THE KING V. THE INHABITANTS

OF KELVEDON.

1836. Nov. 16. Poor Law Amendment Act, 4 & 5 Will. 4. c. 76-Examination-Evidence.

The act of 4 & 5 Will. 4. c. 76. requires that the respondent should send a copy of the examination of the pauper, on which the order of removal was obtained, and provides, that the respondent shall not be allowed to go into evidence of any other ground of removal than that which appears on the examination :—Held, that where, upon the examination, the pauper stated that his father belonged to the appellant parish, and that he continued to belong there till his death, and that he had heard him say he was a certificated man from the appellant parish, it was competent to the respondents to go into evidence, that the pauper's father gained a settlement in the appellant parish by apprenticeship, and that he was a certificated man from that parish; and the Sessions having refused to hear such evidence, the case was sent back to be heard.

Upon appeal against an order, by which James Bird, his wife, and three children, were removed from the parish of Kelvedon in Essex to the parish of Colsterworth

in Lincolnshire, the Sessions quashed the order, subject to the opinion of the Court

upon a

CASE,

by which it appeared, that the pauper having, subsequently to the 1st of November 1834, become chargeable to the parish of Kelvedon, an order of Justices was obtained for the removal of himself, his wife, and children, to the parish of Colsterworth, and in compliance with the 79th section of 4 & 5 Will. 4. c. 76, notice of their being chargeable, and a copy of the order of removal, and a copy of the examination on which the order of removal was made, was sent to the overseers of Colsterworth. The examination ran thus :-

"I was born at Kelvedon, in the county of Essex, where my father then resided, but belonged to the parish of Colsterworth in Lincolnshire, and continued to belong there till his death, as I have heard and believe; and I have also heard him say, that he was a certificated man from the said parish of Colsterworth in Lincolnshire. That I have never done any act whereby to gain a settlement in my own right to the best of my knowledge and belief. That I have a wife," &c.

The overseers of Colsterworth, within

twenty-one days after the notice of chargeability, &c. was sent them, gave notice of appeal, and with such notice, a statement in writing of the grounds of appeal as directed by the 81st section of the act. The statement was as follows:

"That the father of the pauper, James Bird, never was legally settled in our parish of Colsterworth, nor was there ever a certificate granted by our said parish of Colsterworth, owning the pauper's father to be legally settled in our parish of Colsterworth, as in the examination in this case is stated; and take notice, that, at the trial of the appeal, we mean to avail ourselves of both or one of the said grounds in support of the said appeal."

On the appeal coming on to be tried at the Essex Easter Sessions, the respondent's counsel proposed to prove a settlement gained by the pauper's father in the parish of Colsterworth by apprenticeship, upon which it was objected, that such evidence could not be received, on the ground, that the respondent parish was not at liberty, under the 81st section of 4 & 5 Will. 4. c. 76, to give evidence of any other grounds of removal than those set forth in the order of removal and examination; and that it was not stated, in the order of removal or examination, as a ground of removal, that the pauper's father had acquired a settlement by apprenticeship in the parish of Colsterworth. The Court decided, that the respondents were not at liberty to give the evidence proposed, and quashed the order as above stated.

Sir W. W. Follett and Ryland, in support of the order of Sessions.-The present is a question of considerable importance, as regulating the practice of the Sessions under the Poor Law Amendment Act, and turns upon two of the sections of the act the 79th, which requires that notice of chargeability, together with the examination on which the order of removal was obtained, shall be sent with the order to the parish to which the removal is to be made; and the 81st section, which enacts, "that fourteen days at least before the trial of the appeal, the appellants are to send notice, with a statement of the grounds of appeal;" which section also provides, "that it shall not be lawful for the respondent or appellant parish, on the hearing of any ap

peal, to go into, or give evidence of any other grounds of removal, or of appeal against any order of removal, than those set forth in such respective order, examination, or statement as aforesaid." The question is, what construction the Court will put upon that proviso. The question was once before the Court in The King v. the Justices of Cornwall (1).

