1844.

THE QUEEN

V.

Lord HASTINGS.

must be discharged. It seems to me that this party cannot come to us to ask us to compel the sessions to give him costs, when he has himself prevented their jurisdiction. I found my opinion upon the express words

of the statute: there has not been here such a notice as is required by the 73rd section of the 4 & 5 Will. 4, c. 76.

PATTESON, J.-I am of the same opinion. I think, as it was not proved before the justices at petty sessions, that the proper parties had given the notice required by the 4 & 5 Will. 4, c. 76, s. 73, that the case is not brought within that statute: the party applying to us first prevents the justices hearing the case, because there was no notice, and then, in order to enable him to get his costs, he maintains that they did hear the case.

The cases cited are distinguishable. In Rex v. Stamper (a) the case was called on in its order, and though the parish officers did not appear, yet the calling on of the case, and the appearance of the other party to resist the application, was held to be a sufficient hearing. In Regina v. The Recorder of Exeter (b) the application was made by the wrong parties.

WILLIAMS, J.-I think that in this case the justices have exercised a sound discretion, and I should be very much disinclined to undo what they have done. But I do not think that the cases referred to are any authority to induce us to interfere here: I ground my opinion upon the express words of the statute in question, which require "a hearing." It is too much for a party to say at the sessions, that the case cannot be heard because he has received no notice, and then to come here to ask for costs, on the ground that it has been heard.

(a) 1 Q. B. R. 119.

(b) 3 G. & D. 167.

WIGHTMAN, J.-I am of the same opinion; which I ground on the words of the statute, taken in connexion with the conduct of the party in this case. The application has clearly not been heard. A notice that cannot

1844.

THE QUEEN

V.

Lord

HASTINGS.

be proved is no notice.

Rule discharged.

THE QUEEN v. The Inhabitants of LEEDS.

(WASHTON v. LEEDS).

June 3rd.

ON appeal against an order of two justices for the re- On an order

moval of Lydia Morgan and her four children from the township of Leeds to the township of Washton, both in the county of York, the sessions quashed the order, subject to the opinion of this Court on the following case:

for the removal of a female

pauper and her

children from

the place where

she resided with

her husband to the place of her maiden settle

The examinations on which the order was founded ment, the ex

were in the words following, that is to say :

"Borough of Leeds, in the county of York.-The examination of John Morgan, of Leeds, taken upon oath, &c., touching the place of his lawful settlement, who

saith as follows:

"I have a wife called Lydia, whose maiden name was Lydia Miller; I have four children by her, all born in lawful wedlock, namely, Margaret, aged twelve years, Thomas, aged eight years, John, aged four years, and Ann, aged one year and nine months; all of whom are unemancipated, and never gained settlements for them

the

aminations stated the consent of the

pauper's hus

band to the

removal of his wife and chil

dren, but did not state the wife's consent

to be separated band-Held,

from her hus.

for her removal
could not be
though
for two of the

that the order

supported,

children, who were above the age of nurture.

The examination of J. M., the pauper's husband, on which the order for the removal of pauper and her children was founded, was headed as taken "touching the place of his lawful settlement." The other examinations purported to be taken "at the time, place, and in manner aforesaid:"-Held, that the examinations were sufficiently taken.

The examination of the overseer stated, that he "had made diligent search and inquiry, with the object of discovering whether J. M. had any legal settlement, and had not been able to discover that the said J. M. had, by his own act, or the act of his parents or their ancestors, or otherwise, acquired any settlement:"-Held, that such statement was sufficient, and that the precise nature of the inquiries need not be stated; and that it was not necessary to negative the birth of J. M. in Scotland, Ireland, or the Islands.

1844.

v.

