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opportunity of deciding whether he will appeal or not ; therefore the examinations are to be sent, and fully sent; and if we should encourage any doubt

this point, we should be constantly called upon to determine what documents might be suppressed, and a great amount of doubt and litigation would be let in. Mr. Pashley says truly, that an order of removal is a well-known instrument; but it is easy to conceive that an order of removal might be so mentioned in an examination as greatly to deceive the parties to whom it is sent. It might be for the removal of William Jones instead of Thomas Jones, or of one William Jones instead of another; and it is for the purpose of preventing the tricks which low cunning might introduce into such cases, that the Act of Parliament in strict terms imposes upon the right of appeal the conditions of sending all the evidence. I am of opinion that the right construction of this Act of Parliament is that which I have mentioned, and that the order of Sessions must therefore be quashed.

COLERIDGE, J.-I am of the same opinion, and though I may regret the consequence which will result in the present case, I think it of much greater importance that we should uphold a right and liberal construction of this Act of Parliament, than endeavour by a forced construction to meet the justice of a particular case. The objection is, that no copy or extract of the order of removal mentioned in the examinations was sent to the appellant parish. Upon looking at the facts, it appears that the respondents intended to rely upon two grounds of settlement; one a settlement by hiring and service, the other a settlement by acknowledgment, evidenced by a former order of removal unappealed against. Now this document was beyond all doubt given in evidence before the removing, magistrates; it was produced and looked at by them; and it was material to one of the grounds of settlement set up in the examinations. That being the case, this is very much within some of the decisions which have been considered necessary in order to give effect to the 79th section of the statute. Now the first objection upon which Mr. Pashley mainly relied, was that the examination disclosed another ground of settlement, to which this document was wholly inapplicable ; but to yield to that argument would be to introduce into the Act of Parliament a distinction which it does not contain, and which would lead to very inconvenient results. Then a great variety of settlements might be set up before the removing magistrates, from which the respondents would select one or two, and only send the evidence in their opinion applicable to such settlements, and we should have to decide again and again whether the evidence kept back was material to the settlement upon which the respondents might ultimately elect to rely. That is to make the documents to be sent depend upon the ultimate intention of the respondent parish; but the Act of Parliament says no such thing; it very wisely provides that no poor person shall be removed until twenty-one days after a notice of chargeability shall have been sent, accompanied by a copy or counterpart of the order, “and by a copy, of the examination upon which such order was made,not upon which the respondent parish shall ultimately rely; and the order is made upon all the evidence produced in support of it. But Mr. Pashley then suggested, that although the 79th section had not been complied with, that omission was no ground of appeal until after the removal of the paupers had taken place. I was, I confess, at first a good deal struck by this observation upon the words of the section; but certainly, as my Lord has observed, if we were to yield to that argument, we should be putting a construction upon it quite at variance with the general understanding and intention of the Act; and indeed the clause itself points distinctly to the intention that the order of removal and the

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examination upon which it is made should be sent together; because it says that the notice of chargeability is to be sent, “ accompaniedby the order of removal and by a copy of the examination." The clause further goes on to provide what shall be done in case the overseers or guardians shall agree to submitbut submit to what? To such order ; and yet Mr. Pashley says, that at that time the removing parish is not bound to give any information as to the ground upon which the order has proceeded. The words of the clause do give rise to some difficulty ; but I think that perhaps that difficulty may be got rid of by the effect of the word "removeable;" for the section provides that no poor person shall be removed or “ removeable" until twenty-one days after the examination shall be sent; that is, that he shall not have the quality of removeability until the condition of sending the examination has been complied with. In that sense the ground of appeal amounts to this, that the pauper is not in a condition to be removed.

WIGHTMAN, J.-I entertained at one time some doubt as to the validity of this objection; but that doubt has been removed, and I agree with the rest of the Court in thinking that the respondents were not at liberty to go into any evidence of settlement upon the trial of this appeal.

ERLE, J.-I concur in the decision of the Court, because as to this particular document there is an express decision requirirg it to be sent; but I very much regret that the actual truth should be sacrificed to a mere point of form; and that enactments passed for the purpose of advancing truth should often be abused in order to get judgments contrary to the truth.

Rule absolute to quash the order of Sessions. A. B.

COURT OF QUEEN'S BENCH.

Trinity Term, 1847.
BARNES V MARSH.