[COLERIDGE, J.-The question there was as to the sufficiency of the statement by the appellants: that is not the question here.]

It would appear to have been the intention of the act to confine the respondents to the ground upon which the order of removal was made, as stated in the examination, in the same way as the appellants are confined to the ground of appeal, as appears by the statement sent with the notice. The examination merely states that the pauper's father belonged to the parish of Colsterworth, and the pauper had heard him say, that he was a certificated man from that parish.

[COLERIDGE, J.-The parish cannot alter the language of the pauper, but they may put the ground of appeal in their own language.]

The question is, whether it ought not to have been stated on the examination, that the pauper's father had gained a settlement by apprenticeship in the parish of Colsterworth; and, as to the difficulty suggested that the parish could not alter the language of the pauper, it was incumbent on the overseers applying for the order of removal to inquire more particularly as to the fact, how the pauper's father belonged to the parish of Colsterworth; whether he was settled there, and how settled; whether by

(1) The case of The King v. the Justices of Cornwall will be found reported in 5 Law J. Rep. (N.S.) M.C. 106. It will not be out of place here to observe, that in a case of The King v. the Inhabitants of Castleton, N. R. Clarke, on the 3rd of November, moved for a mandamus to Justices to hear an appeal. In that case, the ground of appeal stated was, that the pauper bad subsequently gained a settlement in another parish by hiring and service. The Sessions thought the notice insufficient in not stating with whom the hiring and service was, and refused to bear the appeal; and The King v. Cornwall, as reported in Archbold's Practice, being cited, Lord Denman, C.J., said, "It strikes me that that goes a little too far; and I am not disposed to think that the language, as there stated, is right. Your case, however, goes much further than that—take a rule."

apprenticeship, hiring and service, or what other mode, so that it might have appeared on the examination. If the Court are to say that this loose and general statement on the examination, is sufficient to enable the removing parish to go into evidence of the means by which he became settled, no information is conveyed to the overseers of the appellant parish whatever, and the Court will not be fulfilling the intention of the act of parliament.

[COLERIDGE, J.-Suppose, on the examination it had been stated, that the pauper's father was settled in the parish of Colsterworth, would you prevent the overseers of the removing parish from going into any evidence as to how he was settled?]

It is apprehended that that would be no

examination under the act.

Knox, contrà, with whom was C. R. Turner, was stopped by the Court.

LORD DENMAN, C.J.-The act of parliament might have required a statement of the grounds of removal to be sent by the respondent parish, and might have thus thrown upon the respondents the same strictness as to that statement, as is by the act thrown upon the appellants, in the statement of the grounds upon which they appeal. It has not, however, thought proper to do so, and the reason appears pretty obvious. The appellants know the grounds upon which they appeal; and they can state, in their own language, what those grounds are. The order proceeds upon the examination of the pauper, and all that is required of the respondent parish is to send the examination upon which the order was obtained. All that was required of the respondents has been done in this case, and they ought to have been permitted to go into evidence of the settlement.

PATTESON, J.-I am of the same opinion. The appellants, in the statement of their ground of appeal, have treated the examination as conveying to them an intention, on the part of the respondents, to prove a settlement of the pauper's father in the parish of Colsterworth, and that he was a certificated man from that parish.

WILLIAMS, J.-I am also of the same opinion. Whether the examination was properly taken is quite immaterial. The examination was taken; and such as it was,

it was sent with the order of removal to the appellant parish. Then, did the respondent parish attempt to travel out of the ground of removal as it appeared upon the examination? In the statement by the appellants of the ground of appeal, the appellants say, that the pauper's father never was settled in the parish of Colsterworth, nor was there ever any certificate granted; so that they understood the ground on which the order of removal was obtained to be, that the pauper's father was there settled, and was a certificated man when residing at Kelvedon.