Inhabitants of

LEEDS.

selves. I am now living, residing, and inhabiting, with THE QUEEN my said wife and children, in, and we are now actually chargeable to, the township of Leeds. I never gained a settlement in my own right; my father and mother were called James Morgan and Ellen Morgan; I never heard where they were married. They neither of them ever gained settlements in England, or had any place of settlement in England to my knowledge or belief, either derivative or acquired; I never knew the place of my birth, though I have made diligent search and inquiry to ascertain it; my father died about twenty-four years ago, and my mother about eight years; I am now aged thirty-two years. In the month of October last I assisted George Smith in endeavouring to discover my place of settlement, and inquiry after the place of settlement, if any, of my father and mother; and we inquired of all persons, and searched in all likely places to find a place of settlement for me, but without success; we could not discover any settlement for me, and I believe I never had any. I hereby consent and agree that my said wife and children shall, without me, be removed to the township of Washton, that being the last place of her maiden settlement at and immediately before my intermarriage with her; and I pray that such removal may be forthwith ordered and made according to law.' "The examination of Lydia Morgan, taken upon oath at the time, place, and in the manner aforesaid; who says as follows:

"I am the wife of the above-named John Morgan; I never gained a settlement for myself; I am now aged thirty-two years; I am the lawful daughter of the undermentioned John Miller.'

"The examination of John Miller, taken upon oath, at the time, place, and in manner aforesaid; who says:"The above-named Lydia Morgan is my daughter, and was born in lawful wedlock. She is my daughter

by my present wife.' [Miller's examination then proved that his own settlement, a derivative one, was in Washton.]

"The examination of George Smith, one of the overseers

of the poor of the township of Leeds, in the said borough, taken upon oath, &c., touching the last place of the legal settlement of John Morgan and Lydia, his wife, and their children, who saith as follows:

66 6

'I have, together with the said John Morgan, made diligent search and inquiry with the object of discovering and ascertaining whether the said John Morgan hath any legal settlement; and I have not been able to discover or ascertain that the said John Morgan hath, either by his own act, or the act of his parents or their ancestors, or otherwise, acquired any settlement, or, if any such settlement have been acquired, I verily believe it is not known, and cannot in any manner be ascertained.""

The following were the grounds of appeal on which the appellants relied :—

1. "That the examinations do not shew that any search or inquiry has been made by the overseers of the poor of the said township of Leeds, or by any of them, or by any person or persons on their behalf, or by any person or persons whatever, to ascertain whether the said John Morgan is a person born in Scotland, or Ireland, or in the Isle of Man, or Scilly, or in either of the Isles of Jersey or Guernsey."

2. "That the said examinations do not shew in what places or in what manner the said John Morgan and George Smith searched for a place of settlement in England of the said John Morgan, or that they, or either of them, searched in those places in England in which the said John Morgan and his parents had resided, or that they, or either of them, made a proper or sufficient search."

1844.

THE QUEEN

v.

Inhabitants of
LEEDS.

1844.

THE QUEEN

v.

Inhabitants of

LEEDS.

3. "That, although the said examinations shew that the said Lydia Morgan and her said children were living with her said husband in the township of Leeds at the time when the said examinations were taken, yet it does not appear on the said examinations that the said pauper Lydia Morgan consented to be removed to the township of Washton, or consented to be removed at all without her husband, the said John Morgan."

4. That the said examinations are informal, insufficient, and bad in respect of other matters besides those to which the preceding grounds of appeal relate; and that the said examinations do not shew a good and sufficient cause for the removal of the said paupers from the township of Leeds to the township of Washton."

5. "That the examinations whereon the said order of removal was made were not duly taken by the two justices by whom the said order of removal was made."

When the appeal came on to be heard, the appellants insisted that the examinations were insufficient to warrant the order, on the third ground of appeal above stated; they also claimed a right to insist, under the fourth and fifth grounds, that the order ought to be quashed, inasmuch as it appeared, on looking at the examinations, including the headings thereof, that the examinations of John Morgan, Lydia Morgan, and Ann Miller were not taken in the matter to which the order relates, and that the remaining examinations were insufficient to support the said order. On the objections so taken under the third, fourth, and fifth grounds of appeal, the Recorder quashed the order, subject to the opinion of the Court of Queen's Bench. The appellants also insisted that the examinations were insufficient to warrant the said order on the first and second grounds above stated. The Recorder expressed an opinion against these objections, but gave leave to the appellants to include those other grounds in the case.