it is argued, that the 70th section would work injustice, if the right to make the complaint were not confined to the party grieved. I cannot assent to that reasoning; because the legislature may well have thought that a party ought not to be proceeded against twice for the same cause. If, as was suggested, any collusion took place in order to secure the protection of that section, the object would be defeated; because the fraud would vitiate the proceedings. (The Duchess of Kingston's case, 1 Leach, C. C. 146.) The second objection is, that the complaint was made before one justice, and the plaintiff convicted by another; but it is unnecessary to give any opinion upon that point, because here is a valid conviction on the face of it; and we can only look at the conviction itself. If the proceedings were, in fact, without jurisdiction, the plaintiff might have appealed; or he need not have appeared before the second justice. Then, by section 70, if there be "a good and valid conviction,” and the warrant allege, as it does, that the party has been convicted, the warrant is not to be "held void by reason of any defect therein." Lastly, as to the award of costs, I think, upon the construction of the whole Act, that the legislature intended the magistrate to have the same power of giving costs as of imposing the penalty or damages; and that, in this respect also, the statute has been complied with. (a) All the objections, therefore, fail, and the rule must be made absolute.

PARKE, B.-As to the first point, the 68th and 70th sections create in my mind some doubt whether the party grieved ought not to be the complainant under this statute. There is certainly some weight in the argument, that great hardship might be inflicted upon an owner, if his right of action could be barred by a conviction which did not proceed upon his own information or that of any person authorized by him; but the cases cited of R. v. Corden and R. v. Daman were much stronger than the present; for they were both decided on the same Act of Parliament; which gave to the party grieved a remedy by action. Here, however, the Act is susceptible of a different construction; because the words are quite general, not pointing out any person in particular as the party to make the complaint. The second question is, whether any magistrate has jurisdiction to convict, except the one before whom the original complaint is made; and that entirely depends upon the words of the Act, there being no rule of common law upon the subject. Now, this case is distinguishable from Jones v. Gordon; because here the 65th section of the Act authorizes a single magistrate to summon the party charged to appear at a time and place to be named in the summons, not to appear before him. It then provides, that "if he shall not appear," that is, if he shall not appear at all before any justice, the justice may proceed ex parte, or he may issue his warrant for apprehending the offender and bringing him before himself or any other justice; but if the party charged appears in obedience to the summons, the matter is left quite open, and any magistrate who is present may hear and determine the case. Upon the third point, as to the costs, although the statute is involved in some confusion, I think the magistrate has acted upon it correctly; and he has pursued the form given, except in inserting the word "immediately." There can be no doubt that the intention of the Act was to make the offender pay costs, whether he were sent to prison or not; but the

(a) Sect. 67. "In every case of a summary conviction under this Act, where the sum which shall be forfeited for the value of the property stolen or taken, or for the amount of the injury done, or which shall be imposed as a penalty by the justice, shall not be paid, &c., it shall be lawful for the convicting justice (unless where otherwise specially directed) to com

mit, &c. for any term not exceeding two calendar months, where the amount of the sum forfeited, or of the penalty imposed, or of both (as the case may be), together with the costs, shall not exceed 51.; the commitment to be determinable in each of the cases aforesaid, upon payment of the amount and costs."

question is, whether an illegal condition has been imposed by directing imprisonment upon a failure to pay the costs. Looking at the terms of the conviction, it is clear that the costs are directed to be paid at once-the penalty and forfeiture at a future time; and the correct construction of the conviction, therefore, seems to me this-that the imprisonment is awarded for non-payment of the penalty and damages only, and not for non-payment of the costs; but when in prison the party would only be entitled to his discharge upon payment of all three. It was then said that the commitment is bad; but Daniell v. Phillipps (1 Cr. M. & R. 662) is an answer to that objection. I am of opinion, therefore, that no illegal condition has been imposed; and that none of the objections are valid.

ALDERSON, B.–The form of conviction given in section 71 shews conclusively that the party aggrieved is not necessarily the complainant. I entertain no doubt upon any of the points.

