1844.

WARD

v.

STEVENSON.

Kay v. Goodwin (a), Surtees v. Ellison (b). If the first statute is totally repealed as regards this offence, then the latter statute stands alone, and that statute gives no remedy by distress and sale. This is not a case where there is no other remedy; for, if the exposing of goods on the footway be prohibited, the offender may be indicted, or be sued in debt for the penalty by the treasurer appointed under the act. It is laid down in Dwarris on Statutes (c): "If a penalty be given by a statute, but no action for the recovery thereof be given, an action of debt will lie for the penalty."

Erle and Cowling, for the defendants.-The preamble of the 34 Geo. 3, c. 104, shews that the object is to amend and enlarge the provisions of the earlier statute, 28 Geo. 3, c. 64, not to repeal it. The nuisance is the same in both cases; the only difference is, that a penalty of 20s. is given instead of 10s. The intent of the legislature was only to alter the penalty; the offence was to remain the same, and the mode of enforcing it was to continue the same. As to the 21st and 22nd sections, relative to sweeping the footways and breaking lamps, the legislature has not only re-enacted the clauses of the former statute, but has made an alteration in the appropriation of the penalty, part being given to the informer, and part to the treaUnless the justices have the power which they claim, there does not appear to be any other remedy. In Rex v. Malland (d) it was held, that, where there is no appropriation of a statute penalty, it is a debt to the Crown, and suable for in a court of revenue, and that no indictment lies. The case of the Attorney-General v. Saggers and Wife (e) is analogous in principle. It was there held, that the 9 Anne, c. 11, imposing penalties on

surer.

(a) 6 Bing. 576.
(b) 9 B. & C. 750.
(c) Vol. 2, p. 677.

(d) Stra. 828.

(e) 1 Price, 182.

the importation of foreign goods, is prospective in construction and operation, and extends to all such goods as may be prohibited subsequently to that statute.

Gunning, in reply, was stopped by the Court.

Lord DENMAN, C. J.-We cannot possibly hold that this person was liable to distress for this penalty, without putting ourselves in the place of the legislature, and saying, that the 75th section of the former act, though repealed, is still in force.

PATTESON, WILLIAMS, and WIGHTMAN, JS., con

curred.

Judgment for the plaintiff.

1844.

WARD

v.

STEVENSON.

The QUEEN v. The Inhabitants of CATTERAL.

April 27th.

tions relating to

a hiring and service were as pauper came

UPON appeal against an order of two justices of the The examinacounty of Lancaster, dated 27th May, 1843, for the removal of William Nuttall and Mary Ann, his child, from the township of Catteral to the township of Dutton, both in the said county, the sessions quashed the order of removal, subject to the opinion of this Court on

a case.

to live with my

father as a farm

not engaged for

servant; he was

any particular time, but my

The material part of the examinations was as fol- father found

William Bourn said, "I am a farmer in the township

of Dilworth, in this county, and reside at a farm called

'Written Stone.' I was married in December, 1833.

him board, washing, lodg

ing, and clothes time as he tinued in my

for so long a

staid. He con

father's service,

I lived at home with my father for about a year and a in that manner,

without leav

ing, for two years, during all which time he lived and slept at my father's house:"-Held, insufficient, as no hiring was stated in, or could be inferred from, the examinations.

1844.

THE QUEEN

V.

Inhabitants of

CATTERAL.

half after my marriage, when I went to live at the farm I now reside at. My father's name is also William Bourn, and he lives at a farm in Dutton, in this county, called Gudgeons,' which he has lived upon for upwards of thirty years. Better than two years before

I was married, the pauper, William Nuttall, came to live with my father as a farm servant; he was not engaged for any particular time, but my father found him board, washing, lodging, and clothes for so long a time as he staid. He continued in my father's service, in that manner, without leaving, from the two years before I was married until after I left home to live at Written Stone Farm, during all which time he lived and slept at my father's farm in Dutton, and was a bachelor. There never was any other agreement come to whilst I lived at home; but my father found him with board, washing, clothing, and lodgings during the said service."

