If the Court of Queen's Bench shall be of opinion 1844. that all the objections so taken by the appellants ought THE QUEEN to have been overruled, then the order of sessions to be quashed, and the order of removal to be affirmed. If the Court shall think the objections, or any of them, fatal to the order of removal, then the order of removal to stand quashed, and the order of sessions to be affirmed. Bliss and Stapleton, in support of the order of sessions (a). In this case the order of removal, being, in effect, for the separation of the wife and children, some of whom are under the age of nurture, from her husband, is bad. The consent of the husband alone is not sufficient; and, even if the wife concurred, there are no cases which go the length of shewing that their separation would be valid. Rex v. Eltham (b) will be relied on by the other side as an authority to the contrary; in that case, however, the consent of both husband and wife was given, and it did not appear that the husband was residing elsewhere than in the parish to which the wife was about to be removed. Before the 4 & 5 Will. 4, c. 76, no documents relating to the removal of paupers were brought before this Court by a writ of certiorari except the order of the removing justices; and in none of the cases decided under the old law, where a married woman was removed to her maiden settlement without her husband, did it appear that a separation of them would be the consequence. In St. Michael's, Bath, v. Nunney (c), it was held, that an order to remove a married woman was good, because it did not appear that she was thereby sent from her husband. Rex v. Ironacton (d), (a) April 20th, before Lord Denman, C. J., Patteson, Williams, and Wightman, Js. (b) 5 East, 113. v. Inhabitants of LEEDS. 1844. THE QUEEN ข. Inhabitants of LEEDS. Rex v. Stockton (a), and Rex v. Carleton (b) are to the same effect. Had the separation of husband and wife been apparent as the result of holding the orders of removal good in the cases above cited, the Court would have decided otherwise: St. Michael's, Bath, v. Nunney (c). In Rex v. Leeds (d), which was a case under the 59 Geo. 3, c. 12, s. 33, Bailey, J., in giving his judgment, said, "It is against public policy and good morals to permit the separation of husband and wife, even with their consent. I think that the magistrates have no discretion given them of removing the wife to her maiden settlement, and thereby of separating her and her family from her husband." The same principle has recently been recognised by this Court in Regina v. Birmingham (e), where it was held, that in no case could a child under the age of nurture be separated from its mother; and the rule applies as strongly in one case as the other. 2. Another objection arises on the first ground of appeal,-that the removal of the wife and children in this case has been made to the wife's maiden settlement, without sufficient search being made for the husband's. By the 3 & 4 Will. 4, c. 40, s. 2, power is given to justices to remove to Scotland, Ireland, or the Isle of Man or Scilly, paupers born in either of those countries, and who have acquired no settlement in England; search, therefore, should have been made as to whether the husband had not a birth settlement in Ireland or Scotland, &c.; and if he had, his wife and children should have been sent with him to his native country. 3. The examinations are improperly taken. caption of the husband's examination shews that it is taken touching his settlement, and the wife's similarly. The 1844. THE QUEEN v. LEEDS. The examination of the overseer is as to search only; but yet the wife and children were the persons removed, concerning whose settlement no inquiry pur- Inhabitants of ports to have been made. The justices, in fact, begin by inquiring into the settlement of A., and, failing to discover that, find one for B. and C., and remove them. The examinations, therefore, are taken irregularly, and are informal. Hall and Pashley, contrà.-First, as to the informal heading of the examinations. It is true that the husband's examination is taken " touching the place of his legal settlement;" but nothing is stated to shew that the wife's was taken touching the same. The heading, however, of the examinations is not that which determines the subject of the inquiry; that is determined by the complaint made before the justices. Before the 4 & 5 Will. 4, c. 76, such an objection as this could not have arisen; and it cannot be contended that the subject of an order of removal can be ascertained only by the heading of examinations, which that act first inintroduced. The mistake arises from assimilating these documents to affidavits, to which they have no resemblance in fact; these are judicial, affidavits only ministerial in their nature; Caudle v. Seymour (a); and there is no reason that these documents should be in writing at all, but that the law requires a copy of them to be sent. If, therefore, the heading be informal, that is merely a mistake of the clerk who wrote them, and affords no real objection to the examinations themselves. Secondly, as to the sufficiency of search. It is admitted, that if it had been shewn that the husband's birth settlement was in Ireland or Scotland, the wife and children should have been removed there; but, as (a) 1 Q. B. R. 894. 1844. THE QUEEN บ. Inhabitants of that is not pretended, the respondents have a right to remove to the only settlement they can discover, namely, the wife's maiden settlement: Rex v. St. Mary, Leicester(a). [Patteson, J.—The grounds of appeal seem to go the length of making it necessary to search all the registers in the United Kingdom.] The order of sessions must therefore be quashed as to two of the children, at any rate, who appear to be above the age of nurture, and who may be removed to their mother's maiden settle ment. Thirdly, as to the separation of husband and wife. In Rex v. Eltham (b) it was decided, that, where both husband and wife consented to be separated, the wife might be removed to her maiden settlement. That case is an express authority for the present. Here there is nothing to shew that the wife was not a consenting party; her consent need not be stated on oath; and it will be presumed that the removing justices were satisfied that she concurred: Pickard v. Sears (c). Besides which, the separation of husband and wife does not necessarily follow from the removal of the pauper in this case, as there is nothing to shew that the husband could not follow her to the place of her maiden settlement. The objection, that this order is contrary to public morals, is sufficiently answered by Lord Ellenborough, C. J., in his judgment in Rex v. Eltham (b). He there says, "A Scotchman, who has no settlement of his own, and is desirous to give his wife and children the benefit of hers, being unable to maintain them, consents that she should be sent to her parish, to which she is willing to go. Why should he not consent? Servants, and other persons of that description, members of the same family, who are to subsist by their labour, must frequently separate for that purpose; here there is neither a private nor a public injury, and there is no law against it;" and, in Jones v. Waite (a), the execution of a deed of separation between a husband and wife was held a legal consideration for an agreement entered into between the husband and a third person.-They also cited Chambers v. Caulfield (b). Cur. adv. vult. Lord DENMAN, C. J., on a subsequent day, (May 10), delivered the judgment of the Court.-This was an attempt to induce the Court to revise the decision of Rex v. Eltham (c), but we are of opinion that the question cannot arise in this statement of the case, on account of the wife's consent not appearing. The order of sessions, therefore, must be confirmed. Hall afterwards applied to have the said order discharged as regarded two of the children, who appeared to be above the age of nurture. The Court took time to consider, and on this day, (June 3rd), Lord DENMAN, C. J., gave a further judgment of the Court. In this case the order of sessions was confirmed upon the single ground, that the wife had not consented to be removed without the husband, and that such consent was necessary to a valid removal, assuming that it could be valid under any circumstances. The Court did not then recollect that this ground of decision does not apply to two of the children above the age of nurture, as to whom it is necessary to consider the other points of the case. The one arises on the examinations of the father and mother, and one Miller, which were taken touching the lawful settlement of the father, (a) 9 Cl. & Fin. 101. (b) 6 East, 244. (c) 5 East, 113. 1844. THE QUEEN v. Inhabitants of LEEDS. |