mayor or other chief Magistrate of any city, borough, &c.

[LORD DENMAN, C.J.-If the statute of Eliz. meant only to give the mayor of a borough power to appoint when there were no other Justices, there would of course be an end to the question; but here there is another appointment by the Justices.]

[COLERIDGE, J.-Do you contend that the other Justices are altogether excluded? If so, they would be equally excluded if this had been an act to be done at sessions.]

The appointment by the mayor is at all events good. By the 43 Eliz. c. 2. s. 10. he is the person liable to the penalty of 51. if no nomination of overseers is made.

Prentis, contrà.-Unless the case of The King v. Butler is now to be overruled, this rule must be made absolute. Lord Mansfield says, in that case, the statute only means to give Justices in corporations, and head officers where there are no Justices, the same power as Justices in counties.

[COLERIDGE, J.-Do you contend that the mayor has not the power to, appoint overseers? This is an act to be done by the Justices, and the mayor is a Justice; besides, you must contend that, at all events, the nomination is in the Justices not being bailiffs, as the 8th section uses the term "bailiffs" expressly.]

The bailiffs are always Justices. In The King v. Moor (3) the appointment was made by two Justices, and no objection was made on that ground. So in The King v. Flisher (4).

[COLERIDGE, J.-The appointment in those cases was by the county Justices; in The King v. Moore it is clear that Moore was an inhabitant of Hornsey, in Middlesex.]

The King v. Towill (5) and The King v. 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 Justices" are to appoint another overseer.

[WIGHTMAN, J.-What effect do you give to the 10th section of the 43 Eliz. c. 2: who is finable in a borough in default of any appointment of overseers?]

(3) Carth. 161.

(4) Cald. 135; s. c. 1 Bott, P.L. 69. (5) Ibid.

(6) 1 W. Black. 637.

LORD DENMAN, C.J.-I think this question perfectly clear. The Municipal Corporations Act, 5 & 6 Will. 4. c. 76. s. 6, provides that the mayor of a borough shall be capable in law to do and suffer "all acts" which the chief officer of such borough might lawfully do and suffer at the time of the passing of the statute. One of those acts was the appointment of overseers. That the mayor had such appointment is clear, when we look at the different sections of the 43 Eliz. c. 2, by the 10th section of which the mayor is liable to a fine of 51. if the appointment is not made. It is contended that the mayor is only one of the officers; but he is the person on whom the duty is cast of making the appointment. Lord Mansfield in The King v. Butler seems to have had a strong feeling against the mayor having the command of these appointments. If attention had been called to it at the time, the legislature might have made an alteration; but I think that case is no authority whatever in support of this rule, and the words of the statute of Eliz. are in themselves perfectly clear.

COLERIDGE, J.-I am entirely of the same opinion, and I think that the matter is made perfectly clear by referring to the 8th and 10th sections of the statute 43 Eliz. The legislature confers an authority, and imposes a penalty if it is not exercised. Besides, it cannot be said that any one who is a Justice, but neither mayor, nor bailiff, comes within the words of the statute.

WIGHTMAN, J.-Lord Mansfield appears in The King v. Butler to have proceeded on the argument ab inconvenienti rather than on the words of the statute, and indeed what he says is rather to be treated as obiter dicta than as an express decision (7). Rule discharged.

of the pauper in the parish from which he is removed, however short the residence may be in the parish to which he is removed.

Under an order of removal a pauper was, in May 1842, removed from S, where she had resided twenty years in a house rented by herself, to C. She left one daughter in her house at S; and her other children, who had been removed with her, returned on the day of the removal to S, and she herself returned there seven days after such removal, and resided in the said house at S. till February 1847:-Held, that she was removable under 9 & 10 Vict. c. 66. s. 1.

On appeal against an order of two Justices, dated the 11th of February 1847, for the removal of Mary Janes and her two children from the chapelry of Seend to the parish of Camerton, in the county of Somerset, the Sessions quashed the order, subject to the opinion of the Court upon the following

CASE.

