1846. The QUEEN v. The Inhabitants of BIRMINGHAM. minations by any legal evidence that the said Anne Brown, before or at the time of the making of the said orders, was chargeable to the said parish of Birmingham. 6thly. That the said order was bad so far as it regarded Henry, the son of the said Anne Brown, inasmuch as it purported to remove the said Henry as legitimate, whereas it appeared on the face of the examination of the said Anne Brown that he was illegitimate. In answer to the 2nd and 3rd objections it was contended, for the respondents, that the appellants were not entitled, under their grounds of appeal, to be heard on them; and, with regard to all the five last objections, the respondents contended that the said examination and order were sufficient. The recorder was of opinion that the appellants were entitled by the first ground of appeal to be heard on the second and third objections taken by them to the said examinations, but he overruled all the five last objections, and granted a case, at the request of the appellants, for the opinion of this Court upon all the points last aforesaid. If this Court should be of opinion that the said order ought to have been quashed by the said recorder, either on the ground on which it was quashed, or upon any or either of the other objections so taken as aforesaid by the appellants, then the order of the court of quarter sessions is to be confirmed, otherwise to be quashed, and the order of removal to be confirmed. Sir F. Kelly, Solicitor-General, and Greaves, in support of the order of sessions (a)-The examinations are defective for not shewing a service under a yearly hiring; but a preliminary question arises whether the appellants are in a situation to take the objection under (a) January 21st, before Lord Denman, C. J., Patteson and Coleridge, Js. 1846. v. The Inhabitants of BIRMINGHAM. the general ground that the examinations are bad on the face thereof, when there are particular objections The QUEEN taken to the examinations. In Regina v. Middleton in Teesdale (a), no time was specified for which the tenement was rented, and the Court held that the objection could be taken under a general ground of appeal that the examinations were bad on the face thereof. In Regina v. Flockton (b), the want of statement of residence was allowed under the general ground of appeal, the other grounds of appeal merely raising questions of fact. Here the pauper states in her examination, "I continued in that service fifteen months, and then gave a month's notice, and left the same, and received the whole of my wages during the whole of my said service, and for the last forty days thereof I resided and slept in my master's house, in the said parish of Cheltenham." It is not alleged that the service was under the yearly hiring, and there is nothing to shew that the pauper served the last three months under the yearly hiring: Regina v. The Recorder of Pontefract (c), Regina v. Pilkington (d). In Regina v. St. Sepulchre, Northampton (e), the examination stated that the pauper rented a house from July 1839 to July 1841, and paid the whole of the rent during that time; which was held bad because the occupation was not shewn to be under such yearly hiring. The Court then said, that nothing should be left to inference, but that the facts should be distinctly stated: Regina v. North Bovey (ƒ), Regina v. Old Stratford (g), Regina v. Stoneleigh (h), Regina v. Wymondham (i), Regina v. St. Paul's, Covent Garden (k). 1846. The QUEEN v. The Inhabitants of BIRMINGHAM. The expression, that the pauper received her wages during her said service, does not cure the defect, because the word "said" has been held merely to identify the person or thing mentioned with what has gone before, but it does not import that which is matter of description: Rex v. Martin (a), Rex v. Mayfield (b), Rex v. Cheere (c), Regina v. Killerby (d), and Regina v. St. Margaret's, Westminster (e). The sessions is the proper tribunal to decide on the validity of the examinations; and the sessions having held them to be insufficient, the Court will not reverse that decision: Regina v. The Recorder of Pontefract (f), Regina v. The Justices of Kesteven (g), and Regina v. Bakewell (h). The jurat is defective for not shewing jurisdiction. The examination of the pauper appears to have been "taken before us, two of her Majesty's justices of the peace," but it does not appear to have been sworn before the same justices: Regina v. Shipston-upon-Stour (i). As the examinant in the case was a marks woman, her examination should appear to have been read over to her, in analogy to the practice in the case of affidavits. [Coleridge, J.-Every examination should be read over to the examinant, whether he can read and write or not. There is a rule in this Court, that, in the case of affidavits, this must appear to have been done; but there is no case which says it must appear to have been done with examinations. What right have we to impose such a rule upon magistrates, or to presume they have not taken proper pains to make her aware of what was taken down?] The order is also defective with respect to the adju (a) 9 C. & P. 215. (f) 2 Q. B. R. 548. dication of the settlement of the son Henry, who is there described to be the child, that is, legitimate child, Regina v. Totley (a), Rex v. Wyke (b), whereas the examinations shew him to be illegitimate. The order will be conclusive hereafter on the appellants, as to the son's settlement; but, inasmuch as he is illegitimate, he only retains the settlement of his mother up to the age of sixteen, and therefore the appellants are prejudiced by the order: Rex v. Silchester (c), Rex v. Headcorn (d), Rex v. Woodchester (e), Rex v. Hinxworth (f), and Rex v. Binegar (g). that The examinations are also defective for not shewing proper inquiry has been made, in order to ascertain the settlement of the husband. The pauper says, “I never knew or saw any relation of my late husband, nor can I tell to what parish or place he belonged." The examination must state that the ordinary sources of information respecting the settlement of the husband have been exhausted, before the wife can be removed to her maiden settlement. In Rex v. St. Matthew, Bethnal Green (h), it is said, "The child's settlement follows that of its father, if the father's can be found; and no recourse shall be had to the mother's settlement, till that of the father's can be traced no further." In Rex v. St. Mary, Leicester (i), the Court expressed an opinion, that before a child could be removed to its birth settlement, inquiry should have been made as to the settlement of the parents. And in Regina v. Leeds (k), and Regina v. Yelvertoft (1), the Court required some (a) Antè, p 42. (c) Id. 551. (d) Id. 253. (e) Id. 191. Cald. 42. (g) 7 East, 377. (k) Antè, Vol. 1, p. 257. (2) Id. 476. (m) Cald. 39. 1846. The QUEEN v. The Inhabitants of BIRMINGHAM. 1846. The QUEEN v. The Inhabitants of BIRMINGHAM. evidence of search. The cases of Rex v. Ryton (m), Rex v. Hensingham (a), and Rex v. Westerham (b), are distinguishable, because in those cases it appeared the settlement of the husband was not known; and Rex v. Harberton (c) passed without much argument, and the case was sent back to sessions. The presumption is, that every man has a place of settlement, which on marriage is communicated to his wife, and that presumption ought to be rebutted before the wife can be removed to her maiden settlement; as a woman by marriage acquires the settlement of her husband, and of course loses any settlement she may have previously acquired: Rex v. Saighton-on-the-Hill (d), Rex v. St. Giles-in-theFields (e), and Rex v. Woodsford (f). [They cited also St. Giles v. St. Margaret's, Westminster (g).] Miller and Spooner, contrà.-In Regina v. Middleton in Teesdale (h) and Regina v. Flockton (i), the objections were admitted, under the general ground that the examinations were bad, no other objections of a technical nature having been taken. In Regina v. Staple Fitzpaine (k), the Court held, that, where technical objections were taken, the parties must rely on those pointed out, and could not resort to the general ground. [They were stopped as to this point.] Lord DENMAN, C. J.-I think it is an important principle, and one which should now be well understood, that if, besides the general objection, particular objections are pointed out in an examination, the appellants (a) Cald. 206. (f) Cald. 236. |