amination, warrant of removal, or any statement in the case, that enquiry was made as to him or as to his place of birth. In point of fact he was not born in Tullamore nor had he resided there for three years.

Under these circumstances it was contended, on behalf of the appellants, that the warrant of removal of the wife and the two children to Tullamore, the place of the wife's birth, was invalid, and ought not to have been granted, and we are of that opinion.

The statute under which the removal of Irish paupers is now regulated, is the 8 & 9 Vict. c. 117, as amended by the 10 & 11 Vict. c. 33, the 24 & 25 Vict. c. 76, and the 26 & 27 Vict. c. 89. The material clause is the 2nd section of the firstmentioned statute. The language of the section, according to its plain natural meaning, appears to require that where there is a husband, as well as a wife and children liable to be removed, they are all to be removed together.

With regard to the place to which the removal is to be made, by the 4th section of the 8 & 9 Vict. c. 117, the justices of a county or borough were empowered to make regulations for the removal of "such poor persons, their wives and children." But this section is now repealed by statute 26 & 27 Vict. c. 89. s. 3, and by the 25 & 26 Vict. c. 113. s. 2, the warrant of removal was required to contain (amongst other things) the name of the place in Ireland where the removing justices shall find such poor person to have been born, or to have last resided for three years. And a copy of the warrant was thereby required to be given to the person or "the head of the family" about to be removed by virtue of it. This shews that the legislature intended that where there was a head of the family, the removal was to be to his or her place of birth or place of residence, and the 26 & 27 Vict. c. 89, which makes further regulations concerning these removals, and gives the right of appeal by the Poor Law Commissioners of Ireland, prescribes the particular form of warrant used in this case.

No provision is made in any of these acts or in any of the former statutes which were repealed by the 1st section of the 8

& 9 Vict. c. 117, where a woman has been deserted by her husband, for her being removed without him or being removed to any other place than the husband's settlement if he were living; and upon a review of the statutes, and the decisions upon them, we think that such a case is left unprovided for.

In The King v. Cottingham (2) which case arose on the construction of a former act, the 59 Geo. 3. c. 12, which is now repealed, but which in its enactments closely resembled the 8 & 9 Vict. c. 117. s. 2, it was held that the wife of an Irishman, who had no settlement in England and had deserted her, might be removed without him to her own maiden settlement, which revived on her desertion by her husband. But it was there laid down by Bayley, J., in delivering the judgment of the Court, that the statute of the 59 Geo. 3. c. 12. s. 83, which in this respect is undistinguishable from the present, did not authorise the removal of the wife alone to the place of birth of her husband, and that as the husband having quitted the parish could not be removed to Ireland, so the wife could not be removed there without him, and that the case was therefore not within the act. It had been previously held in The Queen v. Leeds (5), that the wife and unemancipated children of a Scotchman, who had not deserted his wife but was living with her, could not, even with his consent, be removed to her maiden settlement, but that all were removable with the husband to Scotland. In The Queen v. All Saints, Derby (3), the question of the construction of the present act arose in the case of the children of an Irish father by an Irish mother. The mother had died, and the children had been deserted by the father. It was there decided that they were removable to the parish of their birth in England and not to Ireland, under the 2nd section of the statute. Coleridge, J., there laid down that according to the act the father must be dealt with as the subject of removal, and Wightman, J., said that the statute for the purpose of removal "applied directly to the father only, and to the children not otherwise than incidentally as a

(5) 5 Q.B. Rep. 916; s. c. 13 Law J. Rep. (x.s.) M.C. 107.

part of his family, and that if the father cannot be removed, there is no power over the children." Coleridge, J., also observed that the section might mean that, if the father were summoned, the order might be made at the time and place named, whether he appeared or not, or at any time when he did come, and that if he were absent, service of a summons upon him must be shewn, so that at all events the proceedings should relate to him. This case, which recognised the previous case of The King v. Cottingham (1), appears to make it clear that the wife and children cannot be removed except with the father, and at all events as a part of the father's family, and in a proceeding having reference to him; and therefore, at all events, a warrant of removal which ignores the father and the father's place of birth, and removes to that of the mother, must be considered as unwarranted by the statute.

nor

The subsequent cases of The Queen v. Much Hoole (2) and The King v. St. Giles, Cripplegate (5), are substantially in accordance with the cases previously mentioned, as shewing that neither a wife deserted by her husband, an Irishman, a daughter, though unemancipated and becoming chargeable in a different parish from that in which her parents, who were Irish, without a settlement, resided, can be removed to Ireland under the statute now in question; and as we have had no instance brought to our notice of such a removal having been made, and have been unable to discover any such case, we consider that this order of removal ought to be reversed as illegal, and that the respondent should, according to the 7th section of the 26 & 27 Vict. c. 89, pay the expenses of the preliminary enquiry and appeal, and also those of maintaining the persons removed, and of conveying them back to Liverpool.

