ham. Lastly, the jurisdiction is not shewn by the words "acting in and for." It is not clear that they were justices. It is said that acting is in itself some evidence of their jurisdiction; but this is not to be inferred where the act itself is complained of.

LORD DENMAN, C. J.-There are four objections made to this order. Three of them are too frivolous to call for further comment. As to the point upon the coming to inhabit, we will take time to consider, but principally because of the language used by various judges, which seems to throw a doubt upon the subject.

Judgment, Dec. 17.

Cur. adv. vult.

LORD DENMAN, C. J. delivered the judgment of the Court.-We took time to consider a single point, whether the order of removal, in stating the complaint before the justices, alleged all the circumstances necessary to give them jurisdiction? The words on which that question arises are these: "That Ann Sheridan, a single woman, aged sixty-four, intruded and came into the parish of St. Marylebone, and had actually become chargeable to and is now inhabiting in the same parish." It is objected that the words contained no statement of the pauper having come into the parish with the intention of settling there, or of inhabiting, and it is contended the words "come to settle" or "come to inhabit," or words unequivocally expressive of such intention, are necessary. We consider it to have been completely established ever since the case of Rex v. St. James's in Bury St. Edmonds (10 East, 25), that no pauper is removable from a parish unless he be there as an inhabitant, or had come there to settle or inhabit; the words "settle" and "inhabit" being for this purpose convertible terms, neither of them purporting acquisition of a legal settlement, or an intention of permanent residence. The purpose, therefore, may be temporary; but still there must be purpose, at least, of remaining there, as distinguished from that of merely visiting or passing through the place. The particular mischief against which the 13 & 14 Charles 2 provided the remedy of removal, was that of persons endeavouring to settle themselves, in this limited and temporary sense of the word; and the remedy having been found to produce injurious consequences, which the certificate system introduced by the 8 & 9 Wm. 3 had not prevented, the 35 Geo. 3 was passed to prevent the removal of such persons, unless they should become actually chargeable, encouraging thereby the free change of abode among the labouring classes, and limiting the power of the magistrates as to their removal. What we have now stated has been long generally understood, and the forms of removal which are given in the best books on the subject contain an allegation that the paupers had come to settle or to inhabit. The present order wants these words, and it is argued, either that we ought to allow no equivalents, or that none are to be found in it. We feel all the inconvenience of substituting for terms commonly understood, and having acquired a well-known meaning, any others supposed to be of equal force. It leads, as in the present case, to uncertainty, litigation, and expense; at the same time, when the terms omitted are not terms of art expressly appropriated to express a legal idea, and when no statute prescribes any particular form in which the power, as given, is to be exercised, we have no authority to prescribe the terms, or limit the form, so strictly as the objection requires. We are bound, however, to see that the terms used clearly state all that is necessary to give the jurisdiction; and whether that is done in the present case, mainly depends on the language of the 35 Geo. 3, c. 101, s. 1, under which statute the magistrates now exer

cise the power of removal originally given by the statute of Charles. The statute first named repeals so much of the statute last named as enables justices to remove any person likely to become chargeable to the parish in which he shall come to inhabit, and then enacts that no poor person shall be removed from the parish where he is inhabiting, to the place of his last legal settlement, until he shall have become actually chargeable to the parish in which he shall then inhabit, in which case two justices are thereby empowered to remove him. The power to remove to the place of last legal settlement was therefore expressly given on these two conditions only, that the person be inhabiting in the parish, and be actually chargeable. Nothing is said of the purpose for which the residence first commenced. Whether, in any case, a person is inhabiting or not, the justices have the jurisdiction, in the first place, to determine. The case to which we have referred clearly points out what are the requisites to constitute inhabitancy within the meaning of the statute; at all events, we have not to inquire at present whether they have rightly determined in the present case. It is obvious, however, that this is a much more extensive inquiry than that which the objection would substitute. To inquire with what intention a person first entered a parish must be very idle, except as the intention is collected from his acts; and if these shew he was of his own choice-that is, without the restraint of sickness or imprisonment-residing, or preparing to reside, there permanently; in other words, if he is inhabiting there, it ought to be taken, for the purpose of removal, that he came to inhabit, and that may be a good reason why, as we have noticed, the statute says nothing as to the purpose, departing in this respect from the language of the statute of Charles. That statute contemplating the removal of persons likely to be chargeable within forty days after coming into the parish, the coming was recent, and the actual purpose more easily ascertained. The statute of George allows of no removal until the actual chargeability, and therefore supposes the removal more commonly after longer residence. We conclude, that, although the ordinary forms of coming to settle or to inhabit are correct, because he who comes to settle and inhabit, and is actually chargeable, undoubtedly inhabits, yet the language of this order is free from objection, as satisfying the statute under which the magistrates acted. This rule, therefore, will be discharged, and the order of Sessions confirmed.

