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mayor or other chief Magistrate of any city, LORD Denman, C.J.-I think this quesborough, &c.

tion perfectly clear. The Municipal Cor[Lord DENMAN, C.J.-If the statute of porations Act, 5 & 6 Will. 4. c. 76. s. 6, Eliz, meant only to give the mayor of a provides that the mayor of a borough shall borough power to appoint when there were be capable in law to do and suffer “all acts” no other Justices, there would of course be which the chief officer of such borough an end to the question ; but here there is might lawfully do and suffer at the time of another appointment by the Justices.] the passing of the statute. One of those

[COLERIDGE, J.-Do you contend that the acts was the appointment of overseers. That other Justices are altogether excluded ? If the mayor had such appointment is clear, so, they would be equally excluded if this when we look at the different sections of had been an act to be done at sessions.] the 43 Eliz. c. 2, by the 10th section of

The appointment by the mayor is at all which the mayor is liable to a fine of 51. events good. By the 43 Eliz. c. 2. s. 10. he if the appointment is not made. It is conis the person liable to the penalty of 51. if tended that the mayor is only one of the no nomination of overseers is made.

officers; but he is the person on whom the

duty is cast of making the appointment. Prentis, contrà.—Unless the case of The Lord Mansfield in The King v. Butler seems King v. Butler is now to be overruled, this to have had a strong feeling against the rule must be made absolute. Lord Mans- mayor having the command of these appointfield says, in that case, the statute only ments. If attention had been called to it means to give Justices in corporations, and at the time, the legislature might have made head officers where there are no Justices, an alteration ; but I think that case is no the same power as Justices in counties. authority whatever in support of this rule,

(Coleridge, J.-Do you contend that and the words of the statute of Eliz. are in the mayor has not the power to appoint themselves perfectly clear. overseers? This is an act to be done by the COLERIDGE, J.-I am entirely of the same Justices, and the mayor is a Justice; besides, opinion, and I think that the matter is made you must contend that, at all events, the perfectly clear by referring to the 8th and nomination is in the Justices not being 10th sections of the statute 43 Eliz. The bailiffs, as the 8th section uses the term legislature confers an authority, and imposes “bailiffs" expressly.]

a penalty if it is not exercised. Besides, it The bailiffs are always Justices. In The cannot be said that any one who is a JusKing v. Moor (3) the appointment was tice, but neither mayor, nor bailiff, comes made by two Justices, and no objection was within the words of the statute. made on that ground. So in The King v. WIGHTMAN, J.-Lord Mansfield appears Flisher (4).

in The King v. Butler to have proceeded [COLERIDGE, J.-The appointm in on the argument ab inconvenienti rather those cases was by the county Justices; in than on the words of the statute, and indeed The King v. Moore it is clear that Moore what he says is rather to be treated as obiter was an inhabitant of Hornsey, in Middlesex.] dicta than as an express decision (7). The King v. Towill (5) and The King v.

Rule discharged. Edward (6) are in point to shew that all the Justices of a borough used to appoint, and by the 17 Geo. 2. c. 38, s. 3. on the death of an overseer during his year of office, "two 1848. THE QUEEN V. THE INHABITANTS Justices” are to appoint another overseer. Nov. 11. S

[WIGHTMAN, J.-What effect do you give to the 10th section of the 43 Eliz. c. 2:

Order of Removal-Removability under who is finable in a borough in default of

9 & 10 Vict. c. 66. s.1-Disruption of Re

sidence. any appointment of overseers ?]

An order of removal, unappealed against, (3) Carth. 161. (4) Cald, 135; s.c. 1 Bott, P.L. 69.

and acted upon, puts an end to the residence (5) Ibid. (6) 1 W. Black. 637.

(7) Erle, J. had left the court.

OF THE CHAPELRY OF SEEND.

of the pauper in the parish from which he is at Camerton, she went to stay with her removed, however short the residence may sister-in-law, who resides there ; but the be in the parish to which he is removed. children removed under the order returned

Under an order of removal a pauper was, to Seend the same day, and went to the in May 1842, removed from S, where she had cottage and continued to reside there as resided twenty years in a house rented by before. The pauper Mary Janes remained herself, to c. She left one daughter in her in Camerton seven days, during the whole house at S; and her other children, who had of which time she lived at her sister's-in-law; been removed with her, returned on the day and after having attended the board of of the removal to S, and she herself returned guardians for the district in which Camerton there seven days after such removal, and is situate, she returned to Seend, and took resided in the said house at S. till February up her abode in the aforesaid furnished cot1817:—Held, that she was removable under tage, and continued to reside there under 9 & 10 Vict. c. 66. s. 1.