PLATT, B. concurring,

Rule absolute.

B.

COURT OF QUEEN'S BENCH.

Michaelmas Term.-November 11, 1846.

THE QUEEN v. THE INHABITANTS OF WATFORD.

Grounds of appeal—Birth settlement-Residence-Removal of widow-Complaint of chargeability. A ground of appeal stated that the examinations were bad because thay failed to shew, by sufficient statement of facts, that the pauper was, at the time the order was made, actually chargeable to the respondent parish: Held, that this did not let in the objection, that residence in the parish at the time of relief given was not shewn.

Birth gives a settlement without forty days' residence.

A complaint by the overseers only is sufficient.

THIS

HIS was an order for the removal of a pauper, which the Sessions had confirmed, subject to the opinion of this Court on a special case, the material parts of which are as follow:-The order purported to have been made on the complaint of the overseers of the removing parish, not naining the church wardens. It professed to remove the pauper, Maria Lewis, as a widow, to the place of her maiden settlement. The examinations shewed a settlementof the pauper in the appellant parish by birth, but did not state that she had resided forty days in that parish. The statement of relief by the pauper was "that she was now actually chargeable to, and had been relieved by, the parish of St. John, at Hackney, for several weeks last past with money and bread, and one shilling on the day of her examination." She also said she did not know the place of her deceased husband's settlement. Joseph Dossett, the relieving officer of the Hackney Union, in the county of Middlesex, said that "the said Maria Lewis is chargeable to, and has been relieved by, the parish of St. John, at Hackney, with bread and money for seven weeks last past, and with one shilling on this 1st day of December, 1844."

The grounds of appeal against this order, so far as the same related to the sufficiency of the examinations on which the order was made, were the following: First, that the examinations on which the said order of removal was made, are bad, defective, and insufficient on the face thereof respectively, and fail and omit to shew by sufficient statement of facts, and by proper and legal evidence of such facts, that the said Maria Lewis

was, at the time that the said order was made, actually chargeable to your said parish of St. John, at Hackney. Secondly, that the said examinations are also wholly insufficient to warrant and support the said order, inasmuch as they fail and omit to shew that the said Maria Lewis ever inhabited in our said parish of Watford for the space of forty days at the least, so as to gain a legal settlement there. Thirdly, that the said examinations are also wholly bad, defective, and insufficient to warrant and support the said order, inasmuch as they contain no evidence whatever tending to shew any settlement in our said parish of Watford of James Lewis, named as the husband of the said Maria Lewis in her said examination or that the said James Lewis ever was settled in our said parish. Fourthly, that the said examinations are also wholly bad, defective, and insufficient to warrant and support the said order, inasmuch as they fail and omit to shew that the place of the last legal settlement of the said James Lewis, mentioned as the late husband of the said Maria Lewis in her said examination, is unknown, and cannnot be ascertained. When the appeal came on to be heard, the appellants insisted that the order of removal ought to be quashed, on account of the insufficiency of the examinations on which it was made, as pointed out in each of the above grounds of appeal respectively. The Court of Quarter Sessions overruled each of these objections, and held the examination sufficient, and confirmed the order of removal, subject to the decision of the Court of Queen's Bench. The appellants also insisted that the order of removal was bad, for not shewing on its face that it was made on a sufficient complaint by parish officers having authority to complain in such behalf. This objection was also overruled by the Sessions.

