1815. Wednesday, In order to of ore part, and that upon ap plication to the pauper, who was then ill and died soon afterwards, to know what had declared that The KING against The Inhabitants of MORTON. UPON appeal against an order of two justices for the removal of Elkana Aykroyd, his wife and children, from the township of Haworth to the township of Morton, the sessions for the West Riding of York confirmed the order, subject to the opinion of this Court upon the following case: The pauper Elkana served one Boadley as an apprentice for several years in Morton. The indenture become of it, he was not produced, but in order to shew that the service was performed under an indenture duly executed, and that due diligence had been used to discover it, the when the in denture expired it was given to him, and he burnt it long since; and it was also proyed that inquiry was made of the executrix of the master, who said that she knew nothing about it: Held that this proof was sufficient to let in parol evidence of the contents of the. indenture. township of Haworth called a witness, who proved that overruled the objection, and the township of Haworth then gave parol evidence of the due execution and contents of the indenture, and of the service under it. And the question now made was, whether there was sufficient proof of the loss to let in this parol evidence, J. Williams and E. Alderson, who opposed the order of sessions, and were called upon by the Court, contended there was not; for that independently of the declarations of the pauper, which ought not to have been admitted, the only evidence was, that inquiry had been made of the executrix of the master, who said she knew nothing about it, whilst all search was negatived among the papers, where, if the indenture existed, it would naturally be, Granting that the declarations of the pauper were evidence so far as to shew that he had not the indenture, which is the utmost that they could be, still, without reasonable evidence of the loss of the indenture, parol evidence of its contents ought not to have been admitted. And Rex v. Castleton (a) decided that an inquiry of the representative of the master, and an answer given by her, such as is stated in this case, was insufficient evidence of the loss. Here, therefore, for want of a sufficient search, the proof was defective to let in parol evidence of the contents, Lord ELLENBOROUGH C. J. The making search, and using due diligence, are terms applicable to some known or probable place, or person, in respect of which diligence may be used. If what the pauper (4) 6 T. R. 236. 1815. The KING against The Inhabi tants of MORTON. VOL. IV, E said, 1815. The KING against The Inhabi tants of MORTON. said, when he was inquired of, was not admissible, then the indenture is not traced into his hands, and being functus officio, there was no particular reason why it should be with him. If, on the other hand, what he said was admissible, then, although it may not amount to proof of the fact that the indenture was destroyed by him, yet it may be so far evidence as to afford a reason why farther search was not made with him. Suppose this had been an inquiry of a merchant for some commercial purpose, and he had given a similar answer, would it not have been sufficient? It is like a non-production upon request, and the party accounts for it. Not that I mean to pronounce that this was evidence of the fact of the indenture having been burnt by the pauper; though there might be some ground for saying that, as the pauper was perfectly free from all interest, he had no bias to make the declaration he did. But without giving it such an effect, it is evidence that such information was obtained as precluded the necessity of any farther search in that quarter, and discharges the parties of any laches in not making it. LE BLANC J. In Rex v. Castleton there was proof of the existence of one part of the indenture; it was traced into the possession of a particular person, and no farther proof was given to shew what had become of it. Here is no proof that the instrument ever existed in the possession of the pauper, unless his declaration is to be taken as evidence; and if it is, we find him declaring in the same breath that it no longer existed. Then follows the application to the executrix of the master, and her answer is, that she knew nothing about it. It seems to me, therefore, that this evidence shewed that the parties had used reasonable diligence, and that there is nothing in the objection: and I am a little surprized that the Sessions should have thought this a fit subject for a case. BAYLEY J. Application has been made to all parties likely to have or know any thing of the instrument, and no trace of its existence is obtained. Suppose there had been a dozen places at which it might possibly have been traced, would it not have been enough to make inquiry at each, or must the parties have insisted on making search at each? In Rex v. Castleton the indenture was traced into the hands of an individual, who, upon inquiry made, did not say that she had not got it, but only that she could not find it. DAMPIER J. The answer given to the inquiry in Rex v. Castleton was a reason why the party should have proceeded to make farther search, because it was proved that the indenture once existed in the hands of the individual, and she did not say that she had it not, but only that she could not find it. But here the reason is all the other way; for when the pauper, by whose information alone the parties were acquainted with his having had the instrument, at the very same time declared that it was burnt, why should they go on to search among his papers? This evidence, therefore, affords a reasonable ground for not pursuing their search with the pauper, whereas the evidence in Rex v. Castleton shewed that a farther search was necessary, Order of Sessions confirmed. Scarlett was in support of the order. 1815. The KING against The Inhabitants of MORTON. 1815. Wednesday, An order for a married wo. The KING against The Inhabitants of YSPYTTY. the removal of UPON appeal against an order of two justices, removing Anne Williams, her daughter, and son, from Llandyrnog to Yspytty, in the county of Denbigh, the Sessions confirmed the order, subject to the opinion of this Court upon the following case: man (not stating her to be such) and her children to Y., adjudging that the lawful settlement of her and her children is in Y, was held well without adjudging that Y. was her husband's settlement; and proof by the mother of the husband that he gained a settlement in Y. by hiring and service was held sufficient without calling the husband, although it ap peared that he was in this country. The pauper Anne is the wife of Griffith Williams, a soldier in His Majesty's service at Woolwich. The mother of Griffith the husband proved that he gained a settlement about 11 years ago in Yspytty, by hiring and service, and that he had not to her knowledge gained a settlement elsewhere. This was the only evidence to prove the settlement of the husband, or of the paupers, and no attested copy was produced of the husband's examination upon oath, pursuant to the statute 54 G. 3. C. 25. s. 69., or any other statute. The case set forth. the order of removal, which was for the removal of Anne Williams, (not stating her to be the wife of any one,) Jane her daughter, aged three years, and Griffith her son, aged two years; adjudging that the lawful settlement of the said Anne and her children (not that the settlement of her husband) was in Yspytty. Peake, in support of the order of Sessions, relied on Rex v. Bucklebury (a), to shew that the order was well enough in point of form, although it did not state that Yspytty was the settlement of the husband. (a) I T. R. 164. Gurney, |