Tyrwhitt, in support of the order of Sessions, relied on the judgment just pronounced in The Queen v. Charlbury and Walcott. The Sessions had a right to decide on the law, and to add the special entryThe Queen v. Brighton (1), The King v. Cottingham (2). The Court called on Carrington and Bros, contrà.-The decision in The Queen v. Charlbury and Walcott is in the appellants' favour, inasmuch as the Sessions have quashed for the insufficiency of the examination. That is a defect in substance, and the decision of the Sessions is therefore conclusive as to the settlement at the time of the order of removal. It is utterly inconsistent that by such an entry the Sessions should reserve to the respondents power to remove again. LORD DENMAN, C.J.-The Sessions here have decided, that the objection taken did not go to the merits of the settlement. We decline to enter into the grounds of their decision. They appear to have considered that the omission of the date of the relief was not in this case material; and they say, by their entry, that they do not decide on the merits. PATTESON, J. Concurred. COLERIDGE, J.-We have never said that all decisions of the Sessions, on the sufficiency of the examinations, are decisions on the merits. 1843. Nov. 15. J Order of Sessions confirmed. THE QUEEN . THE INHABIT- Parish-Township-Settlement. Previous to the year 1834, the parish of Hales Owen consisted of the township of H, the township of O, and other townships. Only one set of overseers was appointed for the whole parish, who made a joint poor-rate for such parish, which rate formed a common fund for parochial purposes. In 1834, by the authority of a mandamus from the Court of King's Bench, separate overseers were (1) 2 Gale & Dav. 88; s. c. 11 Law J. Rep. (N.s.) M.C. 106. (2) 2 Ad. & El. 250; s. c. 4 Law J. Rep. (N.s.) M.C. 6. appointed for the township of H, which from that time maintained its own poor separately: -Held, that no settlement was gained in H, as a distinct township, prior to 1834; and that a pauper whose husband's father was hired, and served for a year in the township of H, in the year 1790, and who had acquired no subsequent settlement, was not removeable to such township. Upon appeal against an order of removal, whereby Elizabeth, the wife of John Parker, (who had deserted her,) and her three children, were removed from the parish of Rowley Regis, in the county of Stafford, to the township of Hunnington, in the county of Salop, the Sessions of the county of Stafford confirmed the order, subject to the opinion of this Court upon the following CASE. John Parker, the pauper's husband, is the son of William Parker, and has done no act to gain a settlement in his own right, but his father, William Parker, about the year 1790, was hired, and served for a year with one Daniel Hawkeswood, in the township of Hunnington, which at that time formed part of the parish of Hales Owen, in the county of Salop. At the time of such service, and up to the year 1832, the parish of Hales Owen consisted of the said township of Hunnington, the township Oldbury, and ten other townships, all in the county of Salop, and three other townships in the county of Worcester. The three Worcestershire townships had always had separate overseers, and supported their own poor, and managed their parochial affairs apart from each other and the rest of the parish, but that part of the parish of Hales Owen which is in the county of Salop, and which consists of the township of Hunnington, the township of Oldbury, and ten other townships, formed a distinct district for the maintenance of its poor, and all parochial matters, up to the year 1832, and was known as the parish of Hales Owen, in the county of Salop, and for which only one set of overseers of the poor were appointed, namely, four, who were annually appointed for the whole of the said last-mentioned parish, and who, together with the churchwardens, made a joint rate extending over the whole of the said last-mentioned parish, and which formed one common fund for the general maintenance and relief of the poor, and for payment of all parochial charges for the last-mentioned parish; but each of the said townships, including Hunnington, had then respective headboroughs, and repaired their highways separately. In the year 1832 (1), a mandamus was obtained, directing the Justices of the county of Salop to appoint separate overseers for the township of Oldbury; and by the same authority, in the year 1834, separate overseers were appointed for the remaining eleven townships, including the said township of Hunnington, from which time separate overseers have continued to be appointed for all the said twelve townships, and each of the said twelve townships, from the time of such separation, has