The primary object of the legislature was to obviate the hardship of removing persons to a distance after a certain amount of permanent residence in one district. In the present case, the pauper having continuously resided for more than a year is primâ facie irremoveable, as she comes within the enacting part of the statutes; and whatever the proviso, 11 & 12 Vict. c. 111, s. 1, may mean, there can be no doubt that its only object was to prevent the separation of husband and wife, leaving the law otherwise as to irremoveability as it was. In Rex. v. Cottingham (7 B. & C. 615) a woman, married to a foreigner without a settlement and deserted by him, was held removeable to her maiden settlement; in other words, she was to be treated as if she were unmarried or a widow; and the same principle must apply to a status of irremoveability.

[He also referred to R-g. v. Bennett (3 E. & B. 341; 23 L. J. (M.C.) 39) and Reg. v. St. Sepulchre (1 E. & E. 813; 28 L. J. (M.C.) 187).]

Poland (Poynter with him), for the respondents. On marriage the wife's status is merged in that of the husband, and she therefore loses her status of irremoveability. In Much Hoole v. Preston (17 Q. B. 548; 21 L. J. (M.C) 1) a woman settled in A., and, having lived for more than five years in B. with her husband, an Irishman without a settlement, was deserted by him, and it was held that she was removeable from B. to A.

[BLACKBURN, J. There, the husband had ceased to reside in B.]

In Reg. v. St. Marylebone (16 Q. B. 352, 356; 20 L J. (M.C.) 61, 63), where the wife became chargeable during the temporary absence, in the ordinary course of his employment, of her husband, a foreign sailor without a settlement (as here), it was held that the absence of the husband, without leaving the wife means of maintenance, was equivalent to desertion, and that the wife might be removed to her maiden settlement; and Lord Campbell, C.J., says: "There is no hardship in thus removing the wife; when the husband returns to this country he will find her in the parish to which she has been removed, and he may live with her in that parish or in any other." Where husband and wife are living together, no doubt, the principle of the common law was, and of the statutes may be taken to be, that they should not be separated; and this was the reason of the enactment of the proviso in 11 & 12 Vict. c. 111, s. 1, which means that the wife's irremoveability by reason of residence, should depend, not on her own residence, but on the residence of her husband.

[BLACKBURN, J. In Reg. v. Glossop (12 Q. B. 117; 17 L. J. (M.C.) 171) it was held that the residence of a woman as a wife might be counted in estimating the five years' residence, under 9 & 10 Vict. c. 66.]

There the woman had become sui juris as a widow, and was within the enacting part of

the statute, and the proviso could not apply as she was no longer a wife. But, during coverture, the wife can acquire no status of her own.

[MELLOR, J. She is within the enacting part, unless the proviso, as amended by 11 & 12 Vict. c. 111, applies. But the wife here has a settlement of her own, which may be said, therefore, to be other than her husband's, who has none.]

It can scarcely be said that the wife has a settlement other than her husband's, if he has none. Moreover, the words, "having no other settlement than his or her own," applies to the children only; the wife always has the same settlement as her husband.

[HANNEN, J. Except in this very case where the husband has none.]

If it be decided that the wife can acquire a status of irremoveability by her own residence during coverture, irrespective of her husband's residence, the converse must follow, and a wife, becoming chargeable during the absence of her husband, if she has not resided a year, will be removeable, although she may have married a man who has a status of irremoveability.

