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have been more clear if it had spoken of “places connected with High Street." The whole appears to me to turn upon the word “within ;" whether this yard, under the circumstances, be within the street, within the meaning of the Act of Parliament. It could not be that the intention of the legislature was, that such property should go unrated, while its owners enjoyed benefit from the works of the commissioners. If any benefit is derived, it is enough; the degree is no test of liability. It is difficult to give to the word “ within" a meaning which would be applicable to every species of property in the Acts; but giving it a general and ordinary construction, I think these houses are within the High Street in the sense meant by the legislature. If there was but one house in the yard, it would be liable, and why not several ? They have a frontage to the street, though a small one, and the only access to them is through the street. If they are not within High Street, they are within no street at all
. What are they? They have no name, and would escape all taxation, though they derive the benefit, for the defendant has clearly some benefit from the paving, and, sharing the benefit, he ought to bear part of the burden; it may be that the commissioners have no power to get the houses numbered, which, it was said, they may be, if within the street ; but, for the purpose of being rated, if the property has a frontage in the street, it is liable. I think, after looking at one doubt and the other, the Act intended that this should be rated.
PARKE, B.-I am of the same opinion. The words in the Act are not to be construed in their strictest sense, but with the ordinary meaning which is usually attached to similar expressions; as when a person lives in a house abutting against a street, it is said he lives in the street, as his entrance to it is from the street; and it is the same here; whether it be a yard and a number of houses, or only one house, it is just as liable to be rated under the Act; the liability in any case is in consequence of the Act being of some benefit to the street: the party here derives a benefit from the improvement of the road, and it falls, I think, within the meaning of the Act. My judgment is founded on this, that if it had been one house, held by one occupier only, within the yard, it would have been liable to be assessed, and it can make no difference that the yard is occupied by several.
ALDERSON, B.-I quite concur: it cannot be within the High Street, literally. It appears to me to be within the intention of the Act, and if it had been one house, it is perfectly clear it would be liable; if it had a tunnel to it, it would still, in fact, be in the street. Mr. Justice Holroyd's judgment, in Doe v. Roberts, is in principle quite right.
ROLFE, B.-If the front of Northumberland House were to be pulled down, and shops built, leaving a gateway, would it not still be in the Strand ? It may as well be said that Burlington House is not in Piccadilly, as that these houses are not in High Street, because they stand back in an open yard, and are approachable only by one gateway from that street. I think this property is clearly rateable under these Acts, as being within High Street.
Judgment for the plaintiff
COURT OF QUEEN'S BENCH.
Michaelmas Term.- November 10, 1847.
THE QUEEN v. THE INHABITANTS OF MYLOR. Appeal against order of removal—Examinations--Copy of documents—What to be sent to
appellant parish-Ground of appeal. An examination in support of an order of removal shewed a settlement by hiring and service. I
then shewed that the pauper had been removed to the appellant parish by a former order, which was produced, and which had not been appealed against. No copy of that order was sent to the appellant parish ; but the appellants appealed against the order before the removal of the paupers, and delivered the following ground of appeal: “ That no copy or extract of the prior order of
removal, mentioned in the examinations, had been sent to them :". Held, that the omission to send a copy of that order was a good ground of appeal ; that the objet.
tion was properly taken ; and that the respondents were not at liberty to go into evidence of any
settlement upon the trial of the appeal. UPON appeal against an order of two justices of the peace of the borough
, of 1844, for the removal of Joseph Symons and Johanna his wife, and their three children, from the borough of Penryn to the parish of Mylor, in Cornwall, the Sessions confirmed the order, subject to the opinion of the Court of Queen's Bench on the following case.
