The overseers of the poor of the township of South Kilvington called upon the pauper and demanded 7s. 114d., the first of these rates: the pauper paid 2s., being 9d. in the pound, on 27. 15s., the amount for which he was assessed for the cottage, before he took the land, and referred the overseer to the landlord, Mr. West, for the rest, who thereupon, in pursuance of his agreement, paid the remaining 5s. 11 d., being also 9d. in the pound, on 77. 17s. 9d., the residue of 107. 12s. 9d., at which the house and land were assessed, and of the remaining rates of 8s. 03d. and 5s. 4d. the tenant respectively paid 2s. and 1s. 4 d., being in one instance a rate of 94d., and in the other instance a rate of 6d. in the pound, on 21. 15s., the amount above described as that at which the cottager was assessed before he took the land, and the landlord, in pursuance of his agreement, paid the remainder, the overseers always after the above-mentioned reference by the pauper to Mr. West, applying to him for the rates due in respect of that land. The pauper resided in the township during the whole period of his occupation of the land. By their statement of the grounds of appeal, the appellants relied not only on a renting of a tenement by the pauper within the respondent township, sufficient to give him a settlement there; but also that he had gained a settlement therein, by having in the years 1841 and 1842 been charged with and having paid his share towards the public taxes or levies of the said township of South Kilvington; and the only question disputed between the parties was, whether upon the above facts it could be said that the pauper had paid the poor-rate for a year, during his occupation of the land, so as to satisfy the 66th section of 4 & 5 Will. 4. c. 76, or whether he had been charged with and paid his share towards the poor-rate, under the 3 & 4 Will. & M. c. 11. s. 6. The Court of Quarter Sessions held, that the payment of the poor-rate by the landlord, in consequence of the agreement between him and the pauper, was a payment of the latter, sufficient to satisfy either of the statutes, and quashed the order by removal.

The question for the opinion of this Court was, whether such payment was sufficient under either of those statutes: if the Court should be of opinion that it was, then the order of Ses

sions to be confirmed; but if it should be of opinion that it was not, then the order of Sessions to be quashed (1).

Bliss and Wharton, in support of the order of Sessions. The payment was substantially a payment by the tenantThe King v. Bridgewater (2). The King v. Weobley (3) is clearly distinguishable, as the rate which was paid by the collector, was not deducted from the salary of the pauper. The payment may be considered as made by the hand of the landlord-- The King v. Hope Mansell (4), The King v. Okehampton (5), The Kiug v. Bramley (6), and The King v. Axmouth (7). Such a payment would be considered as having been made with sufficient authority, even under the Municipal Corporation Act— The King v. the Mayor of Bridgnorth (8). The pauper, being the actual occupier, also complied with the provision of 4 & 5 Will. 4. c. 76. s. 66, by paying the rates-The King v. St. Nicholas, Rochester (9), and The King v. St. Nicholas, Colchester (10).

Watson and Archbold, contrà.-This was neither a good payment of rates within 3 Will. & M. c. 11. s. 6, nor under 4 & 5 Will. 4. c. 76. c. 76. An act of parliament must be con

(1) 3 Will. & M. c. 11. s.6-"If any person who shall come to inhabit in any town or parish shall for himself and on his own account, execute any public annual office or charge in the said town or parish during one whole year, or shall be charged with and pay his share towards the public taxes and levies of the said town or parish, then he shall be adjudged and deemed to have a legal settlement in the same," without the notice required by the act.

By 35 Geo. 3. c. 101. s. 4, no person who shall come into any parish, &c., shall gain a settlement in such parish, &c., by being charged with and paying their share towards the public taxes and levies of such parish, &c., for and on account, or in respect of any tenement not being of the yearly value of 101.; and see 6 Geo. 4. c. 57. s. 2.