Order of removal quashed.

Attorneys-Field, Roscoe & Co., agents for Marsh & Co., Warrington, for appellants; Monckton & Monckton, for respondents.

(5) 17 Q.B. Rep. 636; s. c. 21 Law J. Rep. (N.s.) M.C. 26.

1869. COCKER, appellant v. CARDWELL Nov. 17. J and others, respondents.

Nuisance Removal Acts, 18 & 19 Vict. c. 121. s. 12; 23 & 24 Vict. c. 77. s. 13; 29 & 30 Vict. c. 90. ss. 14, 21-Information by inhabitant under 23 & 24 Vict. c. 77. 8. 13-Summons without previous notice to abate nuisance.

Under 23 & 24 Vict. c. 77. 8. 13 (amended by 29 & 30 Vict. c. 90, part 2), a justice of the peace upon the complaint of any inhabi tant of any parish or place of the existence of any nuisance on any private premises in the same parish or place, may issue a summons requiring the person by whose act, default, permission, or sufferance, the nuisance arises, &c., or if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises, to appear before justices, &c., without proof of the service of a previous notice to abate the nuisance.

CASE stated by justices of the West Riding, under the 20 & 21 Vict. c. 43.

The respondents were summoned before two justices on an information by the appellant laid under section 13 of the 23 & 24 Vict. c. 77 (1), charging them with

(1) By 18 & 19 Viet. c. 121 (The Nuisances Removal Act, 1855) s. 11, a power of entry upon premises is given to the local authority, for the purpose of ascertaining the existence of nuisances, and by s. 12. In any case where a nuisance is ascertained by the local authority to exist, &c., they shall cause complaint thereof to be made before a justice of the peace, and such justice shall thereupon issue a summons requiring the person by whose act, default, permission, or sufferance, the nuisance arises, or continues, or if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises, to appear before any two justices, in petty sessions assembled, at their usual place of meeting, who shall proceed to inquire into the complaint, and if it be proved to their satisfaction that the nuisance exists, or did exist, &c., the justices shall make an order on such person, owner or occupier, for the abatement, or discontinuance, and prohibition, of the nuisance, &c.

By 23 & 24 Vict. c. 77. s. 13. "Upon complaint before a justice of the peace by any inhabitant of any parish or place of the existence of any nuisance on any private premises in the same parish or place, such justices shall issue a summons requiring the person by whose act, default, permission, or sufferance, the nuisance arises, or if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance

having on the 23rd March, 1869, committed a nuisance by allowing a certain chimney at their mill at Savile town, near Dewsbury, to send forth black smoke in such quantity as to be a nuisance. On the 19th April, 1869, the information came on to be heard. It was proved that the appellant was an inhabitant of the parish or place in which the nuisance complained of arose, and he gave evidence in support of the information. Mr. Wilson Hemingway also proved that on the 8th June, 1868, he informed the defendants of his appointment as smoke inspector for the Dewsbury Union district by the West Riding Association for the Suppression of the Smoke Nuisance, and that on the same 8th June, 1868, he left a copy of the notice hereinafter set out at the respondents' place of business. Also that on the 20th October, 1868, he personally served the appellant, James Cardwell, with a notice of which the following is a copy.

West Riding Association for the Suppression of the Smoke Nuisance, statutes 18 & 19 Vict. c. 121; 24 & 24 Vict. c. 77; 29 & 30 Vict. c. 90. I hereby give notice that having been appointed by the above-named association

arises, to appear before two justices in petty sessions . . . who shall proceed to inquire into the complaint and act in relation thereto as in cases where a complaint is made by a local authority under section 12 of the Nuisances Removal Act,

1855, and as if the person making the complaint were such local authority; provided always, that it shall be lawful for the said justices, if they see fit, to adjourn the hearing or further hearing of such summons for an examination of the premises where the nuisance is alleged to exist, and to require the admission, or authorise the entry, into such premises of any constable or other person or persons, &c., provided also that the costs in the case of every such application shall be in the discretion of the justices.

