66

grounded on the examination of the pauper John Cooper, who stated that he had occupied a farm at Tollerton for three years, paying 651. a year, and proceeded : I was rated to the relief of the poor all the time, and I paid all my rates." Against this order the township of Tollerton appealed, and one of their grounds of appeal was, that "the examinations contain no legal evidence whatever, that the said John Cooper, while so occupying a farm in our township of Tollerton, as in the examination of the said John Cooper is mentioned, was ever at any time assessed to the poor-rate in respect of such farm," or of any tenement whatsoever. At the trial, this objection was insisted on by the appellants, there being nothing in the examination to shew that the proper evidence of rating had been produced before the removing Justices. The Sessions, however, disallowed the objection, and refused to grant a case on the point. The trial proceeded, and the order was confirmed, subject however to a case on another point, arising on the evidence at the trial itself.

Pashley, in this term, moved for a writ of certiorari to the Court of Quarter Sessions, to return the order of Sessions, together with the order of removal, the examination, and the notice and grounds of appeal to this court. As the cases cited are commented on in the judgment, the argument is not here reported. Cur. adv. vult.

LORD DENMAN, C.J. now delivered judgment. One of the questions which, in the case just disposed of (1), we observed to be involved in the discussion, has now come before us: whether the writ of certiorari ought to require anything more to be returned. than the record of the Court of Quarter Sessions; thereby meaning the original order of removal, and the proceedings of the Sessions thereon upon the hearing. In the present instance, the application is, to require the return of that record, and also of the examination whereon the original order of removal was made. In the first place, we find, upon reference to the officer that there is no memorial, nor any note to be found of any certiorari having issued, except where a

(1) The Queen v. the Inhabitants of Rotherham, post, p. 17.

case has been granted by the Sessions, requiring the return of any such additional matter. The case just disposed of is of course an exception, and the writ is considered as having issued improvidently, so far as respects the direction to return such additional matter as is therein specified. The cases cited in support of the present application are entirely foreign to the purpose. In all of them, without exception, a case appears to have been granted by the Sessions, and so to have been brought before the Court. In the case of The King v. the Inhabitants of Tedford (2), it appears, that a case was stated by the Court of Quarter Sessions. In The King v. the Inhabitants of Margam (3), a case also appears to have been stated, and this court, although not precisely in the usual form, in substance ordered that case to be reheard. In The King v. the Inhabitants of Whittlebury (4), a case had been granted by the Sessions, and the remarks of Lord Kenyon, which were much pressed upon us, regarded the facts stated in that case, and are utterly without application to the present. The King v. the Inhabitants of Woolpit (5), the last authority cited, was also the common case of an order of Sessions and a case reserved. Nothing therefore has been adduced to shew, that we ought now to do what is required; but, on the contrary, we find that an understanding seems to have prevailed in direct opposition to it. In the case of The King v. the Inhabitants of Oulton (6), we find the following remark, in the judgment of Mr. Justice Probyn: "This Court can take no notice of anything but the order. I remember," he says, a case where the original examinations were returned up with the order; but the Court said, they could take notice of nothing but what was contained in the body of the order." On the whole, we consider this a mere speculative novelty, without the warrant of any principle, precedent, or authority; and that, therefore, there must be no rule.

1842. Dec. 3.

THE QUEEN v. THE INHABITANTS
OF ROTHERHAM.

Order of Removal-Examination—Justices-Jurisdiction.

It is no objection to an order of removal, that it contains an adjudication, that the pauper is settled in such a parish, without any express statement that the Justices have had proof of the settlement in that parish.

It is also no objection, that it directs the officers of the removing parish to convey the pauper to his last place of legal settlement, without any mention of the provision in 4 & 5 Will. 4. c. 76. s. 79, that paupers shall not be removed without twenty-one days' notice in writing to the parish to which they are sent, &c.

"The churchwardens and overseers of the township of S," is a sufficient description in the heading of an order of removal, without adding that it is a place maintaining its own poor.

Where an examination, returned to a certiorari, was headed, "The examination of M. V, of the township of S," and appeared on the face of it to be taken at S, and stated that the examinant M. V. and three children by her deceased husband, aged respectively seven years, three years, and one year, are chargeable to S":-Held, that there appeared sufficient evidence before the Justices that M. V. and her children were inhabiting in S. to give them jurisdiction to remove.