Prendergast, in support of the order.-1. If the objection be to the statement of relief, it is answered by the clear and necessary meaning of the words. What could be more definite than that she has been relieved for several weeks past with bread and money, and with one shilling on the day of the removal? No other question is raised upon this ground of appeal. [Pashley.-The point intended to be raised is, that it is not shewn she was resident at the time of relief given.] That is not open to discussion now. The ground of appeal is directed only to the fact of chargeability; but if it be open, Reg. v. Rotherham (3 Q. B. 776) is an answer to it. The examination is taken upon the same day and before the same justices by whom the order is made. It is manifest that she was relieved in the parish. 2. The objection as to the removal to her maiden settlement cannot be supported since the well-considered decision of Reg. v. Birmingham (supra, i. 451; 15 L. J. 65, M. C.). It is not necessary to inquire into the husband's settlement at all. This is in accordance with the older authorities. (1 Nol. 293.) 3. The objection that there is not a good birth settlement without proof of residence is quite novel. Forty days' residence has never been held requisite for this settlement. The statutes before 13 & 14 Car. 2 treat birth as giving a right of settlement. Thus 11 H. 7, c. 62, allowed a beggar to beg "where he was best known or born." So 12 Rich. 2, c. 7, directs beggars to remove to the towns where they were born. The resolutions of the judges in 1633 state, "that the law unsettleth none that are lawfully settled, nor permits it to be done by a practice or compulsion, and every one who is settled as a native, householder, or sojourner, an apprentice, or servant for a month at least, without a just complaint made to remove him or her, shall be held to be settled." Birth settlement has always been treated as a settlement, although liable to be displaced by proof of any other. (Reg. v. St. Mary's, Leicester, 3 A. & E. 644.) Primâ facie, the birthplace is the settlement of the child. (Cripplegate v. St. Saviour's, 2 Bott. 27; Spitalfields

v. St. Andrew's, Holborn, Fort. 307.) As to the objection that the complaint is made by the overseers only, it has never been held that both overseers and churchwardens must join.

Pashley, contrà.-The question as to residence being necessary to a birth settlement turns upon the statute itself. The 13 & 14 Car. 2, c. 12, is highly penal, and must be construed strictly. It is in these words: "That the justices are to remove such person or persons to such parish where he or they were last legally settled, either as a native, householder, sojourner, apprentice, or servant, for the space of forty days at least." The words "forty days" must refer to each member of the preceding sentence. "Settled" is not used in the modern sense of where their settlement is, but rather where they reside. (Reeve's History of the Law, vol. v. p. 19; Lambarde, Duties of Constables, p. 51; 2 Bulstr. p. 351, were cited.) In Burn's Justice, tit. Poor, p. 411, it is said, "It would seem that a residence of forty days is essential to be acquisitive of a birth settlement." [ERLE, J.-Read on.] "But the tacit convention of parishes not to insist upon it would most probably induce the Court of King's Bench to remove such an objection if it were now set up." [LORD DENMAN, C.J.-Do you expect us to decide against the common sense of all mankind?] It may be that parishes have acted upon this view, but if it be a mistake, one convention will not make law. Such a suggestion was repudiated in Rex v. Eriswell (3 T. R. 707). [ERLE, J.-What does native mean?] Settled as a native is at least an ambiguous term, and the statute must be construed strictly. It creates a qualified serfdom, an ascription to the soil, and is inconsistent with liberty. 2. The chargeability is not shewn. Relief and inhabitancy are both essential ingredients. (Reg. v. Bradford, supra, i. 522; 2 New Sess. Cas. 330.) [COLERIDGE, J.-Was not that a decision on another point?] I thought on both. [WIGHTMAN, J.-Nothing was there said in objection to the ground of appeal. COLERIDGE, J.-Your present objection was not suggested to any one of us by the ground of appeal.] It was taken at the sessions, and is sufficiently specific. The facts which constitute chargeability are inhabitancy and relief, and therefore both are aimed at by this ground of appeal. Reg. v. Rotherham (3 Q. B. 776) is not in point, as that was on certiorari, and the Court looked at all the documents together, to support them by reasonable intendment. Here it is not shewn exactly where and when the relief was given. (He referred to Reg. v. High Bickington, 1 New Mag. Cas. 1; 3 Q. B. 790; Castrique v. Bernabo, 6 Q. B. 498.) 2. Reg. v. Birmingham is not impugned as to the ground upon which it was decided. But since the effect of the order, according to Reg. v. Rugeley (8 T. R. 620), will be to decide also the settlement of the husband, some evidence of his having gained a settlement in the appellant parish should be given. 3. The complaint is also insufficient. The overseers are not the same as churchwardens. (Rex v. Cambridgeshire Justices, A. & E. 408; Ex parte Harnley, 1 D. & L. 673; Reg. v. Bedingham, 13 L. J. 75, M. C.; supra, i. 2.) [ERLE, J.-Is not the definition of overseers, churchwardens and substantial householders ?]