4 & 5 Will. 4. c. 76. s. 66-"No settlement shall be acquired or completed by occupying a tenement, unless the person occupying the same shall have been assessed to the poor-rate, and shall have paid the same in respect of such tenement for one year." (2) 3 Term Rep. 550. (3) 2 East, 68.

(4) Cald. S.C. 252. (5) Burr. S.C. 5. (6) lbid. 75.

(7) 8 East, 383.

(8) 10 Ad. & El. 66; s. c. 8 Law J. Rep. (N.s.)

M.C. 86.

(9) 5 B. & Ad. 226; s. c. 3 Law J. Rep. (N.s.) M.C. 45.

(10) 2 Ad. & El. 599; s. c. 4 Law J. Rep. (N.s.) M.C. 46.

strued according to its express words: by both of the acts it is necessary that the party should be charged with "and pay" the rates in order to gain a settlement. Here, the landlord did not pay the rates as the agent of the pauper, from time to time, but paid the rates as they were made, in respect of the land, by virtue of a contract antecedent to any assessment. The case of The King v. Weobley cannot be distinguished from the present.

[LORD DENMAN, C.J.-The arrangement as to the payment is only a question between the landlord and the pauper: if the landlord did not pay, the pauper, the tenant, would have been liable.]

Similar questions have arisen with respect to payment of rent, under 1 Will. 4. c. 18. s. 1, in which it has been held, that payment out of a fund over which the party had no controul at the time, was no payment by him- The King v. Pakefield (11), The Queen v. Melsonby (12). In The King v. Bridgewater, the payment was made by money borrowed for the purpose, which is the same thing as payment by a party's own money.

LORD DENMAN, C.J.-I think it is clear that no settlement was gained in this case. The case of The King v. Weobley is decisive.

Order of Removal-Quashing for Defect in Examinations-Special Entry of "Not on the Merits."

After an appeal against an order of removal had been entered and respited, the respondents served the appellants with a notice that they, the respondents, had abandoned the order, on the ground that the examinations were defective, and that they intended to apply at the ensuing sessions to quash the order upon a special entry, "Quashed not upon the merits ;" and also, that they were ready to pay the appellants

(11) 4 Ad. & El. 612; s. c. 5 Law J. Rep. (N.s.) M.C. 63.

(12) 12 Ibid. 687; s. c. 10 Law J. Rep. (N.s.) M.C. 2.

all reasonable costs already incurred by them, and all costs of maintenance; and that all future costs, incurred in proceeding to try the appeal, would be at their own peril.

At the ensuing sessions the appellants applied to have the appeal heard, and the order quashed generally; but the Sessions quashed the order, with a special entry in the above form, allowing the appellants their costs up to the time of the notice of abandonment, and the costs of coming to the sessions: Held, that the Sessions had done right, and that there was no ground for a mandamus to them to hear the appeal.

On the 22nd of April 1843, an order was made under the hands and seals of two of the Justices of the West Riding, for the removal of Ann Auckland, widow of James Auckland, and her two children, from Thorne to Pontefract. The examinations, on which the order was made, were sent, together with the order, to the churchwardens and overseers of Pontefract, and the paupers were afterwards actually removed. At the Gen

eral Quarter Sessions at Rotherham, held on the 3rd of July 1843, the churchwardens and overseers of Pontefract entered and respited an appeal against the said order.

On the 3rd of August the overseers of Thorne served the overseers of Pontefract with the following notice :