66

A certiorari had been moved for and obtained on the part of the inhabitants of the township of Rotherham, to remove into this court the following order of removal, with the examination on which the order was made, and the notice and grounds of appeal, and order of Sessions confirming the order of removal, with all things touching the same.

"Order of removal.-West Riding of Yorkshire. To the churchwardens and overseers of the poor of the township of Sheffield, in the said riding, and to the churchwardens and overseers of the poor of the township or place of Rotherham, in the said riding, and to each and any of them.

"Whereas complaint hath this day been made unto us, two of Her Majesty's Justices of the Peace in and for the said West Riding, one being of the quorum, by the churchNEW SERIES, XII.-MAG. CAS.

wardens and overseers of the poor of Sheffield aforesaid, that Mary Varley and her three children, viz. Thomas, aged seven years, Jemima, aged three years, and James, one year, have come to inhabit in the said township of Sheffield, not having gained a legal settlement there, nor produced any certificate owning them to be settled elsewhere, and that the said Mary Varley and her three children are now actually become chargeable to the township of Sheffield aforesaid; we do therefore, upon due examination of the premises, taken before us upon oath, adjudge the same to be true, and we do likewise adjudge the last place of lawful settlement of the said Mary Varley and her said three children to be in the said parish, township, or place of Rotherham.

"These are, therefore, in Her Majesty's name, to require you, the said churchwardens and overseers of the township of Sheffield, or some or one of you, to convey the said Mary Varley and her said three children, from and out of the township of Sheffield aforesaid, to the parish, township, or place of Rotherham aforesaid, and them to deliver to the churchwardens and overseers of the poor there, or to some or one of them, together with this our order, or a true copy thereof; who are hereby required to take care and provide for them as the law directs (1).

"Given under our hands and seals at Sheffield, in the said riding, the 3rd of September 1841.

"Wm. John Bagshaw, (L.S.)
"W. Alderson, (L.S.)"

The following were the material facts of the examination of Mary Varley, on which the order was founded. It was headed, "The examination of Mary Varley, of the township of Sheffield, in the said riding, widow." It appeared to be taken "at Sheffield, on," &c., and proceeded to disclose a settlement derived through her deceased husband in the township of Rotherham, and concluded, inant and three children, by the said James Varley, viz. Thomas, aged seven years, Jemima, aged three years, and James, aged one year, are poor and chargeable to Sheffield." The examination was taken by the

66

exam

(1) This is a common form, and nearly similar to that given in Chitty's edition of Burn's Justice, vol. 4, p. 1099. It is given here on account of the observations of the Court in its judgment.

с

same Justices who made the order, and both were dated of the same day.

One ground of appeal was, that it did not appear by this examination, in what place the said Mary Varley and her three children were inhabiting at the time of the making this order of removal. Another, that the examination contained no evidence of any complaint having been made to the Justices by the churchwardens and overseers of Sheffield, of the said M. Varley and her children having come to inhabit in that township.

The Court of Quarter Sessions for the West Riding heard the appeal, and confirmed the original order of removal, refusing the appellants a case on these two objections.

Pashley moved; in the Bail Court, before Patteson, J., for a rule nisi for a certiorari to remove the order of Sessions and other documents, taking the following objections to the order of removal :-First, that it shews an examination by the Justices, only as to the chargeability and inhabitancy of the paupers, not as to their settlement, and an adjudication of the settlement preceded by no examination as to it; secondly, that it does not shew any complaint by overseers, &c. of a parish, or of a township maintaining its own poor; thirdly, that the order absolutely and unconditionally requires the officers of Sheffield to convey the paupers to Rotherham, and the officers of Rotherham to receive and provide for them, and therefore contravenes the 4 & 5 Will. 4. c. 76. s. 79, which provides, that no poor person shall be removable until twenty-one days after a notice in writing to the receiving parish, &c. He also objected, that it appeared, from the examination, that the Magistrates acted without jurisdiction in removing the pauper, inasmuch as, first, it contains no evidence that the paupers were residing at Sheffield when it was taken; secondly, that it contains no evidence that any complaint was made by the churchwardens and overseers of Sheffield to the said Justices, as alleged in their order.