continued to maintain their own poor respectively, as distinct and separate parishes. The question for the opinion of the Court was, whether upon the before-mentioned facts, now that the said parish of Hales Owen had ceased to maintain its own poor, and separate overseers were appointed for the said twelve townships, the said paupers were settled in the said township of Hunnington. If the Court were of opinion that the said paupers were settled in the said parish of Hunnington, the order of Sessions was to be confirmed; if not, the order of Sessions to be quashed. F.V.Lee, in support of the order of Sessions. -The question is, whether the settlement gained by the father in that part of Hales Owen which forms the township of Hunnington, can be now considered a settlement in Hunnington. There is no case to shew that a settlement should not be held to be gained in Hunnington. The case of The Queen v. Tipton (2) will be relied on on the other side, but that case is distinguishable, as it turned on the precise words of the statute 54 Geo. 3. c. 170. s. 3, which is declaratory as to the settlements of bastard children born in district workhouses. The King v. Oakmere (3), the separation of the township was made by act of parliament, but The King v. Oldbury (4) is in favour In 25 of holding a settlement to have been gained in Hunnington. [WILLIAMS, J. referred to The King v. Saighton-on-the-Hill (5).] In that case, there were, at the time of the removal, no inhabitants in Gloverstone to serve the office of overseers. King v. Crowland (6), it was held, that a In The pauper might be chargeable on a portion of a parish, though there were no overseers. Hunnington must be considered as if it always was a township, and if so, the overseers of Hales Owen would be sufficiently ship of Hunnington, to enable a party to overseers for that portion forming the towngain a settlement there-The King v. Merevall (7). Wherever a parish is made up of several vills, each of which ought to appoint its own overseers, a settlement may be considered as having been gained by relation, after such overseers are appointed. [COLERIDGE, J.-According to the argument that must be adopted on the other township prior to 1834.] side, no settlement could be gained in this A decision for the appellants must go to that extent. [LORD DENMAN, C.J.-You assume that all vills have from time immemorial been liable to the separate maintenance of their own poor.] Corbett, contrà.-This is not to be distinguished from The Queen v. Tipton. (He was then stopped.) LORD DENMAN, C.J.-There certainly is some practical inconvenience resulting from the state of the law, as regards the right of settlement under circumstances like the present, but the principle which was recognized in The Queen v. Tipton, is the same that must govern this case. The same principle also governed the decision in The King v. Saighton, where it was held, that a settlement once acquired in a township, was extinguished by a settlement acquired in another township, which had, at the time of the order, ceased to be capable of having overseers, though the necessary effect of the decision was to leave the pauper without any settlement at all. So here, though the party is not settled in the parish of Hales (5) 2 B. & Ald. 162. (6) 8 B. & C. 711; s. c. 7 Law J. Rep. M.C. 43. E Owen, yet she cannot be considered as settled in any of those parts or townships which were not independent of the parish of Hales Owen, for the purpose of settlement, at the time the hiring took place, in respect of which the settlement is sought to be established. In the case of The King v. Oldbury, I referred to a passage in Lord Tenterden's judgment in the case of The King v. Oakmere, as to the effect of the modern appointment of overseers to townships which previously had none. It seems to me, however, that those remarks are not altogether sound. Though a vill or township may have existed from time immemorial, it cannot be said, that the obligation on it to maintain its own poor separately has existed from time immemorial, as there may have been no means of appointing officers for that purpose. What fell from Lord Tenterden, in the case referred to, was wholly immaterial with reference to the decision of the particular case; and I think that the present case cannot be distinguished from that of The Queen v. Tipton, by which we must be governed; and the order of Sessions must, therefore, be quashed. WILLIAMS, J.-I am of the same opinion. In deciding this case, we must refer to that period of time at which the settlement was supposed to have been gained. That was before any settlement could be gained in the township of Hunnington. The case of The Queen v. Tipton is, therefore, directly in point. COLERIDGE, J.