« PreviousContinue »
to argue on a comparison of various clauses in a long Act, and to decide correctly. We think that clauses that confer this privilege ought to receive a liberal construction, because officers deserve the protection of a fair notice of the ground of complaint when they act bonâ fide. Compensation may then be obtained without further litigation, and there is no substantial inconvenience in requiring the party aggrieved to give such notice; on the contrary, he may be greatly benefited by the result just alluded to.
Rule absolute. E. W.
COURT OF QUEEN'S BENCH.
Michaelmas Term-November 18 and 30, 1846, and Hilary Term
February 10, 1847.
Grounds of appeal-Statement of relief in a third parish.
in a third parish by reason of that parish having relieved him whilst resident out of that parish, quære? But where, in answer to a settlement proved in the appellant parish according to the examinations, the
appellants, under a ground of appeal, that the pauper had been relieved by the parish of P., no party lo the appeal, from March, 1844, to May, 1815, while residing out of the parish, sought to give evidence of such relief, and the Sessions would not receive it, this Court, without deciding upon the admissibility of the evidence, held that the Sessions were right, as, upon the evidence offered of the relief only, they could
not properly have adjudged the settlement to be in that parish. THE THIS was an appeal, wherein the township of Whitehaven, in the county of
Cumberland, were respondents, and the township of Holme St. Cuthbert's, in the said county, were appellants, against an order for the removal of Elizabeth Palmer and her three children-Martha, aged eight years; Mary Ann, aged six years; and Thomas, aged four years—from the said township of Whitehaven to the said township or quarter of Holme St. Cuthbert's, as the place of their last legal settlement. The appeal was heard at the October Quarter Sessions, 1845, for the county of Cumberland, when that Court confirmed the said order, subject to the opinion of the Court of Queen's Bench upon the following case. "The examinations, certificate, and notice of charge ability and grounds of appeal were as follow:
The examination of Thomas Harrison, of Whitehaven, in the county of Cumberland, the relieving officer for the Whitehaven district of the Whitehaven Union, in the said county, taken on oath, was as follows:-“I am the relieving officer for the Whitehaven district of the Whitehaven Union, in the said county of Cumberland. The township of Whitehaven afore said is in my district. The pauper, Elizabeth Palmer, and her said three children, are now actually chargeable to the said township of Whitehaven. I have paid the said Elizabeth Palmer for several weeks back, and up to the present time, the sum of three shillings per week, for the maintenance of herself and her said three children, and I made the said payments, by order of the board of guardians of the Whitehaven union aforesaid, and charged the same, by order of the said board, to the said township of Whitehaven.
- THOMAS HARRISON." “ Taken and sworn, &c."
Thomas Palmer's examination was as follows :-“I am about fifty-seven years of age. At the time I became twenty-one years of age, and for forty days and upwards immediately before my attaining that age, my father, Nathaniel Palmer, rented a tenement at Edderside, in the township, quarter, or place of Holme St. Cuthbert's, otherwise St. Cuthbert's, in the parish of Holme Culthram, in the said county of Cumberland, belonging to one Edward Atkinson, of Maryport, in the said county of Cumberland. The rent paid by my father was 140l. per annum, and it was worth that sum. It consisted of a dwelling-house and farm-buildings, and upwards of 100 acres of land. My father occupied and resided upon the said tenement at Edderside for forty days and upwards immediately before I attained the age of twenty-one, when I went to service, and married from service, having never afterwards returned to live with my father as a part of his family on the said tenement at Edderside, and immediately before and up to the time of my attaining the age of twentyone years, and also from my attaining that age up to the time when I left his house and went to service as aforesaid. The time of my father so occupying the said tenement was before the year 1819. I attained the age of twenty-one before the year 1819, and also ceased to reside with my father as part of his
family, and went to service before that year. In the year 1815, I was lawfully · married to my present wife, Martha Palmer, by whom I have a son, called John
Palmer, born in wedlock. The said John Palmer is the husband of the pauper, the said Elizabeth Palmer. My said son deserted his wife about three years ago, and I do not know where he now is. My said son has no settlement except what he derives through or gains by me, and I never had any settlement, except what I derived from my father.