COLERIDGE, J.-There is a great difference in the language of the statute as applicable to the statement of the grounds of appeal by the appellant, and the sending of the examination by the respondent parish. The legislature have taken care that the appellants should not be prejudiced by any looseness or generality of statement in the examination, by enacting, that no removal shall take place till after the expiration of twenty-one days after notice of chargeability, and in the meantime free access is given to the appellants to the pauper; and, if the generality of the examination is such as to give them but little information, they have an opportunity of obviating that by inquiry more particularly of the pauper himself as to the nature of his settlement.

Order quashed. The case to go back to Sessions to be heard.

1836. Nov. 16. S

THE KING v. THE INHABITANTS
OF HOLBEACH.

Poor Law Amendment Act, 4 & 5 Will. 4. c. 76.-Appeal, Statement of Grounds.

Where the ground of appeal was stated to be, that the pauper, at the time when he hired himself (as stated in the examination) and before the completion of the bargain, stipulated with his master, that out of his year's service he should be allowed to have two days holidays at Spalding club-feast, in the month of July, and that the pauper was allowed and did take and absent himself from his master's service during the said two days accordingly:-Held, that it was not competent for the appellants, under that notice, to prove a bargain for one

day's holiday to go to Holbeach fair, and that the pauper had such holiday in pursuance of the bargain.

Upon appeal against an order, by which George Hobson, his wife and children, were removed from the parish of Holbeach, in the parts of Holland, in the county of Lincoln, to the parish of Spalding, in the same parts and county, the Sessions quashed the order, subject to the opinion of this Court upon the following

CASE.

The grounds of removal, as set forth in the examination of the pauper, a copy of which was sent to the appellants, with the order for his removal, pursuant to the statute 4 & 5 Will. 4. c. 76, were as follows, viz. "that about three years ago the pauper was hired by, and did contract and engage to serve John Boston, of the parish of Spalding in the said parts and county, farmer in husbandry, for one year, at the wages of 81. 15s., and that he served his said master under that hiring the whole of the same year in the said parish of Spalding, and received the said wages." The notice of appeal, which also contained the grounds thereof, pursuant to the 81st section of the said act, stated such grounds of appeal to be as follows, viz.-" The grounds of such appeal are, that, at the time of the said pauper, George Hobson, letting himself to, and contracting and engaging to serve, John Boston, of Spalding aforesaid, farmer in husbandry, as mentioned in the copy of examination of the accompanying order of removal, and previous to the completion of their said bargain, and before any earnest and fasten-money was paid, the pauper George Hobson did stipulate and agree with John Boston, his intended master, that he should, out of his year's service, be allowed and have two days' holidays at Spalding club-feast, in the month of July, and that the pauper George Hobson was allowed and did take and absent himself from his master's service during the said two days accordingly, whereby he did not gain any settlement in our said parish of Spalding." The pauper proved that he did hire himself for one year to John Boston, to serve him in the parish of Spalding, at the wages of 81. 15s., and that he duly

served his master under that hiring in the parish of Spalding for the year, and received his wages; but, upon cross-examination by the attorney for the appellants, he admitted, that, at the time of so hiring himself to Boston, he bargained for one day's holiday to go to Holbeach fair, and that he had such holiday in pursuance of the said bargain; but he denied that he made any bargain to have holidays at Spalding club-feast, and, in fact, he had not any such holidays. The attorney for the respondents contended, that, as the holiday for Holbeach fair formed no part of the grounds of appeal, the appellants could not go into it. The Court of Quarter Sessions, however, being of opinion that they were not precluded from receiving the pauper's evidence of the holiday for Holbeach fair, and treating that as an exceptive hiring, quashed the order, subject to the opinion of the Court of King's Bench whether, by section 81 of the statute 4 & 5 Will. 4. c. 76, and by the grounds of appeal hereinbefore set forth, they were precluded from receiving such evidence, and if they were, the order was to be quashed.