BLACKBURN, J. The legislature have certainly used language adapted to conceal their intention. But I think I can see my way plainly to saying that the quarter sessions were right in quashing this order of removal. We must consider how the matter stood before the passing of 9 & 10 Vict. c. 66. A person who had got a settlement, if he became chargeable to another parish, might be removed, however long he might have resided in the other parish, to his place of settlement; and if he were married, his settlement became his wife's, so that both could be removed to his place of settlement. But if a person had not acquired a settlement, he could not be removed; therefore, if the husband had no settlement, and the wife had one, and they were residing together, neither could be removed, the principle being that husband and wife should not be separated; but when the husband was de facto separate from the wife, and she became chargeable, she could be removed to her maiden settlement. Then came 9 & 10 Vict. c. 66:-[the learned Judge read s. 1, and the proviso]. That proviso was repealed by 11 & 12 Vict. c. 111, s. 1, and was re-enacted in the following words: [the learned Judge read the section]. The question is, what is the meaning of this proviso. Mr. Poland asks us to read the words "having no other settlement than his or her own," as applying to children only, and not applying to a wife; but it is clear that we cannot so confine the words. The whole sentence must be taken together, and grammatically, the words must apply to a wife as well as children; and so reading them, the legislature, in the enactment and proviso, would seem to say this: In establish

ing the status of irremoveability, we leave the common law principle untouched, that husband and wife shall not be separated, and therefore when the husband has a settlement, and is removeable, the wife, though she has resided sufficiently long to have become irremoveable, shall be removed with him; and vice versâ, if the husband is irremoveable, neither shall the wife be removed; but if the wife has a settlement, and the husband has no settlement, we say nothing as to when the wife is to be removed to her own settlement. This, therefore, would seem to leave a wife, whose husband had no settlement and has left her, but who has acquired a status of irremoveability by her own personal residence, within the enactment and not within the proviso. In Reg. v. Glossop (12 Q. B. 117; 17 L. J. (M.C.) 171) it was held that a woman, who had resided for five years continuously as wife and widow in the same parish, had acquired a status of irremoveability by actual residence, although part of the residence was when she was a wife. That is applicable to the present case, and shews that the residence as wife may be united with the residence before marriage, and as the residence was continuous up to the time of receipt of relief, I cannot see why she is not within the enacting part of the statute. But it is said the wife falls within the proviso, because the husband had not resided a year before the relief was given. If he had a settlement, no doubt, the wife would be removeable to his place of settlement. But I am at a loss to see in that any foundation for the argument that, (the husband being irremoveable in point of fact if he were here with his wife, because he has no settlement), he not being here, you are to send the wife-notwithstanding her long residence-away from her husband's and her own place of residence to her place of settlement, merely because he has not resided a year. Whether the legislature had this case in their contemplation, or not, may be doubtful; but if they had intended to leave this case within the operation of the enacting part and out of the proviso, they would, as it seems to me, confine the proviso, as they have done, to the case of a wife having no settlement other than her husband's, and thus forbid her being taken away from the place of residence of her husband, although he may happen for the time to be absent from her. If on the other hand, we were to adopt the construction Mr. Poland invites us to adopt, and to say

that a married woman, under the present circumstances, could be removed, this iniquitous consequence would follow: that a woman living as a man's mistress would acquire the privilege of becoming irremoveable from his place of residence during his temporary absence, whereas the wife would have no such privilege, and would be removeable to her own place of settlement if the husband had no settlement, as was decided in Reg. v. St. Marylebone (16 Q. B. 352; 20 L. J. (M.C.) 61), independently of 9 & 10 Vict. c. 66. As to the case put of a husband with a status of irremoveability and a wife without it, and the wife becoming chargeable in the husband's absence, it is sufficient to say, that if the consequences suggested follow, it would involve hardship; but we must deal with such a case if it should arise, and we need not now say how it ought to be decided; probably, however, the law may be altogether altered before it does arise.

MELLOR, J. We must look at the policy of the Acts of Parliament, which was to prevent the oppression of removing a person from the place in which he had resided a considerable time (formerly five years, now one year), and breaking up all the associations and acquaintances he had made in that place; and I must see my way very clearly before I arrive at a decision which would interfere with a policy so consistent with humanity; and where a woman, who has acquired a status of irremoveability, marries a man who has not acquired this status, and has no settlement, but resides with her until, in the exercise of his ordinary calling, he goes away, intending to return, I cannot help thinking we should act in direct violation of this principle were we to decide that, on becoming chargeable, she was removeable by reason of this proviso. I entirely agree that both provisos are somewhat unintelligible; but I think the most sensible construction to put upon the statutes is that which my Brother Blackburn has suggested.