Rule for quashing the order of Sessions discharged.

B. & W.

COURT OF QUEEN'S BENCH.

Michaelmas Term.-November 3, 1846.

BOWNES v. MARSH.

Bastardy bond-Stamp-Evidence.

A bond in a penalty of 1001., conditioned to indemnify a parish from all expenses incurred in the birth, education, and maintenance of a bastard child or children likely to be born, is sufficiently stamped with a 11. 15s. stamp.

D1

EBT, by the parish officers of Mansfield, in the county of Nottingham, on a bond to them in the penalty of 1007., conditioned to indemnify, from time to time, and at all times thereafter, the churchwardens and their successors, as well as the other inhabitants, against the expenses incurred by the birth, education, and maintenance of a bastard child or children, then likely to be born. This bond was stamped with a 17. 15s. stamp, and it was objected

at the trial that that was insufficient. Several issues were raised upon the record, one of which was found for the defendant, and the rest for the plaintiff. Whitehurst now moved to enter a nonsuit.-The ground of this application is, that this is a bond coming within the words of the Stamp Act (55 Geo. 3, c. 184, Sch. Pt. 1), imposing a 251. stamp upon bonds given as a security for the repayment of a sum or sums of money to be thereafter lent, advanced, or paid, or which may become due upon an account current, together with any sum already advanced or due, or withheld, as the case may be, where the total amount of the money secured, or to be ultimately recovered thereupon, shall be uncertain and without any limit. Here the penalty of the bond is 100l.; but it is given to secure an indefinite amount, and it is not the penalty, but the condition of the bond, which regulates the amount of the stamp. (Scott v. Allsop, 2 Price, 20.)

LORD DENMAN, C. J.-I think this instrument is sufficiently stamped. That part of the schedule to the Stamp Act which is referred to appears to me only to relate to advances of money of indefinite amount.

COLERIDGE, J. concurred.

WIGHTMAN, J.-The clause referred to speaks of an "account current." ERLE, J.-This bond comes under the head of instruments "not otherwise charged" in the schedule to the Stamp Act. The Court of Common Pleas has held that indemnity bonds generally fall under that head.

Rule refused. (a)

B.

COURT OF EXCHEQUER.

Michaelmas Term.-November 5, 1846.

JONES and OTHERS V. FOTHERGILL and OTHERS. (b)

Costs of appeal-Taxation.

The costs necessarily incurred by parish officers in support of an appeal against an order of removal, which the respondents abandon previous to trial, cannot be recovered, even under a written agreement to pay them, although the appellants get the order quashed by the Court of Quarter Sessions, and their costs taxed by the proper officer, unless such costs are taxed during the sitting of the Court.

CHII

HILTON moved for a rule to set aside the nonsuit in this case, and to enter a verdict for the plaintiff, with 21. 9s. damages. This was an action of assumpsit, brought by the plaintiffs, as churchwardens and overseers of the parish of Llanspiddid, in the county of Brecon, for the year 1842, against the defendants, as churchwardens and overseers of the parish of Bedwellsey, in the county of Monmouth, in the same year. At the trial it appeared that the defendants, in the year 1842, had been served with notice of appeal against an order of removal of a pauper and her six infant children to the parish of Llanspiddid; and in consequence of the defendants finding the removal could not be supported, they gave the plaintiffs notice of abandonment in writing, which stated, amongst other things, "that they thereby abandoned the said order of removal, and did agree to take back the said paupers, and to save harmless the said parish of Llanspiddid the expenses attending the said order of removal." The trial of the appeal was to have taken place on the 27th June, but in consequence of plaintiff's receiving the above agreement on the 26th, they merely

VOL. II.

(a) See Lopez v. De Tastet, 8 Taunt. 712.

(b) Reported by J. A. FOOT, Esq., Barrister-at-law.