William Nuttall, the pauper, said, "Better than two years before the witness, W. Bourn, was married, I went to his father's, W. Bourn, of Dutton, farmer, as a farm servant. There was no agreement made as to the length of my service, but I was found with board, lodging, clothing, and washing whilst I staid. I continued in the service from the time I went until the witness, W. Bourn, left home to live at Written Stone Farm, being altogether upwards of three years and a half, during all which time my said master found me board, lodging, clothing, and washing, and I slept at his farm, and was a bachelor during such my servitude. I was lawfully married, about eighteen months ago, to Betsy, my late wife, and I have one child, our lawful issue."

The following were the grounds of appeal, duly served by the appellants on the respondents:

"That the examinations on which the said order of removal was made were not and are not in law sufficient to justify the making of the said order.

"That the examinations are bad upon the face of them, and do not state the necessary facts, from which it can or may or ought to be implied that the said William Nuttall did gain a settlement by hiring and service, as in the said examinations pretended.

"That there was not, in fact, any such hiring and service as in the examinations pretended."

At the hearing of the appeal, the respondents offered to produce evidence in support of their order, but the appellants objected that the examinations were insufficient, so that the order was incapable of being supported by any evidence. The sessions, after argument, and without hearing the evidence offered, set aside the order of removal for the insufficiency of the examinations, subject to the opinion of this Court as to the sufficiency of the examinations, as above set forth.

If this Court should be of opinion that the objections taken by the grounds of appeal, or any or either of them, ought to have prevailed, then the order of sessions setting aside the order of removal is to be confirmed. If this Court should be of the contrary opinion, then the order of sessions is to be quashed, and the order of removal confirmed.

Whigham, in support of the order of sessions.-The examinations contain no evidence of any hiring. Rex v. Wincaunton (a), and that class of cases, shew that where there has been a hiring, though indefinite as to time, a hiring for a year may be presumed; but this case was a mere going to live from day to day with the master, as in Rex v. Christ's Parish, York (b), where the pauper was to have his meat and clothes as long as he stayed, but was at liberty to quit at any moment; which rebutted the general presumption of a hiring for a year, arising

(a) Burr. S. C. 299. VOL. I.

N

(b) 3 B. & C. 459.

N. S. C.

1844.

THE QUEEN

v.

Inhabitants of
CATTERAL.

1844.

THE QUEEN

V.

Inhabitants of
CATTERAL.

from the general hiring. In Rex v. Lyth (a) it was held that a presumption in favour of a yearly hiring might be made from the fact of the continuance of the pauper in the service. Here, however, no such presumption is admissible, for we have the terms of the agreement itself; and, although it is not expressly stated, it is evident that Nuttal might have quitted the service at any moment; consequently there was no contract of hiring for a year.

The Court called upon

There

Cowling, contrà.—The examination states, that there was no other agreement than for board, washing, &c. That implies that there was some agreement. have been many decisions upon cases in husbandry, where the fact of hiring has been concluded from the length of service: Rex v. Stockbridge (b). And Rex v. Great Bowden (c) and Rex v. St. Andrew, Pershore (d), shew, that a general indefinite hiring is a hiring for a year, unless attended with circumstances which shew an intention to the contrary. It appears by the examinations, that there was some agreement, and, therefore, though the evidence may be weak, there is some on which the sessions should have acted.

Lord DENMAN, C. J.-There is no statement here that the pauper was hired, or contracted or agreed to stay with his master. It is a very different thing to infer a hiring for a year from a general hiring, and to infer a hiring from the fact of finding food and lodging.

PATTESON, J.-The proper construction of this agreement, as stated, is, that it was no contract of hiring at all.

WILLIAMS and WIGHTMAN, Js., concurred.

Order of sessions confirmed.