The pauper, Joseph Symons, in his examination before the removing justices, stated as follows:-“ I am fifty-two years of age, or thereabouts. When I was about fourteen years of age I was employed by Mr. William Pellowe, then of Carvinick, in the parish of Mylor, in the said county of Cornwall, gentleman, as a weekly servant in husbandry, at the wages of 4s. per week, which was afterwards raised to 5s. per week. I continued in such employ as such weekly servant as aforesaid, for about three years and a half; but my place of rest during that time was in the said borough of Penryn. At that time one John Jenkin, who lived as a yearly servant with the said William Pellowe, in his house at Carvinick aforesaid, was discharged, and I, being then unmarried and without children or child, was taken into the house of the said William Pellowe, at Carvinick aforesaid, in the place of the said John Jenkin, upon the same terms, viz. 141. a year. I resided with the said William Pellowe, in his house at Carvinick aforesaid, at yearly wages, to the best of my knowledge not quite twelve months. There was no interruption in my service with the said William Pellowe between the time of my being employed by him as a weekly servant and my being taken into the house at Carvinick aforesaid, as a yearly servant as aforesaid. In the month of September, 1832, I was removed with my wife and children, by an order of justices, from the said borough of Penryn to the said parish of Mylor, from which there was not any appeal.” Then followed the examination of John Williams, justices' clerk, who stated: “I have been for many years and still am the clerk to the justices of the said borough of Penryn. I, as such clerk as aforesaid, took the examination of the said Joseph Symons, on the 10th day of September, 1832, before John Arthur, Esquire, the then mayor, and Edward Hodge, Clerk, then the deputy recorder of the said borough, two of his then Majesty's justices of the peace having jurisdiction in the said borough, touching the place of the last legal settlement of the said Joseph Symons; and I, as such clerk as aforesaid, made out an order for
the removal of the said Joseph Symons and his wife and family from the said borough of Penryn to the parish of Mylor, in the said county of Cornwall, which order was signed by the said John Arthur and Edward Hodge, as such mayor and deputy recorder as aforesaid, in my presence, and which said order I now produce. Edward Tregaskis, in his examination, stated that in the year 1832 “ I was the assistant overseer of the said borough, and had to perform all the duties appertaining to the office of overseer. That on the 13th day of December, in the year last aforesaid, I, as such assistant overseer as aforesaid, removed the said Joseph Symons, together with Johanna his wife, and Mary Ann, John, Elizabeth, William, and Thomas, their children, by virtue of an order bearing date the 10th day of September, in the year last aforesaid, which order purported to be signed by John Arthur, mayor, and Edward Hodge, deputy recorder, from the said borough of Penryn to the parish of Mylor, in the said county of Cornwall ; and that I, as such assistant overseer as aforesaid, delivered them to Robert Rundle, then one of the overseers of the poor of the said parish of Mylor, together with a duplicate of the said order.” The following, amongst others, was a ground of appeal: That no copy or extract of the alleged order of removal of the said Joseph Symons and his family, mentioned in the examination of John Williams, and therein stated to have been produced before the removing justices, was sent with the examinations to the appellants; who thereupon insisted that the respondents had no right to enter into their case at all. The Court of Quarter Sessions reserved the point, heard the appeal, and confirmed the order, subject to the opinion of the Court of Queen's Bench thereon. Should the Court be of opinion that the objection was fatal, then the order of Quarter Sessions to be quashed; otherwise, confirmed.
Pashley, in support of the order of Sessions. The objection is, that the respondents had no right to enter into proof of any ground of settlement whatever, because no copy or extract of the order of removal mentioned in the examinations was sent therewith ; but surely that cannot be sustained. Suppose the examinations shewed a settlement by every head of settlement known to the law, but the overseer also added that he had a letter from the appellant parish admitting a settlement, and that letter was not sent, could the respondents be precluded from giving any evidence of a settlement on that account?
LORD DENMAN, C. J.- They were stopped from proving the hiring and service, because they could not prove the order of removal, which they did not want. Why should they have been stopped ?
M. Smith, contrà.—The 79th section of the Poor Law Amendment Act has not been complied with. That requires the examination to be sent; and this Court has held that “examination” means the whole body of evidence adduced before the magistrates. (Reg. v. Outwell, 9 Ad. & E. 836.) There the respondents sent all the examinations, upon which the magistrates adjudicated; but the Court held that they were bound to send all that had been taken, whether the adjudication proceeded upon them or not. In Reg. v. East Rainton (14L.J. 135, M.C.; 1 New Mag. Cas. 327), that doctrine was extended to the sending of all documents produced before the removing magistrates ; there the omission to send a copy of a deed was held fatal. Reg. v. Brixham (8 Ad. & E. 375) also shews the necessity of a strict compliance with the 79th section of 4 & 5 Wm. 4, c. 76, and that the non-compliance is ground of appeal; and Reg. v. Wellington (1 New Mag. Cas. 431 ; 2 New Sess. Cas. 176) is expressly in point; for there the respondents were held to be not entitled to be heard on the trial of the appeal, because no copy of a prior order of removal, which had been produced before the removing magistrates, was sent with the order, although the examination disclosed other grounds of removal.
LORD DENMAN, C. J.-That seems to decide the present case.