LORD DENMAN, C. J.-I think that none of the objections can be maintained. The first is, that it does not appear by the order that the pauper was actually chargeable. This must be taken in the ordinary sense, and can only be read as pointing to an imperfection in the order, as to the facts of chargeability. It is not, therefore, open to contend that a statement of chargeability is deficient for not shewing that the pauper was not resident in the parish when relieved. If the point, as to residence, was intended to have been raised, the ground of appeal should have been more specific. The second objection is, that the pauper is not shewn

to have inhabited for forty days in the appellant parish. This is a birth settlement, and the objection has slept ever since the Act passed. A reference to the state of the law at the time may throw some light upon a statute, and therefore it is to be remembered that then, and ever since, it has always been uniformly understood that birth gives a settlement, and the words will well bear that meaning if they do not imply it distinctly. The third is an ingenious objection grounded upon Rex v. Rugeley, that some evidence should be given of the settlement of the husband being in the appellant parish; but I think, first, that Rex. v. Birmingham was well decided, and that this refined objection is not maintainable. I might, perhaps, meet it with as refined an answer, that there is a presumption that the maiden settlement is the same as the husband's, for if it were not, it is the interest of both parties to ascertain; of the respondents, to save themselves the expense of a useless removal, and the appellants to get rid of the settlement otherwise fixed upon them. But no inference need be drawn, for it is the settlement of the wife only that is the subject of inquiry and adjudication, and that appearing, and her husband's not being known, it is unnecessary to seek further. The other objection is briefly answered, for the statute says, the complaint is to be by the churchwardens or overseers. COLERIDGE, J. and WIGHTMAN, J. concurred.

ERLE, J.-If it should be requisite, I should wish to consider whether the true definition of overseers be not churchwardens and substantial householders.

E. W.

Order of Sessions confirmed.

COURT OF QUEEN'S BENCH.

Michaelmas Term.-November 20, 1846.

BARNETT v. Cox and ANOTHER.

Action against magistrates-Period of limitation-Metropolitan Police Acts-2 & 3 Vict. c. 472 & 3 Vict. c. 71, and 3 & 4 Vict. c. 84—“ Local and Personal Acts"-Stat. 5 & 6 Vict. c. 97. Two county justices, sitting together in a metropolitan police court, under the 6th section of 3 & 4 Vict. c. 84, and acting in the execution of the 2 & 3 Vict. c. 47, or of any of the Metropolitan Police Acts, are entitled to the same protection as police magistrates appointed under 2 & 3 Vict. c. 71; and an action brought against them for an act done, or omitted to be done, in pursuance of those statutes, must be commenced within three months.

The Metropolitan Police Acts are not “public, local and personal Acts," or Acts of a local and personal nature," within the meaning of 5 & 6 Vict. c. 97.

TR

RESPASS for false imprisonment against two magistrates of the county of Middlesex. Plea-Not guilty, by statute. At the trial, which took place before Lord Denman, C. J., during the sittings in Middlesex, after last Trinity Term, it appeared that the plaintiff was charged before the defendants, sitting at one of the metropolitan police courts, with an assault upon a constable whilst in the execution of his duty, under 2 & 3 Vict. c. 47, s. 18, and was convicted by them, and committed to prison. The action had been commenced within six, but not within three months, from the date of the imprisonment complained of; and, on the part of the defendants, it was contended that the action was too late. The learned judge, being of that opinion, directed a nonsuit. By s. 41 of the 10 Geo. 4, c. 44 (Metropolitan Police Act), all actions brought for any