in evidence, the court of King's Bench held that it clearly was not evidence (1). So, where a soldier was examined as to his settlement, under the Mutiny Act; and after his death, the examination being offered in evidence, in proof of his widow's settlement, it was objected to, because it

(h) R. v. Abergwilly, 2 East, 63. (i) See R. v. Warminster, 3 B. & Ald. 121. R. v. Warley, 6 T. R.

534.

(k) R. v. Bilton with Harrowgate, 1 East, 13.

(1) R. v. Clayton-le-Moors, 5 T. R. 704.

did not appear, either on the face of the examination or aliundè, that the soldier was quartered in a place where the justices had jurisdiction; but the sessions admitted the evidence and confirmed the order: the court of King's Bench held that the examination was not evidence, for the reason stated in the objection, and quashed the order of sessions (m).

Also as to prisoners: by stat. 59 Geo. 3, c. 12, s. 28, "it shall be lawful for any justice of the peace, to take in writing the examination upon oath of any person, having a wife or child, who shall be a prisoner in any gaol or house of correction, or in the custody of the keeper of any such gaol or house of correction, or who shall be in the custody of any constable or other peace officer by virtue of any warrant of commitment, touching the place of his or her last legal settlement; and such examination shall be signed by such justice taking the same, and shall be received and admitted in evidence as to such settlement before any justices, for the purpose of any order of removal, so long only as the person so examined shall continue a prisoner" (n). And where the examination of a prisoner, taken in January, 1845, whilst he was under sentence of transportation, was offered in evidence in June in the same year, the court held that it could not be received, without evidence also that he was still a prisoner (o).

Where a pauper swore to a hiring and service for a year, and in order to contradict this the opposite party offered in evidence an entry in the book of the master, then deceased, from which it would appear that there were two distinct hirings for half a year each, with an interval of some days between them, but the sessions rejected the evidence the court held that the entry was not evidence, either on the ground that it was against the master's interest, or made in the course of any duty or employment (p). In many cases evidence of the indentity of a party may be necessary to connect the testimony of different witnesses, and show that they are speaking of the same person. Where the pauper's examination stated that she was the widow of A. B., who was born at C. as she believed, and another examinant swore that he was the elder brother of A. B., and that A. B. was born at C.; the ground of appeal was, that the order, notice of chargeability and examinations were bad on the faces thereof: the court held that under this ground of appeal, the appellants might object that there was no evidence that the A. B. mentioned by the widow, was the same A. B. mentioned by the other examinant (q).

(m) R. v. All Saints, Southampton, 7 B. & C. 785.

(n) See R. v. JJ. of Norfolk, 5 B. & A. 484. Ante, pp. 770, 771. (0) R. v. Widdecombe in the Moor, 16 Law J. 44, m.

(p) R. v. Worth, 4 Q. B. 132; 12 Law J. 47, m.

(q) R. v. JJ. of Staffordshire, 16 Law J. 53, m.

In every other respect, the evidence in an appeal against an order of removal, is the same as in other cases.

It may be necessary to add, that if the sessions receive any evidence which they should not, or refuse evidence which they ought to receive, and decide the appeal, the court of Queen's Bench will not, nor can they, interfere, unless the sessions grant a case for their opinion (r). So, if the sessions hold that there has not been sufficient search for a lost deed, and refuse to receive secondary evidence of it, the court will not interfere with their decision, unless it appear clearly to be wrong (8). But if they decide the appeal upon a preliminary objection without going into the merits, and decide wrongly, the court of Queen's Bench, upon application, will grant a mandamus requiring them to enter continuances and hear the appeal. See ante, vol. 2, tit." Mandamus."

SECTION V.

Admissions of Settlement.

1. Certificate, p. 814.

2. Relief, p. 817.

3. Order of Removal unappealed against, p. 822. 4. Order appealed against and confirmed, p. 827. 5. Order appealed against and quashed, p. 830.

:

There are some topics of evidence, however, peculiar to this subject, which it is necessary to mention here more particularly namely, first the certificate of the churchwardens and overseers of a parish, &c., certifying that a person residing in another parish is legally settled in that parish; secondly, relief given by a parish to persons residing out of it; thirdly, orders of removal unappealed against: the first an express admission, the second and last implied admissions, of a settlement. To these I shall add the law as to the effect of a former order appealed against, and confirmed or quashed, as evidence of a settlement. We shall consider these now in their order.

1. Certificate.

What, and in what cases, 814. | Form and requisites, 815.

What, and in what cases.] Formerly, if a poor person came to inhabit in a parish, &c., which was not his place of settle

(r) R. v. Frieston, 5 B. & Ad, 597.

(8) R. v. Saffron Hill, 22 Law J.