By 29 & 30 Vict. c. 90 (part 2) s. 21, the nuisance authority or chief officer of police shall, previous to taking proceedings before a justice. under section 12 of the Nuisances Removal Act, 1855, serve a notice on the person by whose act, default, or sufferance, the nuisance arises or is continued, or if such person cannot be found or ascertained, on the owner or occupier of the premises on which the nuisance arises, to abate the same, &c.

By s. 14. The expression "Nuisances Removal Acts" shall mean the acts passed in the years following of the reign of her present Majesty, that is to say, 18 & 19 Vict. c. 121, 23 & 24 Vict. c.

to the office of smoke inspector for the Dewsbury Union district, I have already commenced discharging the duties of that appointment, and am now making observations of such chimneys as appear to me to be most noxious with the view of laying information according to law for the abatement of nuisances arising from dense smoke. All the chimneys within the district will be inspected as early as possible, and if you have not already adopted some proper and satisfactory means for the prevention of smoke, you are hereby required to do so without further delay, or summary legal proceedings will be taken against you without further notice for any nuisance which may arise from your neglect.-Yours, &c., WILSON HEMINGWAY.

Westgate, Dewsbury.

Upon the hearing the following questions arose-Upon an information by an inhabitant under section 13 of the Act 23 & 24 Vict. c. 77, is a notice required to be given as under section 21 of the 29 & 30 Vict. c. 90, by the nuisance authority or chief officer of police? and, if so, was the notice given to the respondents sufficient for that purpose? The justices were of opinion that a notice was required, and that the notice given was insufficient. The question for the opinion of the Court is, whether the justices were right in holding that a notice was required, and that the notice before referred to, and given at the time proved, was insufficient?

Jelf, for the appellant. In the absence of express words, it must be held that justices may issue a summons under 23 & 24 Vict. c. 77. s. 13. without proof of a previous notice. The words in section 12 of 29 & 30 Vict. c. 90, which apply to such a notice, are strictly limited to proceedings under the Nuisances Removal Act, 1855. And there are reasons why such a notice should not be required where the summons is taken out under section 13 of 23 & 24 Vict. c. 77, for the justices have power to adjourn the inquiries if necessary, and have also a discretion as to

77, as amended by this part of this act, and this part of this act shall be construed as one with the said acts.

costs, which is a sufficient check against vexatious proceedings. He cited Glen's Law of Public Health, 5th ed. p. 482.

No counsel appeared for the respondents.

COCKBURN, C.J.-I am of opinion that the appellant's construction of 23 & 24 Vict. c. 77. s. 13. is right, and that upon an information by an inhabitant under this section no notice is required to be given, as under 29 & 30 Vict. c. 50. s. 21. This omission appears to me to be per incuriam, and not by design. By the first of the Nuisance Removal Acts to which we have been referred, 18 & 19 Vict. c. 121, sections 11 & 12, the local authority may, without any previous notice, put the law in motion for the abatement of a nuisance by a summons requiring the person offending to appear before justices. The second act, 23 & 24 Vict. c. 77, gives this jurisdiction to justices upon the complaint of a private individual, and there again no notice other than the summons itself is required, though there is a proviso enabling the justices, if they see fit, to adjourn the hearing for an examination of the premises where the nuisance is alleged to exist. We come now to the third act, 29 & 30 Vict. c. 90, and this act by section 21 requires that before the nuisance authority shall apply for a summons before a justice under 18 & 19 Vict. c. 121. s. 12, they shall serve a notice on the person by whose act the nuisance arises to abate the same within a specified time. This notice gives no power to the local authority to abate the nuisance itself, for this power can only be exercised by means of an order of justices; yet still the local authority is bound to serve the offender with a notice. Now it is plain that if such a notice is required in a proceeding before justices on the part of the local authority, in whom some confidence may reasonably be placed, then a fortiori it ought to be required in proceedings set on foot by private individuals who are not competent to pass an equally clear judgment upon the existence of a nuisance. It is far more probable that vexatious proceedings should be instituted by persons who have not had the advantage of the power of entering upon the premises where the nuisance is said to exist, conferred by

section 11 of the first act. But it seems that the framer of the last act forgot to apply the provisions as to notice to the intermediate act, though there it was more necessary than in the two others. It is true that it is provided that these three acts shall be construed as one, and they are in pari materiâ with each other. But we cannot import into the second act words which are omitted from it, and in their absence we must hold that no notice was necessary.