“THOMAS PALMER." “ Taken and sworn, &c."
The examination of Elizabeth Palmer, the wife of John Palmer, was as follows:
“I am about thirty-seven years of age ; I have heard the examination of Thomas Palmer of Bridekirk, in the said county of Cumberland, butcher, now read, and the John Palmer therein named is my husband. I was lawfully married to the said John Palmer at the parish church of Bridekirk, in the said county of Cumberland, on the 1st of September, 1836, and I have three children by my said husband-viz., Martha, aged eight years, or thereabouts ; Mary Ann, aged six years, or thereabouts ; and Thomas, aged four years, or thereabouts all of whích children are living with me. My said husband left and deserted me about three years ago, and I have not heard of him since, nor do I know where he is. I do not know where my said husband's settlement is. I am not aware that he has any settlement except what he derives from his father, and I do not know where his father's settlement is. I am unable to support myself and my said three children, and am now, together with my said three children, actually chargeable to the township of Whitehaven aforesaid. I am now, and have been for several weeks last past, in receipt of 3s. per week from the said township of Whitehaven, for the maintenance of myself and my three children, the same having been paid to me by Thomas Harrison, the relieving officer for the Whitehaven district of the Whitehaven Union, in which district the township of Whitehaven aforesaid is situate."
The 7th ground of appeal was:-“ That the legal settlement of the said Elizabeth Palmer, and the said alleged children, Martha, Mary Ann, and Thomas, is in the township of Papcastle, in the county aforesaid, and that while the said Elizabeth Palmer and her said children, from the month of March, 1844, to the month of May, 1845, resided in the said township of Whitehaven they received the sum of 3s. weekly as relief from the said township of Papcastle, and such relief was paid to them by the relieving officer of the said township of
Whitehaven, who made such payment as agent for and on behalf of the overseers of the said township of Papcastle.”
After the respondents had proved the settlement of the paupers in the appelIant township (as in the examinations stated), the appellants' counsel, in his address to the Court, stated that he should shew that the paupers were settled in a third township, viz. the township of Papcastle, by reason of the said township of Papcastle having relieved thein whilst resident out of the said township of Papcastle.
The respondents' counsel objected that the appellants were not entitled to set up a settlement of the paupers in a third township under the grounds of appeal ; for that the said grounds of appeal did not particularize the nature or grounds of any settlement in the said third township, as required by the Poor-law Amendment Act, and the decisions thereon, but merely alleged in general terms that the legal settlement of the said Elizabeth Palmer and her said three children is in the township of Papcastle; that relief is not a substantive ground of settlement, and comprises none of the ingredients of a settlement, and is admissible in evidence only on the ground of its being an admission by the party giving such relief, and is receivable against such party on the same ground as any other admission, but is not admissible as evidence against any other party, than the party giving such relief; and that relief therefore by the township of Papcastle, though good evidence against Papcastle, if Papcastle had been a party to this appeal, was no evidence whatever against the respondents on the trial of the present appeal; that such evidence, even if admitted, could not amount to an answer to the case proved by the respondents, for, if received, it could not have amounted to proof of a settlement in Papcastle, but only to an admission which Papcastle might easily explain on a future removal to Papcastle
, and thus the respondents might lose an admitted settlement in the appellant township of Holme St. Cuthbert's without gaining another in any other place. The Court of Quarter Sessions, after hearing the arguments on both sides, decided that the objection taken by the counsel for the respondents was a valid one, refused to allow the appellants to give evidence in support of the statement of the counsel for the appellants. The order of removal, therefore, was confirmed ; subject, however, to a case, which provided, that if the Court of Queen's Bench shall be of opinion that the above decision of the said Court of Quarter Sessions was right, then the said order of removal and the said order of Sessions are to stand confirmed. If, however, the Court of Queen's Bench shall be of a CODtrary opinion, then the said order of removal and the said order of Sessions are to be quashed.
