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COURT OF QUEEN'S BENCH.
Michaelmas Vacation. December 17, 1846.
THE QUEEN v. THE INHABITANTS OF St. Paul's, Covent GARDEN.
Order of removal-Statement of inhabitancy in the removing parish—" Coming to settle"-Stats.
13 & 14 Car. 2, c. 12, and 35 Geo. 3, c. 101, s. 1. An order of removal under 13 & 14 Car. 2, c. 12, and 35 Geo. 3, c. 101, s. 1, must shew upon the face
of it that the paupers were inhabiting in the removing parish at the time of making the order : that is, that they were in the parish for the purpose of inhabiting there, as contradistinguished from the purpose of visiting or passing through it. That rule is sufficiently complied with in the ordinary form, which states that the pauper has “ to inhabit” in the parish ; and it is also satisfied by a statement that the pauper
" intruded and came into the parish, and is now inhabiting therein," although in the latter form the purpose of the coming is not distinctly stated. An order, therefore, in that latter form was confirmed by this
Court. The allegation that the justices were “acting in and for "a county shews that they had jurisdiction
in the county: The insertion of the words “ on sight hereof" in the mandatory part of an order of removal is unob
jectionable, notwithstanding s. 79 of 48.5 Wm. 4, c. 76. An order, good in other respects, is not vitiated by the omission of any date of place. TPON appeal against an order of removal by two justices of the county of
Middlesex, the Court of Quarter Sessions confirmed the order, subject to the opinion of this Court upon a case, of which the material parts were as follow,
The order of removal appealed against was as follows :“ To the church wardens and overseers of the poor of the parish of Saint
Marylebone, in the county of Middlesex, and to the church wardens and overseers of the poor of the parish of Saint Paul, Covent Garden, in the liberty of Westminster, in the county of Middlesex, and to each and
every of them.
“ Middlesex, Majesty's justices of the peace acting in and for the county
Whereas complaint hath been made unto us, two of her to wit. of Middlesex, by the church wardens and overseers of the poor of the said parish of Saint Marylebone, that Ann Sheridan, single woman, aged 64 years, intruded and came into the said parish of St. Marylebone, and hath actually become chargeable to and is now inhabiting in the same parish. Upon examination of the premises upon oath, and other circumstances, we do adjudge the same to be true, and do also adjudge the place of the last legal settlement of the said Ann Sheridan to be in the said parish of St. Paul, Covent Garden, in the liberty of Westminster, in the said county of Middlesex. These are, therefore, in her Majesty's name, to require you, the said churchwardens and overseers of the poor of the said parish of St. Marylebone, on sight herenf, to remove and convey the said Ann Sheridan from out of your parish of St. Marylebone to the said parish of St. Paul, Covent Garden, and her deliver unto the church wardens and overseers of the poor there, or to some or one of them, together with this our order, or a true copy thereof; who are hereby required to receive and provide for her according to law. Given under our hands and seals, this 26th day of November, 1844.
“ E. Elliott. (L.S.)
“JAMES John HAMILTON.” (L.S.) The case then set out the examination of Ann Sheridan, on which the order was made ; but as, upon the argument, Pashley abandoned the objections
taken to the examination, it is not necessary to insert it, or the grounds of appeal relating to it.
The only ground of appeal relating to the present decision was, that the said order of removal is bad, defective, and insufficient on the face thereof.
The appellants insisted on the insufficiency of the order and examination under the above grounds. The objections stated as to the order were, that the jurisdiction of the justices was not sufficiently shewn, and that the order was illegal in requiring the church wardens
and overseers of the poor of St. Marylebone to remove on sight thereof. The objections were overruled, and the Sessions confirmed the order. If the Court of Queen's Bench shall be of opinion either that the examination does not sufficiently shew such a hiring and service as would confer a settlement, or that the order of removal is bad on the face thereof, the order of Sessions to be quashed; otherwise, the same to stand affirmed.