the aforesaid tenancy with her children,

until the making of the order which is the On appeal against an order of two Jus- subject of the present appeal. Mary Janes tices, dated the 11th of February 1847, for paid the whole year's rent for the cottage, the removal of Mary Janes and her two which accrued due in 1842; and no interchildren from the chapelry of Seend to the ruption took place in the yearly tenancy parish of Camerton, in the county of Somer- thereof, as between her and her landlord. set, the Sessions quashed the order, subject When Mary Janes was taken to Camerton, to the opinion of the Court upon the fol- under the aforesaid order of removal, she lowing

had the intention to return to Seend, if she CASE.

could, but did not intend to return there No question arose upon the order of unless she could get out-door relief from removal, the examination, the chargeability Camerton. When she went before the board of the paupers, the notice of chargeability, of guardians for the union as before menor the grounds of appeal, all of which, for tioned, on being asked by the chairman of the purposes of this case, were admitted to the board, whether she intended to stay in be correct. The point in dispute was the Camerton ? she replied she should like to true construction of the 1st section of 9 & go back to Seend on account of her children, 10 Vict. c. 66, and with reference to this it who were left there; and the board told her was proved that the pauper, Mary Janes, she should be allowed 4s. per week by the was a widow, and had remained in the cha- parish of Camerton; and that sum was pelry of Seend for upwards of eighteen accordingly paid to her at Seend, from that years up to the year 1842, when she, with time until the 12th day of November 1846, four children, became chargeable to Seend, when the payment was discontinued. Upon and was removed from the said chapelry, these facts it was contended, on the part of under an order of removal, bearing date the the appellants, that the pauper had resided 3rd of May 1842, to the said parish of in the chapelry of Seend for five years next Camerton. At that time she was tenant before the application for the order of refrom year to year of a cottage in Seend, of moval, which is the subject of this appeal, which she and her family were the sole and was, consequently, irremovable. On occupants. She paid 5l. per annum for the other side, it was contended that the the cottage, and it contained furniture, which effect of the order of removal of the 3rd of belonged to the pauper Mary Janes. She May 1842, executed and unappealed from, and her husband, in his lifetime, had resided was to break the continuity of the residence in this cottage, under the tenancy aforesaid, of the pauper, and that the pauper was, confor upwards of twenty years previous to the sequently, removable under the order now removal aforesaid, to Camerton in 1842. in dispute.' The Court of Quarter Sessions When Mary Janes and her four children were decided that the pauper was irremovable, removed under the said order of removal to and quashed the order. If the Court of Camerton, she left an unmarried daughter, Queen's Bench should be of opinion that the twenty-two years of age, in charge of the judgment of the Court of Quarter Sessions cottage and furniture ; and, on her arrival was right, the order of Sessions was to be confirmed ; if otherwise, the order of Ses. Held, that the circumstance of his absence sions to be quashed, and the order of removal did not prevent their being removable to the to be confirmed.

place of his settlement. Hadow, in support of the order of Sessions. - It is undoubtedly difficult to distinguish On appeal to the Sessions for the borough this case from that of The Queen v. the In- of Cambridge, against an order of two Jushabitants of Halifax (1); but there has tices, dated the 29th of April 1847, for the been no disruption of residence in point of removal of Mary Elsbury and her three fact : the question is whether the order of children from the parish of St. Andrew removal amounts to a disruption of resi- the Less, in the said borough, to the parish dence by operation of law. It is not a of St. Ebbe, Oxford, the Recorder quashed dissolution of the contract of hiringThe the order, subject to a case, which stated King v. the Inhabitants of Fillongley (2), that, on the trial of the said appeal, it was The King v. the Inhabitants of Barham (3). proved that John Thomas Elsbury came to Ball, contrà, was not called upon. reside in the said parish of St. Andrew the

Less at Midsummer 1846, with the said LORD Denman, C.J.-The order of Ses- Mary his wife, and the said three children, sions must be quashed. The removal from being the legitimate children of the said J. T. Seend to Camerton was altogether incon- Elsbury and Mary his wife; that he and sistent with the idea of the pauper's residence they resided there from Midsummer 1846 in Seend. The animus revertendi, on the till March 1847, when he deserted them as part of the pauper, was subject to the right hereinafter stated ; that the said Mary Elsof the parish officers to allow her to return. bury, and the said three children continued WIGHTMAN, J. concurred.

to reside in the said parish of St. Andrew ERLE, J.-I am of the same opinion. the Less from the time of such desertion The object of the statute 13 & 14 Car. 2, until and at the time of the making of the by which the power of removal was given, said order; that the said J. T. Elsbury was to prevent a pauper becoming an inha- had, before the application for the said bitant.

order, deserted from his said wife and chil. Order of Sessions quashed. dren ; that, at the time of the said appli

cation for and of making the same order, and at the time of hearing the said appeal,

the said J. T. Elsbury still continued absent 1848. THE QUEEN V. THE INHABIT- from his said wife and children ; that, at Nov. 15.