Amos, in support of the order of Sessions, submitted, that the Sessions were right in not considering themselves precluded from receiving the pauper's evidence as to the holiday for Holbeach fair, which made it a case of exceptive hiring. The ground of appeal, which was stated with the notice, was, that it was an exceptive hiring; and, whether it was so by reason of having holidays for Spalding club or for Holbeach fair, would make no difference. The proof was of an exceptive hiring, and the Court below were satisfied that it was so,-will this Court, then, interfere?

LORD DENMAN, C.J.-If they had stated only, as a ground of appeal, that the hiring with John Boston was an exceptive hiring, in all probability that would have been sufficient to have enabled them to go into the evidence offered in this case; but they particularize the contract with the master, upon which they ground their objection of its being exceptive, which contract they do not prove, but prove something else. It is easy to suppose a case where the additional statement might be put there, in order to mislead. We think it quite clear, that we

apprenticeship, hiring and service, or what other mode, so that it might have appeared on the examination. If the Court are to say that this loose and general statement on the examination, is sufficient to enable the removing parish to go into evidence of the means by which he became settled, no information is conveyed to the overseers of the appellant parish whatever, and the Court will not be fulfilling the intention of the act of parliament.

[COLERIDGE, J.-Suppose, on the examination it had been stated, that the pauper's father was settled in the parish of Colsterworth, would you prevent the overseers of the removing parish from going into any evidence as to how he was settled?]

It is apprehended that that would be no examination under the act.

Knox, contrà, with whom was C. R. Turner, was stopped by the Court.

LORD DENMAN, C.J.-The act of parliament might have required a statement of the grounds of removal to be sent by the respondent parish, and might have thus thrown upon the respondents the same strictness as to that statement, as is by the act thrown upon the appellants, in the statement of the grounds upon which they appeal. It has not, however, thought proper to do so, and the reason appears pretty obvious. The appellants know the grounds upon which they appeal; and they can state, in their own language, what those grounds are. The order proceeds upon the examination of the pauper, and all that is required of the respondent parish is to send the examination upon which the order was obtained. All that was required of the respondents has been done in this case, and they ought to have been permitted to go into evidence of the settlement.

PATTESON, J.-I am of the same opinion. The appellants, in the statement of their ground of appeal, have treated the examination as conveying to them an intention, on the part of the respondents, to prove a settlement of the pauper's father in the parish of Colsterworth, and that he was a certificated man from that parish.

WILLIAMS, J.-I am also of the same opinion. Whether the examination was properly taken is quite immaterial. The examination was taken; and such as it was,

it was sent with the order of removal to the appellant parish. Then, did the respondent parish attempt to travel out of the ground of removal as it appeared upon the examination? In the statement by the appellants of the ground of appeal, the appellants say, that the pauper's father never was settled in the parish of Colsterworth, nor was there ever any certificate granted; so that they understood the ground on which the order of removal was obtained to be, that the pauper's father was there settled, and was a certificated man when residing at Kelvedon.

COLERIDGE, J.-There is a great difference in the language of the statute as applicable to the statement of the grounds of appeal by the appellant, and the sending of the examination by the respondent parish. The legislature have taken care that the appellants should not be prejudiced by any looseness or generality of statement in the examination, by enacting, that no removal shall take place till after the expiration of twenty-one days after notice of chargeability, and in the meantime free access is given to the appellants to the pauper; and, if the generality of the examination is such as to give them but little information, they have an opportunity of obviating that by inquiry more particularly of the pauper himself as to the nature of his settlement.

1836.

Order quashed. The case to go back to Sessions to be heard.

Nov. 16. S

THE KING V. THE INHABITANTS
OF HOLBEACH.

Poor Law Amendment Act, 4 & 5 Will. 4. c. 76.-Appeal, Statement of Grounds.

Where the ground of appeal was stated to be, that the pauper, at the time when he hired himself (as stated in the examination) and before the completion of the bargain, stipulated with his master, that out of his year's service he should be allowed to have two days holidays at Spalding club-feast, in the month of July, and that the pauper was allowed and did take and absent himself from his master's service during the said two days accordingly:-Held, that it was not competent for the appellants, under that notice, to prove a bargain for one