Patteson, J. granted a rule nisi (2), against which cause was shewn in Easter term this year, by Pickering in the full Court.

Pashley objected, that no office copy of the affidavit, on which the rule nisi was

(2) See the preceding case.

granted, had been taken; and that the rule of practice was inflexible.

LORD DENMAN, C.J. (after consulting the officer). The practice is invariable as stated; and we cannot hear any cause shewn. Rule absolute.

The documents having been returned to the certiorari,

Pashley, in Trinity term, obtained a rule to shew cause why the order of Sessions should not be quashed; against which—

Pickering now shewed cause.-As to the second objection, the apparent defect is cured by 13 & 14 Car. 2. c. 19. s. 21, which enacts, that the poor "within every township or village," in the counties therein enumerated, of which Yorkshire is one, shall be maintained in the township or village where they are settled. It must be presum

ed, therefore, that a township in Yorkshire maintains its own poor; indeed, this act is held to extend to all England. [On the other objections to the order, apparent on the face of it, he was stopped by the Court.] As to the objections to the examination, they cannot be taken now. If the Justices have acted wrongly in removing, on an examination which does not plainly set forth the necessary matter, that is not acting without jurisdiction, but erring in the exercise of it; and the Court of Quarter Sessions is the proper tribunal to entertain an appeal against such proceeding. No case having been granted, this is in effect an attempt to get a new trial.

In The Queen v. the Inhabitants of Abergele (3), and The Queen v. the Justices of Cheshire (4), the Court held, that a certiorari could only go to bring up the order of removal, or order of Sessions itself; and that advantage could not be taken of this process, to question whether the Magistrate had made an order good on the face of it, on a mistaken interpretation of the law. A certiorari only lies where there is absolute want of jurisdiction, apparent either on the face of the order or on affidavit-The Queen v. Bolton (5). The examination and grounds of appeal form no part of the record; the question as to their sufficiency is simply for

(3) 8 Ad. & El. 394; s.c. 7 Law J. Rep. (N.s.) M.C. 109.

(4) Ibid. 398; s. c. 8 Law J. Rep. (N.s.) M.C. 1. (5) 1Q.B. 66; s. c. 10 Law J. Rep. (N.s.) M.C. 49.

the Court below-The Queen v. the Inhabitants of Bridgewater (6). If the contrary were held, it would be altogether unnecessary to take objections to the sufficiency of examinations by way of appeal; it would be the preferable course to remove them at once, by certiorari, into the court. Another consequence of the argument on the other side would be, that Magistrates removing, on an insufficient examination, would be liable in trespass, as acting without jurisdiction. But lastly, the examination, taking its several allegations together, sufficiently discloses the fact, that the paupers were inhabiting in the removing parish, and the complaint of the churchwardens and overseers is to be presumed.

Pashley, contrà.-[As to the objections on the face of the order, the argument is not reported, the Court being clearly of opinion that the order was sufficient.]—The Justices, in removing on an insufficient examination, act without jurisdiction; and that being so, the fact that an appeal was lodged could not give it. There are many exceptions to the general rule, that the Court will not, on an application for a certiorari, notice objections raised by affidavits, where they might have been brought before the Sessions by appeal-The King v. the Justices of Cambridgeshire (7); and one is, where Magistrates have acted without jurisdiction; and this may be shewn by the production of the evidence itself on which they acted, as well as by affidavit. That an order of removal, on an insufficient examination, is without jurisdiction, is affirmed by the Judges in many cases; for instance, per Lord Denman, C.J., in The Queen v. the Inhabitants of Alternun (8) and The Queen v. the Inhabitants of Middleton in Teesdale (9). It remains then only to examine, whether, in point of fact, the examination is defective in the particulars alleged. The only one returned, as that on which alone the order was made, is that of the pauper; and there is therefore no evidence of any complaint by the parish officers of Sheffield. A complaint

must appear The King v. the Inhabitants of Bourn (10), and The King v. the Inhabitants of Ufculm (11). It is true that the Justices recite it in their order; but they cannot create facts by reciting them. The fact of complaint, since the 4 & 5 Will. 4. c. 76, must appear in the examination, by strict analogy, as well as every other fact necessary to give jurisdiction-The Queen v. the Inhabitants of Outwell (12).