ANTS OF ST. EBBE, OXFORD. the time of applying for and making the Order of Removal-Removability under

said order, and from thence up to and at 9 f. 10 Vict. c. 66. s. 1— Proviso-Baron

the time of hearing the said appeal, the said

J. T. Elsbury was not residing or inhabiting and Feme-Parent and Child.

in the said parish of St. Andrew the Less; The second proviso in stat. 9 & 10 Vict. that the residence of the said J. T. Elsbury c. 66. s. 1, that the wife or children are to be was unknown ; that the said J. T. Elsbury removable whenever the husband or parent was settled in the said parish of Saint Ebbe, is removable, and vice versâ, must be and that the said Mary and the said children construed with reference to cases where such had no other settlement than the said settlehusband or parent is removable by law, and ment of the said J. T. Elsbury, and were does not render a wife or children irremovable removed by the said order to the said settlein cases where the husband or parent cannot ment of the said J. T. Elsbury. practically be removed, by reason of absence On behalf of the appellants, it was objected from the parish or other cause; and there- that inasmuch as the said J. T. Elsbury was fore, where a husband who had not resided not, at the time of applying for, and making five years in a parish deserted his wife and

the said order, inhabiting or residing in the children, and they became chargeable, said parish of St. Andrew the Less, the said

J. T. Elsbury was not removable from the (1) 17 Law J. Rep. (N.s.) M.C. 158. (2) 2 Term Rep. 709.

same parish, and that, therefore, under and (3) 8 B. & C. 99; s.c. 6 Law J. Rep. M.C. 78. by virtue of the 9 & 10 Vict. c. 66, the said

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1

wife and children of the said J. T. Elsbury without the husband or parent; it does not were not removable from the same parish. refer to the previous enactment, as it uses The Recorder held that the said wife and the terms “any person," not "such person.” children of the said J. T. Elsbury were - Dwarris on Statutes, p. 719, Johnes v. removable from the said parish of St. An- Johnes (4), Atcheson v. Everitt (5), Bloxam drew the Less. If the Court should be of v. Elsee (6). opinion that the said Mary Elsbury and the [COLERIDGE, J.--The late act, 11 & said three children were, under the above- 12 Vict. c. 111, though it does not apply mentioned circumstances, removable from to the case, notice of appeal having been the said parish of St. Andrew the Less, then given before it passed, may yet serve to the said order to be confirmed, otherwise to shew the opinion of the legislature on the be quashed.

construction of the clause in question, as it Worlledge, in support of the order of Ses- recites that “ doubts existed as to its meansions. This question turns on the proviso ing."] in the 1st section of 9 & 10 Vict. c. 66, that, It may also be argued that the legislature “whenever any person shall have a wife thought that they could not carry out that and children, having no other settlement meaning without a new enactment. than his or her own, such wife and children shall be removable whenever he or she is LORD DENMAN, C.J.-I am of opinion removable, and shall not be removable when that the order of Sessions must be confirmed. he or she is not removable;' and the effect We must read the proviso and enactment of it is to make a woman long resident in together; and when the legislature, after the parish removable if she marries a man the previous enactment as to removability, who has only lately come to the parish. provides generally that the wife shall be Here there has been no sufficient residence removable, where the husband is so, it is to satisfy the statute, either by the husband clear that it is intended that if the husband or wife; and, therefore, according to The would by law be removable, the wife within Queen v. the Inhabitants of Salford (1), the terms of the proviso is removable also. there is nothing for the proviso to operate The accidental circumstance of the husband upon. It is a principle of our law, and being absent does not affect the question. especially of the New Poor Law, not to COLERIDGE, J. - This being a proviso, it separate man and wife; and yet the argument must be treated, as all provisoes are treated, on the other side would lead to a contrary as referring to the preceding enactment, doctrine, by preventing the wife being re- and must be construed together with it. moved, together with her husband. The Looking then at the two together no doubt husband, in this case, was legally removable, can exist in the present case. Under certain although, by reason of his absence, he may circumstances a five years' residence does pot practically have been so.