Carrington, in support of the order of Sessions.—The jurisdiction of the justices sufficiently appears upon the face of this order. First, they are de
as justices “acting in and for” the county, and the words “in and for” have been held to contain a sufficient statement of the jurisdiction. In Reg. v. The Recorder of King's Lynn (15 L. J. M.C. 93; 1 New Mag. Cas. 584; 2 New Sess. Cas. 334), and in Reg. v. Rotherham (3 Q. B. 776), the orders described the justices as “justices in and for” the county, and were held good.(a) But the objection here is, that the word “acting” makes it bad, because they may have acted without being justices. The answer is, first, that the word acting applies to the word in only, not to the word for; so that the order means that they were justices for the county acting in the county ; but, secondly, acting as justices is some evidence that they were so; and there are many precedents of orders in this form. The order in Reg. v. Blathwaite (15 L.J.M.C.48; 1 New Mag. Cas. 457) was not objected to on this ground. Secondly, the order sufficiently shews that the paupers were inhabiting in the removing parish; it recites a complaint that the pauper had intruded and come into the parish, and was actually chargeable thereto and inhabiting therein, and that is a very usual form. The objection is, that it does not shew that the pauper had come to inhabit or settle-i. e. for the purpose of inhabiting or settling—and that that is necessary to give the justices jurisdiction; but no particular form of words is necessary, and
those used are sufficient. In Reg. v. The Recorder of King's Lynn (15 L. J. M. C. 93 ; 1 New Mag. Cas. 584 ; 2 New Sess. Cas. 334), the order merely stated that the paupers“ now inhabit in the said parish" no objection was made upon that ground, and the order was held valid. Reg. v. Willatts (1 New Mag. Cas. 340 ; 14 L. J. M. C. 157, and 2 New Sess. Cas. 2) was quite a different case. There the order recited a complaint that the paupers “have lately intruded and come into the said parish, and have become actually chargeable to the same;" and the Court held that those words were not sufficient to shew inhabitancy, Coleridge, J. observing, that “a tramping beggar, who might accidentally break his leg in a parish, would become chargeable, and would have intruded himself without having come to inhabit at all;" so that that decision proceeded upon the absence of the word “ inhabit,” which is found in this order, and which is also the word used in the statute 35 Geo. 3, c. 101, s. 1. That statute does not adopt the words of the statute of Charles, “ come to inhabit,” but says, that “no poor person shall be removed, by virtue of any order of re
(a) In R. v. Stockton (1 New Mag.Cas. 354; 2 New in describing the jurisdiction of justices, was, that Sess. Cas. 16), the word “in” was omitted, and an the justices not only were capable of doing the act order beld bad on that ground ; Patteson, J. ob- within their jurisdiction, but that they actually did serving, that the proper interpretation of that word, it within their jurisdiction.
moval, from the parish or place where such poor person shall be inhabiting, to the place of his or her last legal settlement, until such person
shall have become actually chargeable to the parish, township, or place in which such person shall then inhabit.” Reg. v. Rotherham (3 Q. B. 776; 2 G. & D. 523, and 12 L. J. M. C. 17) is also an authority against this objection. There it was objected that it did not appear upon the face of the examination by the removing justices that the paupers, at the time of the removal, were residing in the township, and upon that objection the Court said, “ The point for consideration is, whether, upon the face of the examination, by fair and reasonable intendment—and by that rule we were desired to consider it-it does not sufficiently appear that the paupers were inhabiting in the removing township at the time of the examination and of making the order.” Thirdly, the order requires the overseers," on sight hereof,” to remove, and it is said that since stat. 4 & 5 Wm. 4, c. 76, that makes it bad, because, by section 79 of that Act, they are bound to wait twenty-one days at least ; but in Reg. v. Rotherham (3 Q. B. 776; 12 L. J. M. C. 17), it was decided that an order to remove, absolute and unconditional in its form, was valid, notwithstanding that statute; and this is no more than an order to remove generally : the words necessarily imply no more than that the overseers are to obey the order in a legal manner. Lastly, it is said that the order should have had a date of place, as otherwise it may have been made out of the jurisdiction. The same objection was taken and overruled in Reg. v. The Recorder of King's Lynn (1 New Mag. Cas. 584; 2 New Sess. Cas. 334), on the ground that it rests upon an assumption that the justices, after receiving the complaint within their jurisdiction, went out of it to make the order ; that so to suppose would be to intend against the order, and that no intendment ought to be made either way. In Reg. v. Stockton-upon-Tees (1 New Mag. Cas. 354), the Court were of opinion that the word “in," used in describing the authority of the justices, was tantamount to a date of place, which is unusual in orders of removal. None of these objections, therefore, to this order can be sustained.