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Bastardy-bond-Right of father to custody of child. To an action on a bastardy-bond, and alleging for breach that the defendant had not indemnified the

parish officers, but suffered the child to be maintained at the expense of the parish, the defendant pleaded that the child had passed the age of nurture ; and that while it was under the control of the overseers and churchwardens the defendant was able and willing to maintain it, and then requested them to deliver the child to him, to be maintained by him, which they refused to do, and voluntarily, and of their own wrong, maintained the child at the expense of the parish. Issue was taken upon the request, and after verdict for defendant, the Court held, on motion for judgment non obstante, that the plea was good, without any averment that the child was willing to go to the defendant. EBT upon a bastardy-bond, by the plaintiffs, as church wardens

and overseers of the poor of the parish of Mansfield, in the county of Nottingham. The breach was, that the defendant had not indemnified and kept harmless the parish officers, but had suffered the child to be maintained at the expense of the parish. The plea, in substance, stated that the child was past the age of nurture, and under the power and control of the parish officers; that he, the defendant, was able and willing to maintain the child, and had required the parish officers to deliver over the child to his care and management, that it might be provided for without being chargeable to the parish, which the parish officers had and still refused to do; and that so the parish officers had been damnified voluntarily and of their own wrong. The plaintiffs traversed the request, on which issue the jury found for the defendant. A rule nisi had been obtained to enter judgment for the plaintiffs non obstante veredicto, on the grounds that a putative father had no right to the custody of his bastard child ; that the plea had not averred the child's consent, or that notice of the defendant's ability to maintain the child had been given to the parish officers.

Hayes (June 4th) shewed cause.–First. The duty which the law imposes on the putative father is the correlative of a right in him to the custody of the bastard child, which right may be inferior to that of the mother, but must prevail as against strangers, which the officers are, under the 18 Eliz., the moment that the child is not deserted by its parent, and left to their care. A voluntary payment, under a bond of this kind, cannot be recovered ; and the father may, if he pleases, provide for it, and so prevent any breach of the bond. (Hays v. Bryant, 1 H. Bl. 253; Richards v. Hodges, 2 Wms. Saund. 84; Burwell's case, 1 Vent. 48; Sherman's case, 1 Vent. 210; Rex v.Cornforth, 2 Str. 1162; Haines v. Jeffell, 1 Ld. Raym. 68; Newland v. Osomond, 1 Bott

. 406; Strangeways v. Robinson, 4 Taunt. 300; Pope v. Sale, 7 Bing. 447, were cited.) Secondly. The objection founded on an omission to allege the consent of the child does not arise, for the plea alleges the child to be under the power and control of the parish officers. Thirdly. There was no necessity to give notice of the defendant's ability.

Macaulay, contrà.—The child may depart from the custody of the officers of the parish, or of the putative father, who, in the eye of the law, is a mere friend, and no nearer a relation to the child than any other person. That being so, the church wardens and overseers were not bound to deliver up the child without its own consent. Notice to the overseers, of the defendant's willingness and ability, ought also to have been averred. (Re Lloyd, 3 M. & G. 547, and Co. Litt. 123, a, were cited.)

Cur. adv. vult.

LORD DENMAN, C. J., after stating the substance of the pleadings, said — The plaintiffs have moved for judgment, notwithstanding the verdict for the defendant upon the issue as to the request, contending that the facts in the plea were no defence, without adding that the child was willing to go to the defendant, to be maintained by him. But we are of opinion that this objection ought not to prevail, as the plea alleges that the child was under the power and control of the plaintiffs, and they refused to deliver her over to the defendant, according to his request. We think that the plaintiffs have no right to assume, after verdict, that the child was unwilling to go to the defendant; and, if the child was indifferent and passive, the facts in the plea shewed that the defendant did not suffer and permit the child to be maintained by the parish; he did not permit that which was contrary to his express request.

Rule discharged. B. W.

COURT OF QUEEN'S BENCH.

Michaelmas Term.-November 13, 1847.
THE QUEEN v. THE INHABITANTS OF LEEDS.

PRESTON V. LEEDS.

Appeal against order of removal-Former order quashed-Estoppel-Evidence-Notice of

appeal. An order of removal and order of Sessions were quashed generally by this Court, but, in fact, upon

the ground that the examination stated only that the pauper had paid rent, and not the rent, as required by stat. 5 Geo. 3, c. 50. The respondents afterwards removed upon the same settlement ; and upon the trial of the appeal against that order, the appellants relied upon the former order of this Court as an estoppel. The Sessions overruled the objection, and the appellants then tendered evidence of the ground upon which the decision of this Court had proceeded, which was rejected ; but it was admitted that if that evidence were received, it would prove that the decision was

grounded on a defect in the examination respecting the point of settlement :Held, first, that the order of this Court alone was not an estoppel, as it was open to either party to

give evidence to explain it; but was at most primâ facie evidence only that there was no settlement in the appellant parish. Secondly, that the evidence rejected ought to have been received ; and that upon that evidence the former decision of this Court was an estoppel upon the parties,

which precluded the respondents from again setting up the same settlement. A notice of appeal, signed by the overseers of parish L., stated that the inhabitants of parish L.

were aggrieved by an order of removal, and that the overseers of the poor of that parish intended to prosecute an appeal,-admitted to be sufficient. PON appeal against an order of two justices for the removal of Matthew

Redmayne, and Ann his wife, from the township of Preston, in the county of Lancaster, to the township of Leeds, in the West Riding of the county of York, the Court of Quarter Sessions for the county of Lancaster confirmed the order, subject to the opinion of this Court upon the following case.