-If this question had been entirely new, I should have wished to have had it more fully argued on the present occasion, but it seems to me that we are bound by the recent case of The Queen v. Tipton. WIGHTMAN, J. concurred. Order of Sessions quashed. THE QUEEN v. THE INHABIT- Certiorari-Notice of Motion for-Requisites of. The Court of Quarter Sessions having confirmed an order of removal, subject to a case, a notice of the intention of the appellant parish to apply for a certiorari, was addressed to "J. S, Esq., and T. H. M, Esq., 66 two of Her Majesty's Justices and keepers of the peace" for the West Riding of the county of York; and the affidavit of service of such notice stated that the deponent served J. S, Esq. and T. H. M, Esq., two of Her Majesty's Justices of the Peace" for the West Riding:-Held, that the affidavit was insufficient, by reason of its not stating that the Justices so served were two of the Justices before whom the order of Sessions was made, and the rule for quashing the certiorari was made absolute, the special case being already set down for argument in the Crown paper. Upon an appeal against an order for the removal of Matthew Wadsworth, his wife and five children, from the township of Upper Thong to the township of Cartworth, both in the West Riding of Yorkshire, which was heard at the adjourned sessions for the West Riding, held at Wakefield, on the 5th of January 1842, the order was confirmed, subject to a case for the opinion of the Court of Queen's Bench. On the 29th of April 1842, according to the affidavit of the appellants' attorney, he served T. H. M, Esq., and on the 30th of April, he served J. S, Esq., who, his affidavit stated, were 66 two of Her Majesty's Justices of the Peace for the said riding," with copies of the notice thereunto annexed, by delivering a copy of such notice to each of them personally. This notice was addressed to “J. S, Esq. and T. H. M, Esq., two of Her Majesty's Justices and keepers of the peace of the West Riding of the county of York," and was as follows: "Take notice, that Her Majesty's Court of Queen's Bench will be moved on the 7th day of May next, or as soon after as counsel can be heard on behalf of the township of Cartworth, in the West Riding of the county of York, that a writ of certiorari may be issued, to remove into the said court a certain order, made at the General Quarter Sessions of the Peace held by adjournment at Wakefield, in and for the said riding, on the 5th day of January last, confirming a certain other order, made by two Justices of the Peace in and for the said riding, touching the removal of Matthew Wadsworth, Sarah his wife, and their five children, from the township of Upper Thong, in the said riding, to the said township of Cartworth, and in confirming which order a special case was reserved by the said Court of Quarter Sessions for the opinion of Her Majesty's Court of Queen's Bench. Dated the 29th of April 1842. "S. T. and B, Huddersfield, attornies for the inhabitants of the said township of Cartworth." The writ of certiorari was issued on the 9th of May 1842, and was in the usual form to bring up "all and singular the order and orders made by the Justices between the inhabitants of the parishes touching the settlement," &c. The writ was forwarded to the clerk of the peace, but no return was made till the 9th of June 1843, when the special case was sent up, signed by the chairman. On the 15th of June, the rule for quashing the order was obtained, and the special case was set down in the Crown paper for the present term. On the 4th of November,— Pashley obtained a rule, calling on the defendants to shew cause "why the writ of certiorari issued in this prosecution should not be quashed, and why the defendants should not pay to the churchwardens and overseers of the poor of the township of Upper Thong the costs occasioned to them in consequence of the issuing of the said writ, and the costs of that application." Both rules coming on together The In tinctly appeared that one of the Justices Pashley, contrà.