No question arose upon the order of removal, the examination, the chargeability of the paupers, the notice of chargeability, or the grounds of appeal, all of which, for the purposes of this case, were admitted to be correct. The point in dispute was the true construction of the 1st section of 9 & 10 Vict. c. 66, and with reference to this it was proved that the pauper, Mary Janes, was a widow, and had remained in the chapelry of Seend for upwards of eighteen years up to the year 1842, when she, with four children, became chargeable to Seend, and was removed from the said chapelry, under an order of removal, bearing date the 3rd of May 1842, to the said parish of Camerton. At that time she was tenant from year to year of a cottage in Seend, of which she and her family were the sole occupants. She paid 57. per annum for the cottage, and it contained furniture, which belonged to the pauper Mary Janes. She and her husband, in his lifetime, had resided in this cottage, under the tenancy aforesaid, for upwards of twenty years previous to the removal aforesaid, to Camerton in 1842. When Mary Janes and her four children were removed under the said order of removal to Camerton, she left an unmarried daughter, twenty-two years of age, in charge of the cottage and furniture; and, on her arrival

at Camerton, she went to stay with her sister-in-law, who resides there; but the children removed under the order returned to Seend the same day, and went to the cottage and continued to reside there as before. The pauper Mary Janes remained in Camerton seven days, during the whole of which time she lived at her sister's-in-law; and after having attended the board of guardians for the district in which Camerton is situate, she returned to Seend, and took up her abode in the aforesaid furnished cottage, and continued to reside there under the aforesaid tenancy with her children, until the making of the order which is the subject of the present appeal. Mary Janes paid the whole year's rent for the cottage, which accrued due in 1842; and no interruption took place in the yearly tenancy thereof, as between her and her landlord. When Mary Janes was taken to Camerton, under the aforesaid order of removal, she had the intention to return to Seend, if she could, but did not intend to return there unless she could get out-door relief from Camerton. When she went before the board of guardians for the union as before mentioned, on being asked by the chairman of the board, whether she intended to stay in Camerton? she replied she should like to go back to Seend on account of her children, who were left there; and the board told her she should be allowed 4s. per week by the parish of Camerton; and that sum was accordingly paid to her at Seend, from that time until the 12th day of November 1846, when the payment was discontinued. Upon these facts it was contended, on the part of the appellants, that the pauper had resided in the chapelry of Seend for five years next before the application for the order of removal, which is the subject of this appeal, and was, consequently, irremovable. On the other side, it was contended that the effect of the order of removal of the 3rd of May 1842, executed and unappealed from, was to break the continuity of the residence of the pauper, and that the pauper was, consequently, removable under the order now in dispute. The Court of Quarter Sessions decided that the pauper was irremovable, and quashed the order. If the Court of Queen's Bench should be of opinion that the judgment of the Court of Quarter Sessions was right, the order of Sessions was to be

confirmed; if otherwise, the order of Sessions to be quashed, and the order of removal to be confirmed.

Hadow, in support of the order of Sessions. -It is undoubtedly difficult to distinguish. this case from that of The Queen v. the Inhabitants of Halifax (1); but there has been no disruption of residence in point of fact the question is whether the order of removal amounts to a disruption of residence by operation of law. It is not a dissolution of the contract of hiring-The King v. the Inhabitants of Fillongley (2), The King v. the Inhabitants of Barham (3). Ball, contrà, was not called upon.

Lord Denman, C.J.-The order of Sessions must be quashed. The removal from Seend to Camerton was altogether inconsistent with the idea of the pauper's residence in Seend. The animus revertendi, on the part of the pauper, was subject to the right of the parish officers to allow her to return. WIGHTMAN, J. concurred.

ERLE, J.-I am of the same opinion. The object of the statute 13 & 14 Car. 2, by which the power of removal was given, was to prevent a pauper becoming an inhabitant.

1848.

Nov. 15.

}

Order of Sessions quashed.

THE QUEEN . THE INHABIT-
ANTS OF ST. EBBE, OXFord.

Order of Removal-Removability under 9 & 10 Vict. c. 66. s. 1-Proviso-Baron and Feme-Parent and Child.

The second proviso in stat. 9 & 10 Vict. c. 66. s. 1, that the wife or children are to be removable whenever the husband or parent is removable, and vice versâ, must be construed with reference to cases where such husband or parent is removable by law, and does not render a wife or children irremovable in cases where the husband or parent cannot practically be removed, by reason of absence from the parish or other cause; and therefore, where a husband who had not resided five years in a parish deserted his wife and children, and they became chargeable,

(1) 17 Law J. Rep. (N.s.) M.C. 158. (2) 2 Term Rep. 709.