Pashley, contrà.—The main question is, whether the order shews that the paupers had “come to settle,” or “to inhabit;” because, if not, the justices had no jurisdiction. The statute 13 & 14 Car. 2, c. 12, s. 1, recites that “ by reason of some defects in the law, poor people are not restrained from going from one parish to another, and therefore do endeavour to settle themselves in those parishes where there is the best stock, &c.; and when they have consumed it, then to another parish, and at last become rogues and vagabonds, to the great discouragement of parishes to provide stocks,” &c.; and then makes it lawful, “ upon complaint made by the churchwardens and overseers of the poor
of any parish, to any justice of the peace, within forty days after any such person or persons coming so to settle as aforesaid, &c., for any two justices, &c., of the division where any person or persons that are likely to be chargeable to the parish shall come to inhabit, by their warrant to remove and convey such person or persons, &c.” Then the subsequent statute, 35 Geo. 3, c. 101, s. 1, only repeals so much of that Act as enables justices to remove persons likely to be chargeable ; and provides that no person is to be removed, unless actually chargeable.” Accordingly, all the established forms of orders of removal adopt the words of the statute, “ come to inhabit ;” but in this case the words are, “ is now inhabiting,” and they are not sufficient. They do not shew that the pauper came for the purpose of settling or inhabiting, for a person may at any given moment inhabit in a parish without having come for the purpose of inhabiting. The most temporary residence would satisfy the words here used. At all events, it is enough to say that the matter is left in doubt, because the
jurisdiction ought clearly to appear. The word “ inhabit” has no definite legal meaning (R. v. Mashiter, 6 Ad. & Ell. 153); its meaning varies in various statutes and charters. In the Statute of Bridges (22 H. 8, c. 5, ss. 2, 3) it applies only to householders or persons having land in possession in the county where the decayed bridge is, or to bodies politic and corporate, resident therein. (2 Inst. 702.) So with regard to liability to church-rate, a man may be inhabitant and parishioner of one parish, though resident in another. (Jeffrey's case, 5 Rep. 67, a.) Again, an occupier of land within a hundred is an inhabitant within the Statutes of Hue and Cry, although he has neither a house nor lodges there. (Leigh v. Chapman, 2 Wms. Saund. 423.) In a charter of incorporation, the term “ inhabitant householders within the said borough ” was held to include all “ inhabitant householders” within the meaning of the Municipal Corporations Act; that is, all either within the borough, or within seven miles of it (Rutter v. Chapman, 8 M. & W. 1); and the word “ inbabitants” in another charter was construed as meaning “ inhabitants paying church and poor rates." (Rex v. Davie, 6 Ad. & Ell. 374, 386.) To give a qualification under the Registration of Voters Act, there must be a residence animo residendi (Withorn, app., v. Thomas, resp., 8 Scott, N. R. 783; 7 M. & G. 1); and the same law has been laid down with regard to this very statute of 13 & 14 Car. 2. In R. v. Ashton-under-Lyne (4 M. & S. 357), the pauper's husband, being a soldier, deserted and left his family in the removing parish; the wife, during his absence, took a house there at 51. a year, and lived in it with her family; and also took another house, at five guineas a year, and put some of her husband's furniture in it, intending to remove thither, but never did remove, but underlet it ; and during the time she held both, her husband came to see her, and remained seven weeks concealed in the house where she lived, and was made acquainted with her having taken the two. The Court held that the husband did not acquire a settlement by this residence; Lord Ellenborough, C. J., saying: “ His coming into the parish, therefore, was nothing better than the mere intrusion of a fugitive, who is lurking in hiding-places, and was not in any sense a coming to settle ; that is, not a coming into the parish animo residendi.” But the case of R. St. James's, Bury St. Edmunds (10 East, 25), is a conclusive authority on this subject. In that case, Lord Ellenborough, C.J., after reading the statute 13 & 14 Car. 2, c. 12, s. 1, said : “ The expression of coming to settle denotes that the party comes animo morandi or manendi : it may be for a temporary purpose,