[COLERIDGE, J.-Ought we not to be contented with the statement in the order? An information brought before a Magistrate, which charges an offence within his jurisdiction, is sufficient to exempt him from liability in trespass, although the information not only discloses no legal evidence, but purports to be founded on inadmissible evidence-Cave v. Mountain (13).]

There is also no evidence of inhabitancy. It cannot be implied from the fact of chargeability, for the paupers might have been chargeable as casual poor-The King v. the Inhabitants of St. Lawrence, Ludlow (14).

Cur. adv. vult.

LORD DENMAN, C.J. now delivered the judgment of the Court.-This case came before us on a return to a writ of certiorari, whereby the Court of Quarter Sessions were commanded to return their order, confirming the original order of two Justices for the removal of certain paupers to the appellant township, and also the examination whereupon the original order was made, and the notice of appeal, to the Sessions; on which last nothing turns. The objections taken on that return consisted of two parts; first, that the original order of removal was defective on the face of it, for want of shewing jurisdiction in the removing Magistrates; and next that the examination whereon they proceeded was defective in not shewing that the paupers were at the time in the township, and that, therefore, they had no jurisIdiction to remove. Upon the first point, the form of the original order, the Court gave sufficient answers to the various ob

jections which were urged in the course of the argument. These we do not consider it needful to repeat. We then thought, and think still, that the original order is unobjectionable. We shall now only add, that we certainly should not be induced on so slight ground to overturn a form of proceeding, which we have reason to believe has been established by a usage of very near a century. The only objection which the Court have felt, as creating any difficulty, is, that it does not appear on the face of the examination, by the removing Justices, that the paupers, at the time of removal, were residing in the township, and that, therefore, there was no jurisdiction apparent for the removal. This objection involves consequences more extensive than may at first sight appear, as to the jurisdiction of the Court of Quarter Sessions, and as to matters into which this Court will inquire when the Sessions have undoubted jurisdiction over the subject brought under our consideration. It raises two questions of some importance: first, whether the writ of certiorari itself did not issue improvidently, so far as it required the return of the original examination and notice of appeal, the same forming a portion of the evidence submitted to the Sessions on the hearing of the appeal; next, whether, although returned, this Court ought to go further than to examine the validity of the original order, and of the order of Sessions, not examining the evidence on which they proceeded in a matter obviously within their ordinary jurisdiction, and when no case has been stated for our opinion as to the admissibility or effect of that evidence, or any part of it. Into these questions, however, we do not feel it necessary to enter; because, giving full effect to the objection, and judging the examination as by that objection we were called upon to do, we think it sufficient. The point for consideration is, whether, upon the face of the examination, by fair and reasonable intendment (and, by that rule we were desired to consider it), it does not sufficiently appear that the paupers were inhabiting in the removing township at the time of the examination and of making the order. And first, with respect to the mother, she is stated to be "of Sheffield," and her examination is taken by the removing Justices at Sheffield; moreover, she and the other paupers are stated

to be "chargeable at Sheffield." Now, this statement about the chargeability we find to have been considered by this Court as material upon that point of inhabitancy. In the case of The King v. Binegar (15), it was stated, on the order of removal, that the paupers "lately came and intruded themselves into the parish, endeavouring there to settle as inhabitants thereof;" and the objection to the order was, that the complaint did not state that the paupers then were in the parish, but "lately came into it," and so that the Justices had no jurisdiction. To this it was answered by the Court, that the order of the Justices adjudges it to be true, that the paupers are likely to be chargeable to the parish, "which could not be if they were not in the parish at the time." And there is certainly no ground for presuming any change of circumstances here, as the examination and order are by the same Justices, and bear date on the same day, the 3rd of September. From these circumstances, taken together, we think it sufficiently appears that the mother was then in the township of Sheffield. Then as to the children: the helpless infancy of the two youngest, three years and one year of age, raises a presumption of law and common sense, that they would be with the mother for custody and protection; the more so in this instance, as from the examination we find that their father was dead. As to the eldest, although the inference may not be so strong, he is nevertheless of an age up to which period that nurture is considered to extend. This, therefore, with the weight. we have seen attributed to a statement of chargeability, will, we think, suffice; and the rule must be discharged.