The case set out the order of removal and notice of chargeability; then followed the examination of the witnesses, of which the material parts were as follows:

The pauper, Matthew Redmayne, saith : “ I am a cabinet-maker by trade, and am now fifty years of age. I have been married to my said wife about twenty-seven years. The place of my last legal settlement is the township of Leeds, in the West Riding of the county of York. In the month of May, 1820, I became the yearly tenant of a separate and distinct dwelling-house, situate, &c. I took the house for a year, at a yearly rent of, I believe, eighteen guineas. I took and hired the said house from Mr. Wild, of Leeds, who was the agent for letting the house, and who received the rents. Mr. Wild is since dead. I entered as the tenant of such house under the said yearly tenancy in the said month of May, 1820, and occupied and resided therein from that time until the month of October, 1821, without leaving. About the month of May, 1821, I had paid Mr. Wild either eighteen pounds or eighteen guineas, for the first year's rent of the said house, and soon after such first year's rent was due; and in October, 1821, I also paid him either nine pounds or nine guineas for half a year's rent of the said house, from the previous month of May, being the whole rent due by me for the said house, to the time I left the premises, which I did at the latter end of the said month of October. I have not since done any act to gain a settlement. About eighteen months

ago myself and my said wife were residing in the said township of Preston, in the said borough, and being in distress, we became chargeable to, and received relief

at the expense

from, that township, and were afterwards sent by that township to the Ribchester and Preston workhouses, in the Preston Poor-Law Union, and were kept there at the expense of the said township of Preston ; and we remained in those work houses until we were removed to the said township of Leeds by an order of removal. We remained in Leeds, under the care and expense of that township, until about three months ago, when we were removed back from Leeds to Preston, by the overseers of Leeds, and were handed over to the overseers of the said township of Preston; we have since been chargeable to and been relieved by the said township of Preston, and have been and now are residing in the Penwortham and Preston workhouses, where we are clothed, fed, and lodged at the expense of the said township of Preston. The workhouses of Penwortham and Preston are in the Preston Poor-Law Union."

Thomas Dixon saith : “I am the assistant overseer to the Preston PoorLaw Union, of which the said township of Preston forms part. In March, 1843, the said paupers, Matthew Redmayne, and Ann his wife, were residing in the workhouse at Ribchester and Preston, in the Preston Poor-Law Union,

of the said township of Preston ; the said paupers had previously been residing in the said township of Preston, and had become chargeable to and had been relieved by it, and were, in consequence of such chargeability and relief, sent by that township to the said workhouses for more convenient care and keeping. After being in those workhouses, and being lodged, clothed, and fed there at the expense of the said township of Preston, they were removed to the said township of Leeds, by an order of justices for their removal from the said township of Preston to Leeds, as their last place of legal settlement. The removal was appealed against by Leeds, and the appeal was heard at the Preston Quarter Sessions, June, 1843, when the order of removal was confirmed, subject to a case for the opinion of the Court of Queen's Bench.

“ The case having been heard, and the order of Sessions having been set aside for informality in the examination upon which the order was made, the said paupers, in consequence thereof, about three months ago, were brought back from Leeds to Preston, by the overseers of the said township of Leeds, and again became resident in and chargeable to the said township of Preston. The said paupers have since been and are now resident in the Penwortham and Preston workhouses, in the Preston Poor-Law Union, to which place they were sent for the convenience of the said township of Preston; and they have since been and are now kept, clothed, fed, and lodged in such workhouses, at the expense of the said township of Preston.”

James Hayes saith : “I am clerk to Mr. Richard Palmer, of Preston, attorney for the said township of Preston, and as such clerk had the management of opposing an appeal against an order of justices for the removal of the said paupers from the said township of Preston to the said township of Leeds. The said order of removal was obtained in March, 1843, and the appeal against the same was tried at the Preston Quarter Sessions, in June, 1843. I attended the hearing of the said appeal; the said order of removal was confirmed by the said Court of Quarter Sessions, subject to a case for the opinion of the Court of Queen's Bench. I now produce the said case as agreed upon between the appellants' and respondents' counsel, and as settled and signed by Thomas Batty Addison, Esq., the chairman of the said quarter sessions.

In the said case it is stated that if the Court of Queen's Bench should be of opinion that any of the objections taken by the said appellants, and set forth in the said case, ought to have prevailed at the said quarter sessions, the order of removal was to be quashed for deficiency in the examination accompanying the said order of removal.

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