but still it must be understood that he comes to settle there. But how can it be said that the pauper went into this parish animo morandi at all? He went into the town with a cart of hay, which he was to dispose of, and return with a load of muck. How, then, can it be said that he went there to settle ? Then, if he were not removable within the terms of the 13 & 14 Car. 2, can we find any enlargement of the power of removal? The 35 Geo. 3 has the words inhabiting or sojourning ; but it would be an extravagant construction of either of those terms, to say that it meant to include such a case as this. Then there is no authority for this order, and the Sessions have done right to quash it.” [ERLE, J.--The authorities that you cite only shew that the word "inhabit” has several legal meanings, not that it has no meaning.] It is sufficient to establish that the word is ambiguous. If it may be insufficient, then the jurisdiction is not shewn upon the face of the order. It is not merely that it may be an ordinary word, and be understood in the sense intended for, that renders a statement sufficient, but it must be so understood. In Reg. v. West Riding Justices (2 Q. B. 505), the word “occupy” was held not to shew a residence; although, as Mr. Justice Patteson said, " the word occupy, applied to a house,
conveys to any man the meaning of living in the house ; ninety-nine persons in a hundred at least would so understand it.” No case has shaken the principle of Rex v. Hulcott (6 T. R. 583), that no intendment as to jurisdiction in a conviction is permissible, and an order of justices is to be treated in the same way. (Day v. King, 5 A. & E. 359.) In Reg. v. Smith (1 New Mag. Cas. 484), under 2 & 3 Vict. c. 85, an order of bastardy was held bad, because made by the overseers, and without any statement that there were no guardians, or that the township formed part of a union. In the judgment, Reg. v. Ardsley (5 Q. B. 71) was commented upon, and shewn to be in accordance with the principle which forbids inferences to be drawn. [COLERIDGE, J.-In Reg. v. King's Lynn (1 New Mag. Cas. 584; 2 New Sess. Cas. 334), it was only stated that the paupers were now inhabiting, and that case was elaborately argued.] This point was omitted; but in Reg. v. Willatts (1 New Mag. Cas. 340; 2 New Sess. Cas. 6), where the question was upon the meaning of the word “intrude,” and Rex v. Binegar (7 East, 377) was referred to, Mr. Justice Coleridge observed that the words “ endeavouring to settle there were added. This shews the correctness of the usual form. The present form would be quite consistent with the
pauper being casual poor. It would state, supposing he were casual poor, that he was living in the parish, that he was receiving relief, and evidence of the settlement would be stated. What more is there here? The observations of Mr. Justice Le Blanc, in Rex v. Bury St. Edmunds (10 East, 31), are pertinent : “ Consistently with that statute (13 & 14 Car. 2), which enables the order of removal to be made, on complaint of the parish officers of persons coming to settle and inhabit in the parish, the form of the order states the complaint of the parish officers of St. James's, that the pauper came to inhabit in their parish; and without such complaint, the justices would have no jurisdiction. The coming to settle is an essential to the power of removal. (Rex v. St. Laurence Ludlow, 5 B. & Ald. 660.) In Rex v. Woolpit (4 A. & E. 205), although the Court were not agreed as to the effect of what the Sessions had done, yet there was no difference of opinion that the evidence ought to shew a purpose of residing. Then, if it is to be proved, it must also be stated. [ERLE, J.-Is not so much of the statute of Charles as you rely on repealed by 35 Geo. 3 ?] No, only so much as gave the power to remove where the person was likely to be chargeable. Secondly, does it appear that this order was made within the local limits of their jurisdiction ? Admitting that the words “ acting in and for” are sufficient, the order may have been made out of the county, although the complaint was made in it. It ought therefore to be shewn sufficiently that it was made within. If an order is bad, shewn to have been made within the jurisdiction, if the coinplaint be not also shewn to be within; then it must be equally bad, if the complaint alone is shewn to be within. (Reg. v. Stocktonupon-Tees, 1 New Mag. Čas. 354 ; New Sess. Cas. 16.) This exactly falls within the words of Patteson, J. in that case : “ There is nothing inconsistent with the supposition that the complaint was made out of their jurisdiction, and then they may have gone within their jurisdiction and made the order.” So here, the fact of the complaint alone being made within the jurisdiction, would satisfy the terms of the order. Thirdly, the order of removal is invalid, because of the insertion of the words “on sight hereof." It was correct enough before the Poor Law Amendment Act; but the 79th section of that Act makes a delay of twenty-one days necessary. It is true that, since Reg. v. Rotherham (3 Q. B. 776), it cannot be contended that an order, in an absolute unconditional form, is bad; but this does not authorize the present form, which leaves no distinction, and admits of no delay. It is to be obeyed immediately by the very terms used, which distinguishes it from Reg. v. Rother