(3) 8 B. & C. 99; s. c. 6 Law J. Rep. M.C. 78.

Held, that the circumstance of his absence did not prevent their being removable to the place of his settlement.

On appeal to the Sessions for the borough of Cambridge, against an order of two Justices, dated the 29th of April 1847, for the removal of Mary Elsbury and her three children from the parish of St. Andrew the Less, in the said borough, to the parish of St. Ebbe, Oxford, the Recorder quashed the order, subject to a CASE, which stated that, on the trial of the said appeal, it was proved that John Thomas Elsbury came to reside in the said parish of St. Andrew the Less at Midsummer 1846, with the said Mary his wife, and the said three children, being the legitimate children of the said J. T. Elsbury and Mary his wife; that he and they resided there from Midsummer 1846 till March 1847, when he deserted them as hereinafter stated; that the said Mary Elsbury, and the said three children continued to reside in the said parish of St. Andrew the Less from the time of such desertion until and at the time of the making of the said order; that the said J. T. Elsbury had, before the application for the said order, deserted from his said wife and children; that, at the time of the said application for and of making the same order, and at the time of hearing the said appeal, the said J. T. Elsbury still continued absent from his said wife and children; that, at the time of applying for and making the said order, and from thence up to and at the time of hearing the said appeal, the said J. T. Elsbury was not residing or inhabiting in the said parish of St. Andrew the Less; that the residence of the said J. T. Elsbury was unknown; that the said J. T. Elsbury was settled in the said parish of Saint Ebbe, and that the said Mary and the said children had no other settlement than the said settlement of the said J. T. Elsbury, and were removed by the said order to the said settlement of the said J. T. Elsbury.

On behalf of the appellants, it was objected that inasmuch as the said J. T. Elsbury was not, at the time of applying for, and making the said order, inhabiting or residing in the said parish of St. Andrew the Less, the said J. T. Elsbury was not removable from the same parish, and that, therefore, under and by virtue of the 9 & 10 Vict. c. 66, the said

wife and children of the said J. T. Elsbury were not removable from the same parish. The Recorder held that the said wife and children of the said J. T. Elsbury were removable from the said parish of St. Andrew the Less. If the Court should be of opinion that the said Mary Elsbury and the said three children were, under the abovementioned circumstances, removable from the said parish of St. Andrew the Less, then the said order to be confirmed, otherwise to be quashed.

Worlledge, in support of the order of Sessions.-This question turns on the proviso in the 1st section of 9 & 10 Vict. c. 66, that, "whenever any person shall have a wife and children, having no other settlement than his or her own, such wife and children shall be removable whenever he or she is removable, and shall not be removable when he or she is not removable;" and the effect of it is to make a woman long resident in the parish removable if she marries a man who has only lately come to the parish. Here there has been no sufficient residence to satisfy the statute, either by the husband or wife; and, therefore, according to The Queen v. the Inhabitants of Salford (1), there is nothing for the proviso to operate upon. It is a principle of our law, and especially of the New Poor Law, not to separate man and wife; and yet the argument on the other side would lead to a contrary doctrine, by preventing the wife being removed, together with her husband. The husband, in this case, was legally removable, although, by reason of his absence, he may not practically have been so.

Naylor and Metcalfe, contrà.-In order to remove the wife it must be shewn that the husband is actually removable also under the circumstances. In The Queen v. the Inhabitants of Stogumber (2), the husband was in prison, and the Court would not allow the wife to be removed; and there is no consent on the part of the wife-The Queen v. the Inhabitants of Leeds (3). The second proviso in the 9 & 10 Vict. c. 66. s. 1, operates as a distinct enactment, that the wife and children shall not be removed

(1) 17 Law J. Rep. (N.s.) M.C. 170.

(2) 9 Ad. & E. 622; s. c. 8 Law J. Rep. (N.S.) M.C. 20.

(3) 5 Q.B. Rep. 916; s. c. 13 Law J. Rep. (N.S.) M.C. 107.

without the husband or parent; it does not refer to the previous enactment, as it uses the terms "any person," not "such person." -Dwarris on Statutes, p. 719, Johnes v. Johnes (4), Atcheson v. Everitt (5), Bloxam v. Elsee (6).