"To the churchwardens and overseers of the poor of the parish, township, or place of Pontefract, in the West Riding of Yorkshire. "In the matter of an appeal, wherein the churchwardens and overseers of the poor of the parish, township, or place of Pontefract, in the said riding, are appellants, and the churchwardens and overseers of the poor of the parish of Thorne, in the said riding, are respondents. Whereas, under and by virtue of an order, &c., Ann Auckland, widow, &c., were removed from the parish of Thorne aforesaid, to the parish, township, or place of Pontefract aforesaid, as the place of their last legal settlement. And whereas, since the said removal and the entry of the said appeal against the said order of removal, we have discovered and are satisfied that the examinations, on which the said order of removal was granted, are defective and insufficient to support the said order of removal on the trial of the said appeal. Now, we, the undersigned, being the churchwar

dens and overseers of the poor of the said parish of Thorne, do hereby give you, and each and every of you, notice that we have abandoned, and do hereby abandon, the said order of removal; and that at the next General Quarter Sessions of the Peace to be hokden, by adjournment, at Doncaster, in and for the said West Riding, we shall apply to the said Court of Quarter Sessions to quash the said order of removal, upon a special entry, 'Quashed not upon the merits.' And we further give you notice, that we are now ready and willing to pay to you, the said churchwardens and overseers of the poor of the said parish, township, or place of Pontefract, all reasonable costs already incurred by you in the matter of the said appeal, together with all costs incurred by you for the maintenance and support of the said paupers, since the execution of the said order of removal; and lastly, we further give you notice, that all future costs to be incurred by you, in prosecuting and trying the said appeal, will be so incurred at your own peril.

66

Dated, &c.
"J. W.

"W. C.J

Churchwardens.

"T. O.Overseers of the Poor." "J. C. f

On the 29th of September, the churchwardens, &c. of Pontefract caused the churchwardens, &c. of Thorne to be served with a notice of trial of the appeal, at the ensuing Quarter Sessions; and at the same time duly served a statement of the grounds of appeal. At the ensuing Sessions the counsel for the appellants claimed a right to have the appeal heard, or if the Court should quash the order without hearing the appeal, and made a special entry, the purport of such special entry should be according to the truth of the case, that the examination was defective, in not sufficiently disclosing a settlement in Pontefract; and they further contended, that a decision, quashing the order under such circumstances, would be a decision on the very merits of the case, and that it would be highly improper, when the facts, as above stated, were all conceded and agreed on, to make an entry, that the order was quashed, not on the merits. After hearing both sides, the chairman stated it to be the opinion of the majority of the Court, that a decision quashing the order, under the

facts stated, was a decision on the merits, and that no such special entry ought to be made; but that finding, from the clerk of the peace, that the practice of making such special entry, and so discharging orders on payment of costs by the respondents to the appellants, with the intention of enabling the respondents again to remove, if they could obtain a better examination, had latterly prevailed in cases in which a similar notice of abandonment had been served, therefore, though the Court thought the practice wrong, they decided to abide by the same, until the opinion of the Court of Queen's Bench could be obtained for their guidance on the subject. The order of the Sessions, therefore, was, that the order of removal should be discharged, "not on the merits," and that the costs of the appellants, to the time of the service of the notice of abandonment, and the costs of coming to the Sessions, to be taxed, &c., should be paid to them by the respondents; and the said order was so entered and recorded.

On an affidavit stating those facts,

Pashley moved for a rule nisi for a mandamus to the Justices of the West Riding, commanding them to enter continuances and hear the appeal: he cited The Queen v. the Justices of Middlesex (1).

[COLERIDGE, J.-According to your statement, the Sessions may have come to a wrong decision, but they reserve no case for our opinion. Why should the Sessions hear your witnesses after the order was quashed?]

The appellants ought not to be prejudiced by the respondents not calling evidenceThe King v. the Justices of the West Riding (2). In The Queen v. Townstall (3) and The Queen v. Stayley (4), the Court decided that appellants had a right to go to the Sessions for their costs (5).

LORD DENMAN, C.J.-It appears to me, that the Sessions in this case were perfectly

(1) 11 Ad. & El. 809; s. c. 9 Law J. Rep. (N.s.) M.C. 59.

(2) 5 B. & Ad. 667; s. c. 3 Law J. Rep. (N.s.) M.C. 21.

(3) 12 Law J. Rep. (N.s.) M.C. 72. (4) Ibid.