Ramshay and P. Taylor, in support of the order of Sessions.—The Sessions were right in rejecting this evidence, as it only amounted to an admission by the parish of Papcastle, which might be explained away. It was not a settlement. [
[COLERIDGE, J.-You may remove upon it.) Because there it is used as evidence against those who made the admission. Here it was to exonerate the appellant parish from a distinct settlement proved by the respondents against them. The giving relief only shews the opinion of the parish upon the facts then known, that the pauper is settled there, as is pointed out by Lord Ellenborough in Rex v. Maidstone (12 East, 553). [COLERIDGE, J.-Suppose evidence of apprenticeship in a third parish had been tendered, that might also turn out to be open to explanation or answer, and yet it must be received.] That is not an admission, but a fact. It may be that the settlement in respect of which the relief was given is lost, as by a removal beyond the ten miles, in case of an estate settlement. [COLERIDGE, J.-Here the Sessions refused to receive any evidence. Suppose a man had been in a parish for twenty years, and to
have received relief from a third parish during the whole of that time, do you go the length of saying, that evidence of that is not to be received, and that he is to be considered settled in some other parish than that which has given the relief?] That might be a case of hardship, but in principle it would not be admissible, for it would be prejudicing one parish by the admission of another, over which they had no control, or were in no way party. The removing parish might thereby lose the benefit of the admitted settlement in the appellant parish, and yet fail when they removed to the other, because the relief would be explained. [COLERINGE, J.—Is it not a fallacy to call it an admission ? It is an act done.] It is no more than evidence of some indefinite settlement. (Reg. v. Carnarvon, 2 Q. B. 325, per Williams, J. ; Rex v. Wakefield, 5 East, 335.) All settlements are derivable from some statute, and this is given by none. Another settlement ought to have been shewn by the appellants.' [Erle J.-Not conclusively. This is no settlement at all. There is no legal presumption flowing from such relief. (Reg. v. Yarwell, 9 B. & C. 894.) [Erle, J.-In every case where a settlement in a third parish is set up, the same hardship now suggested might arise.] In those cases, if the facts stated in the ground of appeal are true, the settlement will be established by them; but here the result of the facts is uncertain. [WIGHTMAN, J.-Could it not have been inquired into before the removing justices ?] There is a general inquiry into the pauper's history, so as to ascertain his settlement.
Cowling and Greig, contrà.—The evidence was admissible. In Rex v. Coleorton (1 B. & Ad. 25), where the effect of relief given to a pauper in the parish, it was taken for granted that relief given out of the parish was evidence. Ít should have been admitted, and the respondents called upon to answer it. In Reg. v. East Winch (12 A. & E. 697), there was a ground of appeal similar to the present. [WIGHTMAN, J.-Suppose the officers of the third parish had said, “We admit the pauper is settled here,” would that have been evidence ?] There is more in this case ; for there is an act done by the parish officers in the course of their duty, and against their interest. Where admissions are the natural consequences of particular facts, those facts will be presumed ; as in the case of payment of rent, an admission of seisin against all parties follows.. (Doe dem. Williams, Cowp: 621.) Adjourned.