[COLERIDGE, J.-The late act, 11 & 12 Vict. c. 111, though it does not apply to the case, notice of appeal having been given before it passed, may yet serve to shew the opinion of the legislature on the construction of the clause in question, as it recites that "doubts existed as to its meaning."]

It may also be argued that the legislature thought that they could not carry out that meaning without a new enactment.

LORD DENMAN, C.J.-I am of opinion that the order of Sessions must be confirmed. We must read the proviso and enactment together; and when the legislature, after the previous enactment as to removability, provides generally that the wife shall be removable, where the husband is so, it is clear that it is intended that if the husband would by law be removable, the wife within the terms of the proviso is removable also. The accidental circumstance of the husband being absent does not affect the question.

COLERIDGE, J.-This being a proviso, it must be treated, as all provisoes are treated, as referring to the preceding enactment, and must be construed together with it. Looking then at the two together no doubt can exist in the present case. Under certain circumstances a five years' residence does not create irremovability; and where the husband might be by reason of the earlier provisions of the section removable, it became necessary to say what was to be done with the wife and child. If the husband is irremovable, they, of course, are so also; but if the husband, as in this case, is removable within the former provisions of the act of parliament, the wife and children are so also.

WIGHTMAN, J.-I am of the same opinion. The husband is not to be considered irremovable, because the parish officers cannot find him, in order to remove him.

ERLE, J.-I am of the same opinion.

Indictment. The first count stated that, on the 16th of October 1846, one M. Lye and her three children were inhabiting in the township of Manchester, in the county of Lancaster, and had then become and were chargeable to the said township, the said township of Manchester being liable to maintain its own poor; and that after the said M. Lye and her said children had so become and were chargeable as aforesaid, the overseers of the poor of the said township of Manchester for the time being, made complaint to T. T. and D. P. then being two of her Majesty's Justices of the Peace in and for the said borough of Manchester (stating a complaint to authorize an order of removal); that the said Justices proceeded in the matter of the said complaint and heard evidence thereon, and made an order adjudging the place of the last legal settlement of the said M. Lye and her said children to be in the parish, township, or place of Sheffield, in the West Riding of the county of York (setting out the order, which directed that if no notice of appeal were given within twenty-one days after service of the order, &c. the overseers of Manchester should remove the paupers after the expiration of such twenty-one days, but if notice of appeal should be given within twenty-one days then after the final determination of the appeal, if the same should be confirmed). That notice

of chargeability was signed by the defendant, then one of the overseers of Manchester, and by divers other overseers thereof, and sent together with a copy of the order and examinations to the overseers of Sheffield; and that afterwards the overseers of 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 on in due form of law to be heard, and was heard at the General Quarter Sessions of the Peace holden in and for the borough of Manchester, on the 4th of January 1847, before the Recorder of the said borough, at which said General Quarter Sessions the said order of Justices was confirmed, subject to a certain case for the opinion of the Court of Queen's Bench-[the case was then set out at length]. That the overseers of Sheffield never agreed to submit to the said order of Justices, and that after the making of the said order of Quarter Sessions, and before the final determination of the appeal, the defendant still remained and was overseer of the said township of Manchester for a long time, until the 12th of January 1847, and that the said M. Lye and her children had not before the 12th of January 1847 been removed from the township of Manchester, but had been still resident there from the time when the said order was applied for until the 12th of January 1847. That the defendant had notice of all the premises, and that he then being such overseer of the poor of Manchester, and having no regard to his duty as such overseer, but intending to disobey and actually disobeying the said order of Justices, and intending, &c. to injure the said M. Lye and her children, and to aggrieve the inhabitants of Sheffield, and to cast on them the charge of maintaining the said M. Lye and her children, did, on the 12th of January 1847, with force and arms, and wickedly and maliciously, and without any lawful warrant or authority, remove and convey the said M. Lye and her said three children from and out of the said township of Manchester to the said township of Sheffield, and did then deliver them to one T. L, then being one of the overseers of the poor of the said township of Sheffield, to the great damage of the said M. Lye and her said children, in manifest violation of the liberties of the subjects of our Lady the