Birth Settlement-Residence Appeal, Grounds of Removal of Widow to Maiden Settlement-Complaint by Overseers.

Under a ground of appeal stating that the examinations were defective, for not shewing by sufficient statement of facts that the pauper at the time the order of removal was made, was chargeable to the respondent parish:-Held, that the appellants were not entitled to object that the examinations did not shew the residence of the pauper in the respondent parish.

A birth settlement does not require a residence of forty days to complete it.

An order of removal (made upon the complaint of the overseers of S.) described the pauper as the widow of J. L, and removed her to W, which the examinations shewed to be the place of her maiden settlement:Held, that the examinations supported the order of removal, the latter furnishing no evidence of the settlement of J. L. the husband, and that no inquiry into the place of his settlement was necessary.

Held, also, that the statement of the complaint was sufficient.

On appeal against an order of two Justices for the removal of Mary Lewis, widow, from the parish of St. John, Hackney, to the parish of Watford, in the county of NEW SERIES, XVI.-MAG. CAS.

Herts, the Sessions for Middlesex confirmed the order, subject to the opinion of this Court upon a CASE, the material parts of which were as follows:-The order of removal recited, that complaint had been made to the Justices making the order, "by the overseers of the poor of the parish of St. John, at Hackney, that Maria Lewis, widow, had come to inhabit," &c. The heading of the examination of Maria Lewis the pauper, described her as "of the parish of St. John, at Hackney," and as "the widow of James Lewis, deceased." The examination was as follows:-"The said Maria Lewis saith, that she does not know the place of legal settlement of her said late husband James Lewis, deceased. That she has never done any act to gain a legal settlement in her own right. That she is now actually become chargeable to, and been relieved by the parish of St. John, at Hackney, for several weeks last past, with money and bread, and with 1s. on the day of the date of this her examination" (the day on which the order of removal was made). The examination of W. Batlew proved the birth of the pauper Maria Lewis, in the parish of Watford, but did not shew that she had ever resided in Watford forty days. The examination of Joseph Dorsett, relieving officer of the Hackney Union, was as follows:-"The said Maria Lewis is chargeable to and has been relieved by the parish of St. John, at Hackney, &c. with bread

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and money for several weeks last past, and with 18. on this 11th day of December 1844."

The grounds of appeal against the order, so far as the same related to the sufficiency of the examinations, were, first, that the examinations are bad, defective, and insufficient on the face thereof respectively, and fail and omit to shew by sufficient statement of facts, and by proper and legal evidence of such facts, that Maria Lewis was, at the time the order was made, actually chargeable to the parish of St. John, at Hackney. Secondly, that the examinations are insufficient to support the order, inasmuch as they fail and omit to shew that Maria Lewis ever inhabited in the parish of Watford, for the space of forty days at the least, so as to gain a settlement there. Thirdly, that the examinations are also insufficient to support the order, inasmuch as they contain no evidence whatever tending to shew any settlement in the parish of Watford of James Lewis, named as the husband of Maria Lewis, in her examination, or that James Lewis ever was settled in the parish of Watford. Fourthly, that the examinations are also insufficient, &c., inasmuch as they fail to shew that the place of the last legal settlement of James Lewis, mentioned as the late husband of Maria Lewis, in her examination, is unknown, and cannot be ascertained.

When the appeal came on to be heard, the appellants insisted that the order of removal ought to be quashed on account of the insufficiency of the examinations, as pointed out in each of the above four grounds of appeal. The Sessions overruled each of these objections, held the examinations sufficient, and confirmed the order of removal, subject to the decision of this Court. The appellants also insisted that the order of removal was bad, for not shewing on its face that it was made on a sufficient complaint by parish officers having authority to complain in such behalf. The Sessions overruled this objection also, subject to the opinion of this Court. this Court should be of opinion that the above objections or any one or more of them ought to have been allowed by the Court of Quarter Sessions, then the order of removal, and the order of Sessions confirming the same, were to be severally

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quashed, otherwise the same were to stand affirmed.