Pashley.-R. v. East Rainton is the only case in which the matter was much argued ; and there the only ground of removal disclosed by the examination, was that to which the evidence kept back applied ; and Coleridge, J., there observed that the Court only meant to say that the document must be sent. The reason of this objection is, that, by omitting to send some part of the evidence, the rest is made insufficient to shew a settlement, and it is difficult to see how any copy which the parties choose to send can affect the evidence unless it be taken down by the magistrates. Here all that appears is, that a magistrates' clerk described a certain order, and that there is abundant evidence of settlement independently of that. In Reg. v. Latchford (6 Q. B. 567; 1 New Mag. Cas. 147) it was held that the respondent may rely on every part of his examination, and the receipt of illegal evidence, though it will vitiate the particular examination, will not defeat the order, if sufficient legal evidence remains to support it. (Reg. v. Ecclesall Bierlow, 11 Ad & E. 607; Reg. v. Tetbury, ib. 615, a.) Reg. v. Outwell only decided that the term “ examination,” used in the statute, means every thing taken down by the magistrates as an examination; and this cannot include documents, because they are frequently not in the possession of the respondent parish. At the most, therefore, copies only can be required as a condition ; and those copies ought to be taken down by the magistrates. Coleridge, J., in Reg. v. Èast Rainton, suggested that parts of documents might sometimes be omitted and the omission be sufficiently accounted for; if so, it is accounted for here by the circumstances, that the document is one of a nature so well known as to render the sending of it superfluous; that it had been formerly sent; and that it was not relied upon by the respondents as any part of their case. In Reg. v. Holne (1New Mag. Cas. 544; 2 New Sess. Cas. 364) it was held that the omission to send examinations tendered by the appellants before the removing magistrates and received by them, but not taken down in writing, was not a good ground of appeal. [COLERIDGE, J.-The question is, whether it is part of the evidence. Suppose four or five distinct settlements are proved before the removing magistrates ; and the respondent parish, ultimately relying on one only, keeps back material evidence applicable to all the others; would they be at liberty to go into evidence of the one settlement on which they relied? If so, the question what is to be sent is made to depend upon the ultimate intention of the party removing.) At all events, the omission to send this document cannot be a ground of appeal against the order before an actual removal. In Reg. v. Brixham (8 Ad. & E. 375), it was certainly held that the omission to send a notice of chargeability was a ground of appeal against the order ; but a little consideration will shew that that objection cannot arise until after removal. Sec. 79 of the statute says, that no poor person shall be removed until twenty-one days after the notice of chargeability, acccompanied by a copy of the order and by a copy of the examination, shall have been sent. Until after the removal, therefore, there can be no failure to comply with the statute ; and in this case there never has been any removal. The appeal is against the order, and as the documents may be sent at any time, so that the pauper is not removed until twenty-one days after they are sent, the omission to send cannot be ground of appeal.' [COLERIDGE, J.-But if notice of appeal be given, then the paupers cannot be removed until the appeal has been determined ; and, according to your argument, in that case the appellants would not be entitled
to the documents at all.] That is the effect of the statute. Until the removal there is no grievance. If the appeal is against the order only, it is an appeal against the sending of documents; and how can it be in that stage a ground of complaint that documents have not been sent ? [COLERIDGE, J.-The object of sending a copy of the examinations is to assist the parish in determining whether they will appeal; and the twenty-one days are given for that purpose; but if the documents are not sent, how is the parish to determine?] The parish has no occasion to deliberate at all. The sending of the order is no practical grievance to the parish ; and when the paupers are actually removed, that removal may be appealed against. If the removal takes place without sending the documents, or at any time within twenty-one days after they have been sent, then the statute is violated; but it cannot be a ground of appeal that possibly, at a future time, the respondents may disobey the statute. [COLERIDGE, J.—Then you contend that if a parish appeals against an order before actual removal, and applies to the respondent parish for the examinations and other documents, that parish might refuse, on the ground that the paupers had not then been removed?] That is the consequence of appealing before they are hurt. [LORD DENMAN, C. J.-As all appellants have done since the passing of that statute; and as it was clearly the intention of the statute that they should.
M. Smith.-In R. v. Brixham, I used the very argument which is now addressed to the Court, and it was expressly overruled.] At that time it was assumed that there was no appeal after removal ; but now by various decisions it is settled that the parish may appeal either against the order of removal, when served, or against the actual removal. (Reg. v. The Justices of Middlesex, 9 Dowl. 163; Reg. v. The Recorder of Leeds, 16 L. J. 153, M. C.; 2 New Mag. Cas. 104.)
LORD DENMAN, C. J.-The only thing that occasions any doubt is the nature of the objection, and the form in which it is taken ; you complain that neither copy nor extract of the document was sent; but an extract was sent.
M. Smith.— The ground of appeal is, that no copy or extract of the document was sent; and if we were entitled to have a copy, that ground of appeal lets in the objection that none was sent.
LORD DENMAN, C. J.-That is a sufficient answer to that objection. If it had been a copy, fac-simile, or extract, still the objection would have been that no copy was sent, if a copy was by law required ; and I am sorry to come to the conclusion that this ground of appeal must prevail ; because one can't help seeing that there was a good settlement, well proved. But the words of the Act of Parliament construed one way shew that the respondent could not go into any evidence of settlement upon this appeal; and that is the construction which has received frequently the sanction of this Court, and has been admitted by the universal consent of all parties engaged in the execution of the poorlaw to have been attended with great benefit in the saving of expense and litigation, by requiring the question of settlement to be tried upon appeal and decided before the actual removal of the paupers. If we were now to interfere with that view, we should be raising doubts which have never existed, and creating great litigation and expense to parishes. And further, I think that we should be impeaching the general authority of the Court, if we were to give any encouragement to the small distinctions which have been attempted in the present case. It appears by the statute, construed according to the universal understanding of it, that the intention of the legislature was to encourage parishes to appeal upon the service of the order, and not to wait for the actual removal. The meaning of the requirement that the examination is to be sent twenty-one days before the removal must be that the party should have the