HANNEN, J. I have only to say that I can see no reason for disturbing the decision of the quarter sessions.

Order of sessions affirmed.

Attorney for appellants: W. H. Swepstone. Attorneys for respondents: Stone, Townson, & Morris.

1 & 2 Wm. 4, c. 32.

By 1 & 2 Wm. 4, c. 32, s. 3, "if any person shall kill or take any game, or use any dog, gun, net, or other engine or instrument of destruction for the purpose of killing or taking any game on a Sunday," he shall, on conviction, be liable to a penalty.

The appellant was convicted for that he, on the 15th of August (being Sunday), did use He set snares for the purpose of killing game. the snares on the 13th and 14th of August, and on the 15th the snares were seen set ready to catch game, and two dead grouse were found caught in snares :—

Held, that a snare was an engine or instrument within the meaning of the section, and that putting down a snare on a day before Sunday, for the purpose of killing game, and keeping it set on Sunday, was using an engine or instrument on Sunday.

CASE stated by Justices under 20 & 21 Vict. c. 43.

An information was preferred by the respondent against the appellant, under s. 3 of 1 & 2 Wm. 4, c. 32 (1), charging for that the

(1) 1 & 2 Wm. 4, c. 32, s. 3:-"That if any person whatsoever shall kill or take any game, or use any dog, gun, net, or other engine or instrument for the purpose of killing or taking game on a Sunday or a Christmas Day, such person shall, on conviction thereof before two justices of the peace, forfeit and pay for every such offence such sum of money, not exceeding 51., as to the said justices shall seem meet, together with the costs of the conviction; and if any person whatsoever shall kill or take any partridge between the 1st day of February and the 1st day of September in any year, or any pheasant between the 1st day of February and the 1st day of October in any year, or any black game (except in the county of Somerset or Devon, or in the New Forest, in the county of Southampton), between the 10th day of December in any year and the 20th day of August in the succeeding year, or in the county of Somerset or Devon, or in the New Forest aforesaid, between the 10th day of December in any year and the 1st day of September in any succeeding year, or any grouse, commonly called red game, between the 10th day of December in any year and the 12th day of August in the succeeding year, or any bustard between the 1st day of March and the 1st day of September in any year, every such person shall; on conviction of any such offence before two justices of the peace, forfeit and pay for every head of game so killed or taken such sum of money, not exceeding 1., as to the said justices shall seem meet, together with the costs of the conviction. . ."

day), at the township of Bainbridge, in the North Riding of Yorkshire, did unlawfully use certain engines or instruments, to wit, snares, for the purpose of killing game, to wit grouse, in a certain allotment contrary to the form of the statute.

The justices convicted the appellant, and fined him 5s, and costs.

Upon the hearing of the information it was proved on the part of the respondent, and found as a fact, that the appellant was setting snares on the 13th and 14th of August in an allotment or pasture in the township of Bainbridge. There was no evidence to shew that the appellant was there on the 15th of August, but the respondent went into the allotment on that day, and saw fifty or sixty snares set ready to catch game, and found two dead grouse caught in two snares.

It was contended, on the part of the appellant, that the setting of the snares on the 13th and 14th of August, and not going on the land to examine them on the 15th of August, was not such a user as is contemplated by s. 3 of 1 & 2 Wm. 4, c. 32. It was also contended on his behalf that a snare or piece of wire such as was found set by the respondent, is not an engine or instrument within the meaning of that section.

It was admitted that the appellant had a It proper excise licence for killing game. was also admitted that the appellant had the consent of the owner and occupier of the land to sport over it.

The justices were of opinion that snares are engines or instruments within the meaning of s. 3, and are expressly used for and applicable to the destruction of game; that leaving the snare set on a Sunday for the purpose of killing game is a user within the meaning of the section; that 1 & 2 Wm. 4, c. 32, is not an Act for the observance of the Sabbath, but that s. 3 provides for the preserving game during certain days and seasons, and that it is a breach of the statute to use snares on a Sunday so that game may be killed by them.

