Yardley, to support the sufficiency of the examinations.-Reg. v. Lilleshall is directly in favour of the respondents. There a pauper was removed to parish A. on examinations which shewed that he had gained no settlement in his own right, and that when the pauper was twenty-seven years old, his father had received relief from parish A., whilst residing elsewhere; and it was held sufficient, for that emancipation was not to be presumed, although it was not stated that the pauper, at the time in question, was resident with his father, or formed part of his family. This being a derivative settlement, it is impossible to say when it originated. It may have been existing one hundred years. It is not to be presumed that it was gained subsequent to his son's emancipation. [WIGHTMAN, J.-If time is important, must not you shew it ?]

LORD DENMAN, C.J.-You may shew priority, if you do not shew the actual Here the existence of the settlement before 1812 is not shewn

commencement.

in

any way.

Order of Sessions confirmed.

E.W.

COURT OF QUEEN'S BENCH.

Easter Term.-Wednesday, April 28.

THE QUEEN V. THE INHABITANTS OF FLIXBY.

Examinations-Hiring and service, residence during.

The examination of the pauper, setting up a settlement by hiring and service, after stating the hiring to serve on a farm for a year, continued thus:-" I duly entered upon the said service, and under and during the same I resided and slept in the said parish of Flexby :

Held, that this sufficiently shewed residence, so as to give a settlement.

ON

N appeal, the Sessions confirmed the order, subject to a case, reserving the following question upon the examination as to the sufficiency of the statement of residence.

Willimore and D'Eyncourt, in support of the order. The question is as to the meaning of the word "during." The pauper sufficiently states a hiring for a year to serve upon a particular farm, and proceeds thus :— "I duly entered upon the said service, and under and during the same I resided and slept in the said parish of Flixby, serving the said A. B." The other side contended that this was indefinite. But "during" properly means continuity, as durante vitâ, durante viduitate. This point has already been decided in Reg. v. Anderson (2 New Sess. Cas. 479; 2 New Mag. Cas. 30). There, in the statement of an office settlement, the allegation that the officer served the office for many years, to wit, 1832, 1833, and 1834, &c., "during which years he was an inhabitant and resident within the parish," was held

sufficient.

Wildman and Denison, contrà.-" During" is uncertain in its meaning; it would be satisfied by a residence for several days, at intervals, as well as by a continued residence. They cited passages from Locke and Hume as illustrations. The statutory term is "for," when a period is intended, as for "seven years." This could not be treated as an affidavit upon which perjury could be assigned. (8 & 9 Wm. 3, c. 30, s. 4; Re Taylor, 5 B. & Ad. 338; Ward's Bail, 1 C. & M. 28; Sacheverell v. Froggatt, 2 Wms. Saund. 369; 3 Bulst. 136; and various other cases were cited.)

LORD DENMAN, C. J.-Notwithstanding the very great ingenuity of the various legal and philosophical arguments brought to bear upon this, I think a few words will dispose of the question. When we find that the correct and grammatical meaning of the words used fully answers to the requirements o. the statute, we may be satisfied, without inquiring whether, by an incorrect usage in common parlance, it might not mean differently. PATTESON and WIGHTMAN, JJ., concurred.

ERLE, J.-It is scarcely possible for language to be used which is not capable of more meanings than one; but I think that in sessions cases, as well as in others, we should endeavour to give effect to the intention of the parties as well as we can.

E. W.

Order confirmed.

BAIL COURT.

Easter Term.-May 4, 1847.

(Before Mr. Justice COLERIDGE.)

THE QUEEN v. THE JUSTICES OF SOMERSET.

Mandamus-Sessions-Notice of appeal.

An order of removal having been served, the appellants entered and respited an appeal, and subsequently gave the respondents notice of their intention, at the next sessions," to enter, prosecute, and try," &c. The attorney for the appellants fearing, however, that this notice might be deemed bad, for the reason of its containing the words " to enter," he caused another notice to be served, similar to the former, but withdrawing it, and omitting the said words" to enter." At the sessions, the appellants proposed to stand upon their first notice, whereupon the respondents produced the second notice, and the appellants not being in a situation to prove the time of its service, the Sessions dismissed the appeal. On motion for a mandamus to enter continuances and hear,— Held, that the Sessions were right; also, that their decision being upon a fact properly before them, this Court could not interfere.

N Michaelmas Term, Prideaux obtained a rule calling upon the justices of

them to enter continuances and hear an appeal against an order of removal. It appeared that on the 4th of May, 1846, the order of removal was made, and that the examinations, &c. were duly sent on the 18th; but no notice of appeal having been given, the pauper was removed on the 12th of June. At the next sessions, held on the 30th of June, an appeal was entered and respited, and on the following 8th of September, notice and grounds were duly served, the notice beginning in this way :-" This is to give notice, that we, the undersigned, * *

*

*

*

*

do intend, at the next general quarter sessions, * * to enter and prosecute and try an appeal," &c. The attorney for the appellants thinking that this notice was irregular, from the fact of its stating that it was the intention of the appellants to enter the appeal, it having in fact been already entered, caused one of the copies, signed by the appellants, to be altered by omitting this allegation, and withdrawing the previous notice. This second notice was served on the respondents, not having been sanctioned by the appellants themselves. On the appeal coming on for trial at the October sessions, the appellants were required to prove their notice, whereupon proof of the first notice was given, upon which the respondents called the appellants'

attorney into the box, who stated that he had directed the first notice to be withdrawn, to be altered, and reserved. The amended notice was then shewn him, and he said he believed that to be the notice he directed to be served, but he did not know of his own knowledge that it had been, and he was unable to say when. Upon this, the Sessions dismissed the appeal. The order of Sessions dismissing the appeal was in these words:" This appeal dismissed, the notice of appeal not being sufficiently proved."