-The notice given is not sufficient within the terms of th act 13 Geo. 2. c. 18. s. 5. The affidavit only states service on J. S. and T. H. M, two of the Magistrates of the West Riding. It should have gone further, and stated that they were two of the Magistrates by or before whom the order was made, otherwise it amounts to nothing. It cannot even be collected that at the time the order was made, the parties on whom the notice was served were Magistrates. The judgment of Lord Denman, C.J. in The Queen v. How is decisive. The Justices should have an opportunity of shewing cause-The King v. Nichols (5), and the right parties should therefore be served. In The Queen v. the Justices of Wilts (6), the affidavit was of service on three Magistrates, who Pickering shewed cause against Pashley's rule. The certiorari issued within the six months, and the case is now in the Crown allowed, to remove any conviction, judgment, order, paper. It is too late to move to quash the or other proceedings, had or made before any Juscertiorari a year and half after it has been tice or Justices of the Peace for any county, city, granted-The King v. Rattislaw (1), The &c., or the respective General or Quarter Sessions King v. Wakefield (2). Here the objec- thereof, " unless it be duly proved, upon oath, that tion might have been taken sooner. delay in the return to the certiorari has arisen from the difficulty in settling the special case; and one of the grounds on which the certiorari is now sought to be quashed is, that the affidavit of service of the notice does not state that the Justices on whom it was served were present at the time the order was made (3). The King v. Rattislaw will be relied on. In that case it dis (1) 5 Dowl. P.C. 539. (2) 1 Burr. 488. (3) The statute 13 Geo. 2. c. 18. s. 5. enacts, that no writ of certiorari shall be granted, issued forth, or the said party or parties suing forth the same hath or have given six days' notice thereof in writing to the Justice or Justices, or two of them, (if so many there be), by and before whom such conviction, judgment, order, or other proceeding, shall be so had and made, to the end that such Justice or Justices, or the parties therein concerned, may show cause, if he or they shall so think fit, against the issuing or granting such certiorari." (4) 11 Ad. & El. 139; s. c. as The Queen v. the Justices of Shrewsbury and Salop, 10 Law J. Rep. (N.S.) M.C. 8. (5) 3 Term Rep. 281, n. (6) 9 Dowl. P.C.524; s.c. 10 Law J. Rep. (N.s.) M.C. 25. were sworn to have been present "at the trial and hearing of the said appeal." The statute 13 Geo. 2. c. 18. is not the less imperative, because the Sessions have consented to grant a case—The King v. the Justices of Sussex (7). [It was also objected that the notice was not given by the right parties, but the argument on this point is omitted.] LORD DENMAN, C.J.-The only ground on which this notice could be held sufficient would be, that it is to be presumed that all the Magistrates of the West Riding were present when the order was made. I think we can make no such presumption. The caption, indeed, states that the Sessions were held before A. B. and C. D. (naming them), and others their fellows, Justices," &c. But we cannot presume that those others were present; indeed, we know that such is not generally the case. We may observe, that it is possible for a certiorari to go to the sessions without any case being granted; and we can draw no line to distinguish as to the practice. It may be that an order is sought to be set aside for defect on the face of it, and indeed it may be just possible that the Justices might have some cause to shew against the certiorari, such as that the case was granted under a mistake, or on some condition that has not been complied with. The rule must be absolute. WILLIAMS, J.-The terms of the act of parliament are, that " no certiorari shall issue to remove any order of Justices, without notice to two of those by or before whom it was made, to the end that such Justices may shew cause against the issuing of the writ.' Has that been done in this case? I agree with my Lord that it cannot be presumed that all the Magistrates in the division were actually present; if so, the certiorari has issued on an insufficient notice, and must be quashed. COLERIDGE, J.-I am of the same opinion, though I yield to the objection with great reluctance, as we cannot but see that this mode of arriving at the result by a separate motion is indirect and expensive. The act of parliament did not contemplate cases in which a certiorari is moved for after a case granted at sessions, and it is in such (7) 1 Mau. & Selw. 631. cases purely a matter of form. Where there is a conviction or other matter, with respect to which the acts of Magistrates are individually in peril, it is important that they should have notice, but when the Magistrates at sessions give a judgment subject to a case, the rest is mere matter of form. I fully accede, however, to the principle already laid down, and in holding the notice to be insufficient. WIGHTMAN, J.-I entirely agree with the rest of the Court; and I would further observe, that even if the presumption which is contended for could, with propriety, be made, these parties could hardly be brought within the benefit of it, as it is not stated that the Magistrates on whom the notice was served were Magistrates at all at the time when the order was made. Rule absolute for quashing the certiorari. |