The questions for the opinion of the Court were, first, whether it is an offence against s. 3 of 1 & 2 Wm. 4, c. 32, to set snares on a Saturday (or any other day except Sunday), and allow them to remain set so as to catch or entrap grouse on a Sunday. Secondly, whether a snare is an engine or instrument within the meaning of s. 3.

Holker, Q.C. (Macdonald with him), for the appellant. A snare is not an engine or instrument ejusdem generis with "dog, gun, or

net," neither was it used by the appellant on a Sunday within the meaning of s. 3. To bring the case within the section, it must be a manual user of an engine or instrument; or, at all events, the person must be present in order to use it. The statute was not passed for the preservation of game on a Sunday, but for preventing the desecration of the Sabbath; it is no offence, therefore, to set an engine on a Saturday and leave it set on Sunday. The case does not find that the appellant was there on Sunday. It never could have been intended that a man who lawfully put down snares for game on a Saturday is obliged to take them all up before Sunday morning.

The respondent did not appear.

BLACKBURN, J. The legislature have in s. 3 of 1 & 2 Wm. 4, c. 32, created two separate offences. The acts which constitute the two offences are different. In the first part of the section the killing or taking game, or using any instrument for the purpose of killing or taking game on Christmas Day and Sunday, is made an offence; in the other part it is the killing or taking any partridge, &c., during certain times of the year, which is the offence; and there can be no doubt that if a person on a Saturday night puts down a snare with the intention that it shall be in operation on Sunday, and kills or takes game on that day, it is an offence. Mr. Holker has argued that, in order to commit the offence of using a net or other instrument for the purpose of killing game, a person must be present with the

instrument using it; but it is clear that if a person intentionally causes the death of a grouse on a Sunday, he comes within the statute. Now, what the appellant did was, that he left the snares set on a Sunday, and we must take it that it was his intention that they should act in the way they would probably act, that is, kill game on the Sunday. I think that is using the snares on a Sunday. If he left a snare in such a state as to kill game, it is using it to kill game.

As to the other question, whether a snare is an engine or instrument ejusdem generis with dog, gun, or net, if it were made out that a personal use of the instrument were required by the terms of the section, the argument for the appellant might have weight. But the word engine, derived from ingenium, includes a snare which is a device or contrivance-an engine-for killing game.

MELLOR, J. I am of the same opinion.

LUSH, J. I am also of the same opinion. According to Mr. Holker's argument, there could not be a using of a snare longer than the moment during which it was being laid down; that cannot be the intention of the statute. The meaning of the section is, if any person puts down a snare and keeps it down, he is using it as long as he keeps it down. Conviction affirmed.

Attorney for appellant: W. P. Roberts.

May 12, 1870.

Arbitration-Award-Reference under 12 & 13 Vict. c. 45, s. 13-Costs.

On an appeal to quarter sessions it was ordered, under s. 13 of 12 & 13 Vict. c. 45, that "the matter in dispute" should be referred to arbitration. The arbitrator awarded that the appeal be dismissed, and that the appellants do pay to the respondents their costs of the appeal:

Held, that, as the order of reference was silent as to costs, the arbitrator had no power to aw.ird costs.

AN appeal had been entered at the Middlescx quarter sessions, between the appellants and the respondents, touching a rate made

dents shall be referred to John Gray, Q.C., to inquire into and arbitrate thereon, the several parties agreeing and consenting to abide the report of such his arbitration." On the 28th of January, 1870, the arbitrator made his award, and ordered "that the appeal be dismissed, and that the appellants do pay to the respondents their costs of the said appeal, to be taxed by the proper officer of the court of quarter sessions in the usual manner."

A rule was obtained calling on the respondents to shew cause why the award should not be set aside, or so much thereof as awards the payment of costs, or why the award should not be referred back to the arbitrator, on the ground that he had no jurisdiction to award costs.