Barstow and Fitzherbert shewed cause. The Sessions were right in dismissing the appeal, since it was sufficiently proved that the first notice was withdrawn by the second, and as there was no evidence of the time when the service of the second notice was effected. The question was one of fact properly within the jurisdiction of the justices, and as they have decided upon it, this Court will not interfere. (Reg. v. The Justices of Kesteven, 3 Q. B. 819; Reg. v. The Justices of Flintshire, 2 Dowl. & L. 146; Reg. v. The Justices of the West Riding, 1 New Sess. Ca. 247; Reg. v. The Justices of Gloucestershire, 1 B. C. R. 291; Reg. v. The Justices of Flintshire, 2 New Sess. Cas. 572.)

Prideaux, Pashley, and Phinn, in support of the rule.-The appeal has not been heard upon the merits, but has been dismissed upon a preliminary point, and as the Sessions have erred in point of law, the mandamus ought to go; for as the second notice was obviously bad, it had the effect of again setting up the first notice, which was in all respects a valid notice. (Reg. v. The Justices of Surrey, 1 B. C. R. 12; Reg v. The Justices of Kesteven, 3 Q. B. 819; Reg. v. The Justices of Flintshire, 2 New Sess. Cas. 572.)

Cur. adv. vult.

COLERIDGE, J.-In this case I formed a judgment at the end of the argument decisively upon the subject; but having some doubts on my mind whether or not I had caught all the facts correctly, I have looked into the affidavits. The material facts appear to be these:-The notice given by the attorney for the appellants was "to enter, prosecute, and try" the appeal; and afterwards thinking that the notice was bad, in stating that it was the intention of the appellants" to enter to enter" the appeal, when, in point of fact, it had been entered at a previous sessions, he resolved upon countermanding that notice and giving a fresh one, omitting those words. At the sessions, on the appeal coming on for trial, I think reasonable evidence was given of the first notice having been withdrawn, and also of the alteration of the second notice; but the witness who served this second notice was not called, and therefore the appellants were unable to prove on what day the second notice was, in point of fact, served. On this state of facts, the respondents contended that as there was no evidence of the alteration of the second notice after it had been signed by the parish officers, and as there was no satisfactory evidence of when it was served, it did not invalidate the first notice, which was still a good and subsisting notice. On the other hand, it was contended by the respondents, or is so argued now, that the second notice, though it amounted to a good countermand of the first, was not good as a fresh notice of trial, as there was no proof of its having been served the requisite number of days; and upon hearing the arguments of counsel, the Sessions dismissed the appeal, upon the ground of the notice of appeal not being sufficiently proved. If the Court were wrong in so doing, the mandamus ought to go, but otherwise it ought not. I think, however, upon consideration, that the conclusion they came to must be taken to have been a correct one, upon the facts. Upon looking attentively to all the circumstances, I do not see any reason to alter the view I first took of this case. The original notice was, no doubt,

perfectly good; for the insertion of the words "to enter " only amounted to a redundancy, and may have been rejected; but if it were shewn to the Sessions that this notice was actually withdrawn, then there was an end to it, however good it may have been. Then was the second good or not? It was undoubtedly good as a countermand of the first, since a notice of trial may be countermanded at any time; and the attorney for the appellants was armed with a sufficient general authority to give it of his own accord. But although the notice may have been good as a countermand, it would still be bad as a fresh notice of trial, from the circumstance of there being no proof of the time when it was served. I think, therefore, that the Sessions were justified in holding that there was no sufficient evidence of the notice of appeal; and as it was a question of fact entirely for their consideration, this Court cannot interfere. The rule, therefore, will be discharged. Rule discharged.

T. W. S.

COURT OF QUEEN'S BENCH.

Easter Term.-Saturday, May 1, 1847.

THE QUEEN v. NATHANIEL SHIPPERBOTTOM.

Order in bastardy, form of Stat. 8 Vict. c. 10.

An order in bastardy, which follows the form (No. 8) in the schedule to stat. 8 Vict. c. 10, except that the blank left for the name of the putative father in that part of it which states the evidence to have been taken in his presence and hearing, is filled up with the words " the attorney attending on behalf of the said" putative father, is an order" to the like tenour or effect" with the order set out in the schedule, and is therefore rendered valid by that Act.

THE following order had been removed into this court by writ of cer

THE

tiorari.