D

sent to the Quarter Sessions to get the order of removal quashed. The order was quashed with costs as against the defendants; the costs, however, were not taxed during the sitting of the Court, but subsequently, when the sum of 331. 8s. 6d. was allowed, viz., the sum of 221. 9s. for costs incurred prior to the receipt of the notice of abandonment, and 107. 19s. 6d. for those incurred subsequently. A copy of the order of costs was served upon the defendants, who refused payment, upon the score that the bill of costs was not taxed sedente curia. The plaintiffs, not being able to recover costs in the regular way, brought this action upon the agreement. The declaration, after reciting these facts, stated the consideration for the defendants' promise to be, "that the plaintiffs, as such parish officers as aforesaid, would agree with defendants, as such parish officers aforesaid, not to incur any such additional expenses and costs of witnesses in and about the trial of the said appeal," &c. It then averred a promise by the plaintiffs as such parish officers, and alleged as a breach, that the defendants did not pay the said plaintiffs, as such parish officers, the said costs, charges, and expenses. There were also counts for work and labour, money paid, and on an account stated. To this the defendants pleaded "not guilty" by statute; and at the trial it was objected for them, that the consideration was not proved, as stated; that the agreement in question contained no such promise as that stated in the declaration, nor circumstances from which that promise could be inferred, for the debt was a parish debt, and the defendants did not mean to pledge their personal responsibility, but the responsibility of the parish. The learned Baron, being of that opinion, nonsuited the plaintiffs, reserving leave to move to enter a verdict for them for the expenses incurred previous to the abandonment, and

Chilton now moved accordingly; but

The COURT stated, that whatever desire they might have to assist the plaintiffs, they could not do so under the present circumstances; for, in order to enable them to do so, it was necessary to shew that the defendants bound themselves personally, which it was clear they did not intend to do. Their intention evidently was to bind the parish; but having lulled the plaintiffs into a security which caused them to neglect the regular mode of proceeding, they now refuse to abide by an arrangement which certainly is not binding on them personally. If the plaintiffs had gone to the Sessions and taxed their costs in the regular way, they would have bound not only the defendants, but also the existing parish officers. Not having done so, their remedy was gone.

Rule refused.

COURT OF QUEEN'S BENCH.

Michaelmas Term.-November 20, 1846.

SLATER v. HODSON and OTHERS.

Custody of parish documents—Bastardy bonds-Evidence.

Certain old bastardy bonds, given during a series of years for the indemnity of a parish, were now produced from the workhouse of the union in which that parish was situate. The master of the workhouse, who produced them, could give no other account of them than that they had been brought there, together with other parish documents, by some of the paupers belonging to that parish, and had been kept by him

ever since:

Held, that the evidence of custody was sufficient to render them admissible in evidence upon the trial of an issue directed to try the question whether that parish was prevented by its largeness from reaping the benefit of the statute 43 Eliz.

THIS

HIS was a feigned issue, directed by this Court to try the question whether the parish of St. Cuthbert, Carlisle, was prevented, by reason of its largeness, from reaping the benefits of the statute 43 Elizabeth. The issue had been directed, in consequence of application having been made to this Court to quash orders which had been made by the defendants for the appointment of separate overseers for eight distinct townships in that parish. Several issues were raised as to the various townships; but at the trial, which took place before Cresswell, J., at the last assizes for the county of Cumberland, the jury found a verdict substantially for the plaintiff. In the course of the trial the plaintiff offered in evidence twelve bastardy bonds, commencing in date as early as 1716, given to indemnify the parish of St. Cuthbert against the expenses of maintaining bastard children. They were produced by Mr. Brown, the master of the workhouse belonging to the union, which comprised all the townships; and he stated that he had been master of the workhouse since 1838; that in 1842, some paupers brought a cartload of papers and bonds, appearing to be parish papers, some of them in a chest and some not; that the bonds produced were amongst those so brought, and that they had been in his custody ever since; that he had made no inquiries about them, and did not know whence they had been brought. Upon this state of facts, it was objected that the bonds did not appear to come from the proper custody, and were therefore inadmissible; but the learned judge overruled the objection and admitted the evidence.

Knowles, in the present Term (Nov. 5), moved for a rule nisi for a new trial, on the ground (amongst others not necessary to be noticed) that the evidence had been improperly received. The union work house is not the proper custody for documents of this nature: the parish chest, kept in the vestry-room of the parish, is the place where all such documents should be found; and if they are kept elsewhere, it is, at all events, incumbent on the party producing them to call the parish officers and explain the circumstance by their evidence. [COLERIDGE, J.-Actual legal custody is not necessary; it is enough if the documents are found in the place where any one might reasonably expect to find them; and can it be said that the union workhouse is an improbable place of custody?] Perhaps not, if no explanation could be obtained; but no attempt at explanation was made here.

Cur. adv. vult.

LORD DENMAN, C. J. now gave judgment.-We have seen the learned judge, and looked at his note with respect to the custody of the documents in