The

Huddleston, Q.C., and Murphy, shewed cause. The arbitrator had power to award costs. The order of reference puts him in the place of the quarter sessions, and as they had power to award costs the arbitrator, inferentially, had the same power. terms of the order of reference are that "the matter in dispute" be referred, and those words include the costs of the appeal. Reg. V. Justices of West Riding (6 B. & S. 531; 34 L. J. (M.C.) 142), is distinguishable. There the order being silent as to costs, the Court decided that the respondents were not entitled to the costs of the reference and award. It is conceded that the arbitrator had no power over the costs of the reference and award, but he had over the costs of the appeal. In Watson on Awards, 3rd ed. p. 150, it is stated that where a cause is referred, the power of awarding on the costs of the cause is necessarily consequent on the authority conferred upon_the_arbitrator of determining the cause. So, also, in Russell on Awards, 2nd ed. p. 368, it is said "where a cause alone, or a cause and all matters in difference are referred, and nothing is said in the submission respecting costs, the arbitrator has an implied authority to adjudicate on the costs of the cause." Roe d. Wood v. Doe (2 T. R. 644), and Firth v. Robinson (1 B. & C. 277), are also authorities on this point. By analogy, on the reference of an appeal where the order is silent as to costs, the costs of the appeal follow the decision of the arbitrator.

66

[BLACKBURN, J. The sessions have power under s. 13 of 12 & 13 Vict. c. 45, to refer the appeal to an arbitrator upon such terms as the Court shall think reasonable." Leggo v. Young (16 C. B. 626; 24 L. J. (C.P.) 201), and Bell v. Postlethwaite (5 E. & B. 695; 25 L. J. (Q.B.) 63), decided on s. 3 of the Common Law Procedure Act, 1854, which is very nearly in similar terms, are authorities to shew that the arbitrator has no power over costs, unless he is expressly authorized by the terms of the reference.]

Field, Q.C., and Carter, in support of the rule were not heard.

COCKBURN, C.J. This rule must be made absolute, on the ground that the only thing referred by the court of quarter sessions to the arbitrator is "the matter in dispute" between the parties to the appeal. The right to costs is not the necessary consequence of success in the appeal, for by s. 5 of 12 & 13 Vict. c. 45, the power to grant costs by the court of quarter sessions is discretionary. Therefore it does not follow, that because the matter in dispute is decided one way or the other, the costs will follow the event. I think that where the power to award costs is discretionary in the court of quarter sessions, the order of reference must expressly give the arbitrator power to enable him to award costs. Here the order is silent as to costs. The cases of Bell v. Postlethwaite (5 E. & B. 695; 25 L. J. (Q.B.) 63), and Reg. v. Justices of West Kiding (6 B. & S. 531; 34 L. J. (M.C.) 142), are very nearly in point. But I rest my decision on the ground that it is discretionary, in the matter of an appeal, for the quarter sessions to give costs or not, and that such power was not in terms given to the arbitrator in the order of reference.

BLACKBURN, J. I am of the same opinion. On an appeal to the quarter sessions the Court can give costs at their discretion. Then, by s. 13 of 12 & 13 Vict. c. 45, it is enacted, that "it shall be lawful for any court of quarter sessions, before which any appeal... shall be brought, to order that the matter or matters of such appeal be referred to arbitration to such person or persons, and in such manner, and on such terms, as the said court shall think reasonable and proper." Therefore, the quarter sessions might make an order ordering in terms either that the costs of the appeal should abide the event of the award, or that the costs of the appeal should be in the discretion of the arbitrator. In this case does the order of reference contain any such terms? The order is, that "the matter in dispute shall be referred. Words are used out of which I cannot gather, even in a case where the costs would follow the event, an authority to the arbitrator to award them. In Bell v. Postlethwaite (5 E. & B. 695; 25 L. J. (Q.B.) 63), the arbitrator was appointed under s. 3 of the Common Law Procedure Act, 1854, by which a Judge has power to order a reference upon such terms as to costs as he shall think reasonable; the rule was silent as to costs, the parties supposing the costs would abide the event; the Court decided that they would not, and that the arbitrator had no power over the costs. I think the present case is stronger, and we cannot say that the quarter sessions gave

Р