The

BLACKBURN, J.-I am of the same opinion, and think that the justices have not correctly construed these acts. Looking at the manner in which the acts are prepared and incorporated with each other, I can only say that small blame is due to those who fail in understanding them. Many complaints have been made as to the manner in which the statutes relating to the public health are framed, but the evil has never been remedied. In the present case we have an act containing one set of provisions, a second act amending and enlarging the first act, and a third act which is to be read as one with the two preceding acts as amended by the third act. natural result of this is that the Legislature have said one thing when they meant another. The first act says that the local authority must go before justices to enforce the abatement of a nuisance; the second that the justices upon the complaint of a private individual may proceed as if the local authority had come before them. Then it seems to have occurred to the Legislature that it would be a hard case if the person alleged to have caused the nuisance were summoned without a notice, and that provision should be made accordingly. I quite agree that it is much more proper that such a notice should be given where a private individual applies for the summons than where the application is by the local authority; but I can only suppose that the draughtsman had forgotten the existence of section 13 of the second act. I have no doubt that this was casus omissus, and that the Legislature would have inserted the right words if their attention had been called to the second act; but we cannot supply the

omission.

MELLOR, J., concurred.

THE QUEEN v. MARTIN.

Coinage Procedure Indictment for knowingly having counterfeit coin in possession after previous conviction for uttering.

Upon the trial of an indictment for the felony of having committed a misdemeanour within either of sections 9, 10, or 11 of 24 & 25 Vict. c. 99 relating to the unlawful possession and uttering of counterfeit coin after a previous conviction for a misdemeanour within those sections; the prisoner must first be arraigned upon the subsequent offence, and evidence respecting the subsequent offence must first be submitted to the jury, and the previous conviction must not be inquired into until after the verdict on the charge of the subsequent offence.

CASE stated by Forsyth, Queen's Counsel, sitting as Commissioner at the Leeds Summer Assizes:

William Martin was tried before me on the charge of being unlawfully in possesof counterfeit coin, he having been before convicted of unlawfully uttering counterfeit coin (1).

At the outset of the case Mr. Forbes, the counsel for the prosecution, called a witness and proposed to give in evidence a certificate to prove the previous convic(1) The first count of the indictment was as follows:

Yorkshire, West Riding Division to wit.-The jurors for our Lady the Queen upon their oath present that William Martin on the 10th day of April, in the year of our Lord one thousand

tion of the prisoner. Mr. Middleton, the counsel for the prisoner, objected, and I, having regard to the 37th section of the Act 24 & 25 Vict. c. 99, refused to receive the evidence at that stage of the case. Evidence was then given to shew that the prisoner was guilty of the subsequent offence charged, but I refused to allow evidence to be given of the previous conviction until the jury should give their verdict upon the subsequent charge. At the close of the case for the prosecution, the counsel for the prisoner contended that there was no case of felony to go to the jury, for that the offence of being in

eight hundred and sixty-nine, unlawfully had in his custody and possession fifteen pieces of false and counterfeit coin resembling and apparently intended to resemble and pass for fifteen pieces of the Queen's current silver coin called crowns, five pieces of false and counterfeit coin resembling and apparently intended to resemble and pass for five pieces of the Queen's current silver coin called florins, and five pieces of false and counterfeit coin resembling and apparently intended to resemble and pass for five pieces of the Queen's current silver coin called shillings, knowing the said several pieces of false and counterfeit coin to be false and counterfeit, and with intent unlawfully, fraudulently, and deceitfully to utter and put off the same, against the form of the statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do say that heretofore and before the committing of the offence hereinbefore mentioned, to wit at a special session and delivery of the gaol of our Lady the Queen holden at Lincoln, in and for the county of Lincoln, on Friday, the 11th day of December, in the twenty-first year of Her present Majesty's reign, the said William Martin, in the name of Martin Kelly, was in due form of law convicted on a certain indictment against him, for that he on the 14th day of November, in the twenty-first year of the reign aforesaid, at the parish of Gainsborough, in the county of Lincoln, did unlawfully utter and put off to Mary Pycock one counterfeit half-crown, knowing the same to be false and counterfeit, against the form of the statute in such case then made and provided. And that the said William Martin, in the name of Martin Kelly, was thereupon ordered to be imprisoned in the house of correction, and kept to hard labour for the term of two years. And so the jurors aforesaid, upon their oath aforesaid, do say that the said William Martin, on the day and year first aforesaid, feloniously and unlawfully had in his custody and possession the said several pieces of false and counterfeit coin, knowing the same to be false and counterfeit, and with intent unlawfully, fraudulently, and deceitfully to utter and put off the same in manner aforesaid, and against the form of the statute in such case made and provided.