Prendergast (Montagu Chambers with him), in support of the order of Sessions.-First, the examinations sufficiently shew the chargeability of the pauper. She is stated to be "of the parish of St. John, at Hackney," where her evidence was given, and to have received relief from that parish on that day. This statement of chargeability imports inhabitancy — The Queen v. the Inhabitants of Rotherham (1). Secondly, the pauper is removed to the place of her birth. No residence, in such case, is necessary. Birth itself, alone, gave a settlement, without residence, by the statutes 12 Rich. 2. c. 7. and 1 Jac. 1. c. 7. (2), before the statute 13 & 14 Car. 2. The resolution of the Judges of Assize in 1633 (3), was, that "every one who is settled as a native, householder, sojourner, an apprentice, or servant retained for one month at the least, shall be held to be settled." Whether the word "retained" confines the necessity of residence to the case of a servant only, as suggested by Mr. Nolan (4), or not, the word is at least inapplicable to the case of a "native." And, with the exception of the word "retained," the words of the resolution of the Judges are the same as those of the statute 13 & 14 Car. 2. c. 12. That statute, therefore, did not alter the previous law in this respect, or render residence necessary in the case of a birth settlement. And the universal practice and interpretation of the statute since the time it passed, has been to consider residence, in such a case, unnecessary. Nolan says (p. 289), "The methods of acquiring a settlement may be divided into two general classes-first, such as are communicated without a residence of forty days, which may be called derivative settlements, and are, marriage, parentage, and birth. Secondly, where residence of forty days is necessary, which may be called acquired settlements." And Burn, tit. Poor,' vol. 4. p. 411, after observing that "a settlement by birth seems to be founded on the 13 & 14 Car. 2. c. 12; and,

therefore, it would seem that a residence of forty days is essential to the acquisition of a birth settlement," goes on to say, "But there is no decision to this effect; and the tacit convention of parishes not to insist upon it would most probably induce the Court to overrule such an objection, if it were now attempted to be set up"-Spitalfields v. St. Andrew's, Holborn (5), The King v. St. Mary's, Leicester (6), Cripplegate v. St. Saviour's (7). Thirdly, as to the settlement of the husband, it was unnecessary to notice it at all-The Queen v. the Churchwardens of Birmingham (8). (He was then stopped.)

Pashley, contrà.-First, the evidence of chargeability is insufficient, inasmuch as it does not shew the inhabitancy of the pauper in the removing parish. It is necessary that there should be a distinct averment of the inhabitancy of the pauper at the time the order of removal is made. Nothing is to be left to implication-The Queen v. St. Sepulchre, Northampton (9). Inhabitancy, therefore, cannot be inferred from chargeability.

[Prendergast. This objection is not raised by the grounds of appeal.]

Secondly, the power to make the order of removal is derived entirely from the statute 13 & 14 Car. 2. c. 12. And the words of that statute only authorize the Justices to remove paupers to the parish where "they were last legally settled, either as a native, householder, sojourner, apprentice, or servant, for the space of forty days at the least." These words, "for the space of forty days," override and refer to each and every of the antecedents mentioned, as well "a native" as 66 an apprentice or servant." [COLERIDGE, J.-What is the meaning of being a "native for forty days"?]

It is "settled as a native for forty days;" that is, having resided, being a native, for forty days, and so having become settled.

[ERLE, J.-What then did the party get by being a native? For if he sojourned for forty days, whether a native or not, that alone would give him the settlement.]

The words of the statute, in their natural and grammatical construction, make the residence as necessary in the one case as the other, and the "tacit convention of parishes not to insist on this objection," (as mentioned by Burn,) for however long a time, cannot prevail against the express enactment of the legislature. Thirdly, the pauper is removed as the "widow of James Lewis." This order of removal would be some evidence of her husband's settlement-The King v. the Inhabitants of Rudgeley (10), The King v. the Justices of the West Riding (Keighley v. Wilsden) (11). It was therefore the duty of the respondents to ascertain that settlement, and remove upon it. Lastly, the complaint is made by the overseers only. It should have been by the churchwardens and overseers, or by some on behalf of the parish officers-The King v. Fairfax (12), The Queen v. the Inhabitants of Bedingham (13).

LORD DENMAN, C.J.-It appears to me that none of the objections raised by these grounds of appeal can prevail. The first is, that the examinations do not shew, by proper evidence, that the pauper was chargeable to the removing parish at the time the order was made. In common sense I can only read this ground of appeal as stating that the appellants consider the examinations to be imperfect, because the fact of chargeability does not therein appear. If it had been meant to contend that the pauper could not, upon the facts stated, be chargeable, because the residence in the removing parish did not appear, it ought to have been so stated in the ground of appeal. That would have been a different objection altogether. It should be well understood that parties go to trial upon the issues raised by the objections stated in the grounds of appeal; and it is unjust and unfair to attempt, after specially pointing out the objections to the examinations, and so directing the attention of the respondents to those points only, to catch them by objections, which are not disclosed by the ground of appeal, fairly interpreted. The second ground of appeal, that the pauper never

(10) 8 Term Rep. 620.

(11) 2 Q.B. Rep. 331. (12) 3 Mod. 271.

(13) 13 Law J. Rep. (N.s.) M.C. 75.