not create irremovability; and where the Naylor and Metcalfe, contrà.-In order husband might be by reason of the earlier to remove the wife it must be shewn that provisions of the section removable, it bethe husband is actually removable also came necessary to say what was to be under the circumstances. In The Queen v. done with the wife and child. If the husthe Inhabitants of Stogumber (2), the hus- band is irremovable, they, of course, are so band was in prison, and the Court would also; but if the husband, as in this case, is not allow the wife to be removed ; and there removable within the former provisions of is no consent on the part of the wife-The the act of parliament, the wife and children Queen v. the Inhabitants of Leeds (3). The are so also. second proviso in the 9 & 10 Vict. c. 66. WIGHTMAN, J.-I am of the same opinion. s. 1, operates as a distinct enactment, that The husband is not to be considered irrethe wife and children shall not be removed movable, because the parish officers cannot

find him, in order to remove him. (1) 17 Law J. Rep. (n.s.) M.C. 170.

Erle, J.-I am of the same opinion. (2) 9 Ad. & E. 622; s. c. 8 Law J. Rep. (N.s.) M.C. 20.

(4) 3 Dowl. P.C. 15. (3) 5 Q.B. Rep. 916; s.c. 13 Law J. Rep. (N.s.) (5) Cowp. 382. M.C. 107.

(6) 6 B. & C. 169; s.c. 5 Law J. Rep. K.B. 104.

}

Taking this case of a wife, which is one of of chargeability was signed by the defenthe instances given by the legislature, the dant, then one of the overseers of Manchesquestion is, was the husband legally liable ter, and by divers other overseers thereof, to be removed ? We cannot consider the and sent together with a copy of the order exact spot where the husband may happen and examinations to the overseers of Shefto be.

field ; and that afterwards the overscers of Order of Sessions confirmed. Sheffield, to wit, on &c., commenced their

appeal against the said order, and that such proceedings were thereupon had that the

said appeal was duly prosecuted, and came 1848.

on in due form of law to be heard, and was THE QUEEN V. COOPER. Dec. 4. S

heard at the General Quarter Sessions of the Indictment Order of Removal Re

Peace holden in and for the borough of

Manchester, on the 4th of January 1847, moving Pauper before Appeal determined

before the Recorder of the said borough, at Overseer.

which said General Quarter Sessions the It is not an indictable offence if an over

said order of Justices was confirmed, subject seer (without fraud or menace) remove a to a certain case for the opinion of the Court pauper under an order after it has been con- of Queen's Bench-[the case was then set firmed on appeal by the Sessions, subject to out at length]. That the overseers of Shefthe opinion of the Queen's Bench, and before field never agreed to submit to the said order its final determination by that Court,

of Justices, and that after the making of the

said order of Quarter Sessions, and before Indictment. The first count stated that, the final determination of the appeal, the on the 16th of October 1846, one M. Lye defendant still remained and was overseer of and her three children were inhabiting in the said township of Manchester for a long the township of Manchester, in the county time, until the 12th of January 1847, and of Lancaster, and had then become and that the said M. Lye and her children were chargeable to the said township, the had not before the 12th of January 1847 said township of Manchester being liable to been removed from the township of Manmaintain its own poor; and that after the chester, but had been still resident there said M. Lye and her said children had so from the time when the said order was apbecome and were chargeable as aforesaid, plied for until the 12th of January 1847. the overseers of the poor of the said town- That the defendant had notice of all the ship of Manchester for the time being, made premises, and that he then being such overcomplaint to T. T. and D. P. then being seer of the poor of Manchester, and having two of her Majesty's Justices of the Peace no regard to his duty as such overseer, but in and for the said borough of Manchester intending to disobey and actually disobeying (stating a complaint to authorize an order of the said order of Justices, and intending, &c. removal); that the said Justices proceeded to injure the said M. Lye and her children, in the matter of the said complaint and heard and to aggrieve the inhabitants of Sheffield, evidence thereon, and made an order ad- and to cast on them the charge of mainjudging the place of the last legal settlement taining the said M. Lye and her children, of the said M. Lye and her said children to did, on the 12th of January 1847, with force be in the parish, township, or place of Shef- and arms, and wickedly and maliciously, field, in the West Riding of the county of and without any lawful warrant or authority, York (setting out the order, which directed remove and convey the said M. Lye and that if no notice of appeal were given within her said three children from and out of the twenty-one days after service of the order, said township of Manchester to the said town&c. the overseers of Manchester should ship of Sheffield, and did then deliver them remove the paupers after the expiration of to one T. L, then being one of the overseers such twenty-one days, but if notice of appeal of the poor of the said township of Sheffield, should be given within twenty-one days then to the great damage of the said M. Lye and after the final determination of the appeal, if her said children, in manifest violation of the the same should be confirmed). That notice liberties of the subjects of our Lady the

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