(5) See The Queen v. the Justices of Anglesea, 12 Law J. Rep. (N.s.) M.C. 131; The Queen v. the Justices of the West Riding of Yorkshire-Sheffield v. Crich, 12 Law J. Rep. (N.s.) M.C. 148; and The Queen v. Charlbury and Walcott, post.

right. The question was not, whether the order of Magistrates was good or not; but when the respondents said to the appellants, "now that we are aware that our examinations are defective, we are ready to pay you your reasonable costs," it was the appellants' duty to find out what a fair amount of costs would be; and if the amount the respondents were ready to pay was a reasonable amount, they should have consented to the abandonment. The Sessions may well have considered that it was against good faith to attempt to try the appeal after a fair proposition of this kind. Here the Sessions have decided in your favour, but add, that it is not on the merits. They may properly make such an entry. No doubt, the appellant parish have a right to enforce the quashing of an improper order, but if they proceed after such a notice as this, they must take the chance of the result.

WILLIAMS, J.-The appellants have insisted on being heard, and have what amounts to a decision in their favour, on the question in dispute.

COLERIDGE, J. concurred.

Rule refused.

[See the judgment of Patteson, J. in The Queen v. the Justices of the West Riding(6); see also The Queen v. the Justices of Lancashire (7), and The Queen v. the Inhabitants of Evenwood and Barony (8).

1813. THE QUEEN v. THE RECORDER Nov. 23. f OF EXETER.

Bastard-Order of Filiation. Costs of resisting application for-By whom payable -Hearing, What amounts to.

The churchwardens and overseers of the parish of O, in the city of Exeter, applied at the Sessions for an order of filiation upon N. T, as the putative father of a bastard child chargeable to the parish of O. The application was resisted in limine, on the ground, that by a local act of parliament, certain persons were incorporated for the management of the poor of the city of E, and

(6) 2 Q.B. Rep. 705; s. c. 11 Law J. Rep. (N.s.) M.C. 57.

(7) 12 Law J. Rep. (N.s.) M.C. 76. (8) Ibid. 101.

that the application should have been made by them, and not by the churchwardens and Overseers. The Court of Quarter Sessions, being of that opinion, made no order of filiation, but refused to order that N. T's costs should be paid by the churchwardens and overseers of O:-Held, that these churchwardens and overseers were the parties liable to pay the costs, and that the Court would grant a mandamus to compel the Court of Quarter Sessions to make the order for

costs.

Held, also, that the application and its dismissal, as above stated, was a sufficient hearing of the application within the 5 & 6 Will. 4. c. 76. s. 73.

Rule, calling on the recorder of the city and county of the city of Exeter, to shew cause why a writ of mandamus should not issue, directed to him, commanding him to cause continuances to the next General Quarter Sessions of the Peace, to be held in and for the said city and county, to be entered, upon the application of the churchwardens and overseers of the poor of the parish of St. Olave, in the said city and county, at the last General Quarter Sessions of the Peace for the same, for an order upon Nicholas Tuckett, for the support and maintenance of a bastard child, born of the body of A. D, single woman, and at such next General Quarter Sessions to make an order for the costs and charges of the said Nicholas Tuckett, incurred in resisting the said application to be paid by the churchwardens and overseers of the poor of the said parish of St. Olave.

From the affidavits on which this rule Tuckett, on the 4th of October 1843, was was granted, it appeared that Nicholas served with a notice signed by the churchwardens and overseers of the parish of St. Olave, in the city of Exeter, of their intention to apply to the Justices in petty session, at the Guildhall of that city, on the 11th of October, for an order of filiation upon him, under 2 & 3 Vict. c. 85, as the putative father of a bastard child, born on the body of the said A. D, and chargeable to the said parish of St. Olave. Tuckett attended at the petty sessions according to the notice, and the churchwardens and overseers of St. Olave likewise appeared by their attorney; and Tuckett, under the provi

sions of the 3rd section of the above act, entered into a recognizance with two sureties, to appear at the next General Quarter Sessions of the Peace, to be holden in and for the city and county of the city of Exeter, to answer the charge and abide the judgment of the Court, and to pay the costs incurred by the churchwardens and overseers in bringing the said charge before the Court, in case, &c.