On November 30 the argument was resumed by
Greig.— It will be important for the Court to observe that the settlement relied upon by the respondents was a derivative settlement from the pauper's grandfather as far back as 1809. Against this, the seventh ground of appeal set up relief granted continuously in Papcastle from March, 1844, up to May, 1845. There is primâ facie a strong presumption that some settlement had been gained between 1809 and 1844, either by the grandfather, father, or the pauper; and this is in favour of the appellant parish, which proposed to shew that relief had been given up to six weeks before the order, and for fourteen months previous. The argument in support of the order of Sessions must be, that under no circumstances can a settlement by relief in a third parish be set up by the appellants. This is said to be law, because settlement by relief is no more than an admission by a third party, and cannot, therefore, be used against the respondents. We contend, however, that it is an acknowledgment of a settlement by an act done, and that it is a mistake to consider that an admission and such an acknowledgment are mere convertible terms. It is an act duly and formally done by persons in the exercise of their official duties. Nolan mentions the only three ways by which overseers can bind the parish. (2 Nol. 134.) These are: first, by giving relief to paupers out of the parish; second, by granting a certificate ; and third, by not appealing against an order of removal. Each of these three are more than admissions: the two first are acts done, and the third an omission to do an act, which it is presumed they would do but for the existence of the settlement established by the order. These acts and this omission operate by way of acknowledgment, and the result is a settlement. The argument on the other side is grounded solely upon a consideration of the modus operandi. It is objected that relief is not a settlement, but only evidence of one. This is a dis tinction without a difference. Examinations in every case are only evidence of a settlement. The relief, if unexplained, will confer a settlement. A settlement by relief unexplained is as indefeasible a settlement as any other. For the respondents it was suggested that every settlement must be a substantive one created by statute, and that this was not one. But a settlement by estate is not the creature of statute, and yet it is a substantive head of settlement. Relief of a non-resident pauper confers on him a title to be relieved by the parish which so acknowledges; it therefore furnishes a ground of removal, and if so, confers a settlement. (Rex v. Edwinstowe, 8 B. & C. 671.) There, it appeared that the pauper, whilst residing at Mansfield, applied for relief to the overseer of Edwinstowe, who happened to be at Mansfield on a market-day, and he gave her 3s. as relief, and told her if she wanted further relief she should apply to him at Edwinstowe, and he would give it to her. She went accordingly a fortnight afterwards, but the same and another overseer refused her relief, saying that she must throw herself upon the parish of Mansfield. She did so, and was removed to Edwinstowe, and Edwinstowe appealed. At the trial of the appeal these facts were proved, and no evidence being given on the other side to rebut the presumption arising from them, the Sessions held that the pauper was settled at Edwinstowe, and confirmed the order. Afterwards, in the Court of King's Bench, it was objected that, as the relief was given by the overseer whilst out of his own parish, where he had no opportunity of ascertaining whether the pauper was settled in his parish or not, it ought not to be admitted as evidence of the settlement; but the Court held that it was evidence of the settlement, and it was competent for the Sessions to form the conclusion from it which they had done, although probably the Court would have done otherwise. It is clear also that a derivative settlement may be deduced from the species of acknowledgment now under consideration. (Rex v. Wakefield, 5 East, 335.) There, upon the trial of an appeal against an order of removal from Alverthorpe to Wakefield, the respondents proved that the appellants had, for nearly forty years, relieved the father of the pauper's husband, and several members of his family, whilst they resided in another township. On the part of the appellants it was merely proved that the pauper's husband was born at Alverthorpe, and the Sessions confirmed the order. The Court of King's Bench held, that as there was evidence on both sides, each party having made out a primâ facie case, it was for the Sessions to decide upon it, and they had
Thus the relief of the pauper's husband's father, a relief doubly derivative, preponderated over the husband's birth settlement, which was declared the weakest of settlements. In Rex v. Stanley-cum-Wrenthorpe (15 East, 350), upon the trial of an appeal against an order of removal from Leeds to Stanley, the appellants proved that the pauper's grandfather came to Stanley with a certificate from the parish of Ossett in 1727, and in answer to this, the respondents proved that the appellants had at different times relieved the pauper and his family whilst residing at Leeds and Wakefield, and the Sessions, thinking this a sufficient answer to the prima facie case made out by the certificate, confirmed the order. The Court of King's Bench held that the Sessions had drawn the right conclusion. From 1727, there was ample time for the certificate to be