"Borough of Bolton, in the
County of Lancaster,
to wit.

At a petty session of her Majesty's justices of the peace for the borough of Bolton, in the county of Lancaster, holden in and for the said borough of B., in the county, &c., at the police-office in, &c., on the 31st day of January, A.D. 1846, before us, Thomas Ridgway Bridson and Edmund Áshworth, Esquires, two of her Majesty's justices of the peace for the said borough. "Whereas one Sarah McCarnon, single woman, residing at Great Bolton, within this borough, did, on the 21st day of January, A.D. 1846, having been delivered of a bastard child within twelve calendar months prior thereto, make application to Thomas Callon, Esq., one of her Majesty's justices of the peace acting for this borough of Bolton, for a summons to be served upon one Nathaniel Shipperbottom, of Tong with Haulgh, in the said borough, tin-plate worker, whom she alleged to be the father of the said child; and the said justice thereupon issued his summons to the said Nathaniel Shipperbottom to appear at a petty session to be holden on this day for this borough, in which the said justice usually acts, to answer her complaint touching the premises. And whereas the said Nathaniel Shipperbottom having been duly served with the said summons within forty days from this day, and now appearing in pursuance thereof; and the said Sarah McCarnon having now applied to us, the justices in petty session assembled, for an order upon the said Nathaniel Shipperbottom according to the form of the statute in such case made and provided; and it being now proved to us, in the presence and hearing of the attorney attending on behalf of the said Nathaniel 'Shipperbottom, that the said

6

child was, since the passing of an Act passed in the eighth year of the reign of her present Majesty, intituled An Act for the further Amendment of the Laws relating to the Poor in England,' that is to say, on the 21st day of December, in the year of our Lord 1845, born a bastard of the body of the said Sarah McCarnon. And we having, in the presence and hearing of the said attorney, attending on behalf of the said Nathaniel Shipperbottom, heard the evidence of such woman, and such other evidence as she hath produced, and no evidence having been tendered on behalf of the said Nathaniel Shipperbottom, and the evidence of the said Sarah McCarnon, the mother of the said child, having been corroborated in some material particular by other testimony, to our satisfaction, do hereby adjudge the said Nathaniel Shipperbottom to be the putative father of the said bastard child; and having regard to all the circumstances of this case, we do now hereby order that the said Nathaniel Shipperbottom do pay unto the said Sarah McCarnon, the mother of the said bastard child, so long as she shall live, and shall be of sound mind, and shall not be in any gaol or prison, or under sentence of transportation, or to the person who may be appointed to have the custody of such bastard child, under the provisions of the said statute, from the said 21st day of January instant, being the day upon which such application was made to the said justice, as aforesaid, the sum of 2s. 6d. per week, until the said child shall attain the age of thirteen years, or shall die, or the said Sarah McCarnon shall marry. And we do hereby further order the said Nathaniel Shipperbottom to pay to the said Sarah McCarnon the sum of 10s., being the costs incurred in obtaining this order, and the sum of 10s. for the midwife. Given under our hands and seals at the session aforesaid.

"T. R. BRIDSON,
"EDM. ASHWORTH."

A rule nisi to quash the above order for defects apparent on the face thereof having been obtained in a previous Term,

Pashley now shewed cause against that rule. The order is perfectly good : the objection taken to it is that the evidence upon which it was made does not appear to have been given upon oath; and that objection rests upon the authority of Reg. v. Wroth (2 D. & L. 729) ; S. C. nom. Reg. v. The Justices of Buckinghamshire (1 New Mag. Cas. 192); but in that case Rex v. Luffe (8 East, 193) was not cited, where the words were 66 upon the oath of M. T. as otherwise ;" and Lord Ellenborough, C. J. said: "It is true it is not said as otherwise upon oath ; but as no evidence can properly be given otherwise than upon oath, it is not going further in making an intendment to support this order than has been done in other cases, to say that such other evidence must also be taken to have been given upon oath ;" and in Reg. v. The Recorder of King's Lynn (1 New Mag. Cas. 584; 3 D. & L. 725), Coleridge, J. overruled the decision in Reg. v. Wroth, observing that it would not have been pronounced by Mr. Justice Wightman if Rex v. Luffe had been cited. In Reg. v. Wroth, several cases (a) under the Masters and Servants Act were cited, and treated by the learned judge as being applicable to the case of an order in bastardy; but that was a mistake, for there is this distinction between them, that the latter are to be construed as orders, the former as convictions. (Paley, 131; Rex v. Clegg, 1 Stra. 475; Rex v. Upton Gray, Cald. 308.) So penal proceedings under 5 & 6 Ed. 6, c. 25, against persons continuing to keep a public-house after an order of justices to suppress it (Rex v. Venables, 2 Ld. Raym. 1405); and those against tenants fraudulently removing goods to avoid distress, under 11 Geo. 2, c. 19 (Rex v. Bissex, Say. 304), have been treated as orders and not convictions. With regard to orders as well as convictions, the jurisdiction must be clearly shewn

(a) Reg. v. Lewis (1 D. & L. 822); Re Gray (2 D. & L. 539).