The parties appeared at the Sessions for the city and county of Exeter, and on the case being opened on the part of the churchwardens and overseers, a preliminary objection was taken on behalf of Tuckett, that the churchwardens and overseers were not the proper parties to make the application, as the parish of St. Olave was a parish having guardians within the meaning of 4 & 5 Will. 4. c. 76. s. 109, as to which it appeared, that by a local act, 8 & 9 Will. 3, certain persons were incorporated for the management of the poor of the city of Exeter, under the name of the " Governor, Deputy Governor, Assistants, and Guardians of the Poor of the City and County of Exeter." And The Queen v. James (1) and The Queen v. the Justices of Wiltshire (2), were referred to. The recorder was of opinion, that the notice, not having been given by the corporation of the Governor, &c. of the Poor, was not sufficient, and refused the application.

Costs were then applied for on behalf of Tuckett, under 4 & 5 Will. 4. c. 76. s. 73, which section, it was insisted, was imperative, but the recorder refused to make any order for costs, and an order of Session was formally drawn up, which, after reciting, that it had been certified to the Court, that at a petty session, &c., (setting out the application, the appearance of the defendant at such petty session, and the recognizances, &c.) and that the said Court of Quarter sessionss had proceeded to hear the said application of the said churchwardens and overseers, the said order concluded as follows:-"Now this Court, upon the hearing of such application, having heard all the parties concerned and their counsel, and being of opinion that the said churchwardens and overseers

(1) 10 Ad. & El. 423; s. c. 8 Law J. Rep. (N.s.) M.C. 61.

(2) 12 Ibid. 793; s. c. 10 Law J. Rep. (N.s.) M.C. 17.

of the parish of St. Olave aforesaid are not the proper parties to make the application, doth not think fit to make any order thereon; and this Court doth refuse to order and direct that the costs and charges incurred by the said N. Tuckett, in resisting the said application, shall be paid by the churchwardens and overseers."

Merivale, on moving for the rule, cited the following cases-The Queen v. James, The Queen v. the Justices of Wiltshire, The Queen v. Stamper (3), The King v. Cawston (4), St. Mary, Nottingham v. Kirklington (5).

Greenwood shewed cause.-If the churchwardens and overseers were not the proper parties to make the application, which, for the purpose of this rule, it must be taken they were not, neither are they the proper parties to pay costs, and the recorder was, therefore, right in refusing to make the order. The words of 5 & 6 Will. 4. c. 76. s. 73. are, if upon the hearing of such application, the Court shall not think fit to make any order thereon, it shall order and direct that costs of the party intended to be charged, shall be paid by "such overseers or guardians." Those words can only refer to those overseers or guardians, who, by the act, are directed to make the application under the act in question, modified as it has been by the 2 & 3 Vict. c. 85. It is clear, that the words would not apply, if the application. had been made by a party who was neither churchwarden, guardian, nor overseer, for instance, the woman herself, or the master of the workhouse; and incapacity admits of no degrees.

[WILLIAMS, J.-According to your argument, the more unfounded the application, the less the liability to costs.]

[COLERIDGE, J.-Will not the word "such" be satisfied by construing it, such as made the application?]

The parties who are to apply, are defined by the statute. Then secondly, there has been no hearing; hearing means going into the merits. The Queen v. Stamper is distinguishable; there, the right party was before the Court; here, the recorder refused to hear the application, as it was made by a

(3) 1 Q.B. Rep. 119; s. c. 10 Law J. Rep. (N.s.) M.C. 73.

(4) 4 Dowl. & Ryl. 445. (5) 2 Bott, 776.