1842. Nov. 9.

THE QUEEN v. THE INHABI-
TANTS OF HENDON.

Settlement-Estate-Inhabitation.

The enactment of 4 & 5 Will. 4. c. 76. s. 68, "that no person shall be deemed to retain any settlement gained by virtue of any possession of any interest or estate in any parish, for any longer or further time than such person shall inhabit within ten miles thereof," applies only to the settlement of the individual who possesses the interest, and not to any settlement acquired by derivation through him.

Where, therefore, a person possessed of an estate went to reside more than ten miles from the parish in which it lay, together with his son:-Held, that the son retained a derivative settlement in that parish, and this, whether he was emancipated or unemancipated at the time of leaving it.

On an appeal to the Quarter Sessions for Middlesex, against an order whereby John Davis was removed from the parish of Hendon to the parish of Euston, in the county of Oxford, the Court of Quarter Sessions quashed the order, subject to the opinion of the Court on the following

CASE.

The pauper was the legitimate son of Thomas Davis, and had not acquired any settlement for himself. In the year 1815, the pauper's father married Sarah Gregory,

who, at the time of the marriage, was the yearly tenant and occupier of the Corn public house, situate in the appellant parish, at the yearly rent of 91. The pauper's father resided in and occupied the same house for several years after his marriage: and he continued to reside in the same parish until the pauper became of age and emancipated. After the emancipation of the pauper, and after the passing of the statute 4 & 5 Will. 4. c. 76, both the father and pauper removed to a greater distance than ten miles from the appellant parish, and continued beyond that distance until the pauper became chargeable to the respondent parish, and was removed by the present order. by the present order. The question for the opinion of the Court was, whether, under the circumstances stated, the pauper was settled in the appellant parish when the order of removal was made.

Kelly, in support of the order of Sessions. -This case turns on the Poor Law Amendment Act, 4 & 5 Will. 4. c. 76. s. 68, by which it is enacted, "that no person shall be deemed, adjudged, or taken to retain any settlement, gained by virtue of any possession of any estate or interest in any parish, for any longer or further time than such person shall inhabit within ten miles thereof;" and the Court of Quarter Sessions has been of opinion, that this enactment applies as well to a derivative settlement, gained by a son through his father's possession of an estate, as to the original settlement of the father

himself. It is submitted, therefore, that where both father and son have removed beyond the specified distance, the son can gain no settlement by estate through the father. If the child had been unemancipated, it would have gained any settlement which the father might have subsequently acquired: which is an additional reason for considering that it is destroyed along with the father's.

[COLERIDGE, J.-But supposing that the father might regain his settlement by returning: do you contend that the son would not regain it also?]

Rawlinson, contrà, was not heard.

LORD DENMAN, C.J.-This case appears to me perfectly clear. I think that the settlement put an end to by section 68, is that gained by the person himself; but not a settlement gained by derivation through him: otherwise it might be possible to go back three or four generations, and destroy an existing derivative settlement, by proof that one ancestor had ceased to reside on his estate.

WILLIAMS, J. concurred.

COLERIDGE, J.-If the child had been unemancipated in this case, it would have retained its own settlement, until the father acquired a new one, when its settlement would follow the father's.

WIGHTMAN, J. concurred.

Order of Sessions quashed.

[IN THE EXCHEQUER OF PLEAS.] 1842. Nov. 9.

}

MORGAN v. LEACH AND AN-
OTHER.

Justice of the Peace-Notice of ActionSignature and Service-Conviction-Highway-5 & 6 Will. 4. c. 50. ss. 20 & 73.

A notice of action to a Magistrate, indorsed by the attorney for the plaintiff, is not bad by reason of its being signed by the plaintiff, or of its being served not by the attorney, but by his clerk.

The defendants, who were Magistrates, directed the plaintiff, a surveyor of highways, to remove a certain nuisance from the highway, and to fence a pit that was dangerous, and,

*This case is reported by H. Horn, Esq.

on his neglecting to do so, convicted him in a penalty for having "wilfully neglected his duty in not removing or causing to be removed certain nuisances in and upon a certain highway in the said parish, &c., and not duly guarding a dangerous pit lying on the side of the said highway" :-Held, that the conviction was not warranted by the 20th or 73rd section of the Highway Act, 5 & 6 Will. 4. c. 50, and that it could not be supported.

Trespass against two Magistrates for assault and false imprisonment.

Plea-Not guilty, by statute.

At the trial, before Rolfe, B., at the last Pembrokeshire Summer Assizes, the following facts were proved:-The defendants, who were Magistrates of the county of Pembroke, having been informed that a dangerous pit existed in the neighbourhood of a certain highway, and that a quantity of dung had been thrown upon the highway by the plaintiff, who was the surveyor, directed him to remove the nuisances and to fence the pit, and, on his neglecting to do so, convicted him under the Highway Act, 5 & 6 Will. 4. c. 50 (1). The terms of the conviction were, that the plaintiff had "wilfully neglected his duty in not removing, or causing to be removed, certain nuisances in and upon a certain highway in the said parish, &c. and not duly guarding a dangerous pit lying on the side of the said highway." The plaintiff was kept a short time in confinement under the above conviction. The notice of action, as required by the statute 24 Geo. 2. c. 44. s. 1. (2), was signed by the plaintiff, indorsed by the attorney, and served by the attorney's clerk.

(1) The sections under which the conviction was attempted to be supported were, the 20th and 73rd. The 20th section is as follows:-"That if any surveyor or district surveyor, or assistant surveyor, shall neglect his duty in anything required of him by this act, for which no particular penalty is imposed, he shall forfeit for every such offence any sum not exceeding 51." The 73rd section enacts, "That if any dung, &c. shall be laid upon any highway, so as to be a nuisance, and shall not after notice given by the surveyor be removed, it shall be lawful for him, by order of a Justice, to remove the dung, &c. and dispose of the same, applying the proceeds to the repair of the highway.'

(2) This section is as follows: "Be it enacted, that no writ shall be sued out against, nor any copy of any process, at the suit of a subject, shall be served on any Justice of the Peace, for anything by him done in the execution of his office, until notice in

On the part of the plaintiff, it was contended, that the conviction was bad, and that the defendants were not warranted under the 73rd or 20th section of the act in convicting the plaintiff.

On behalf of the defendants, it was urged, that the plaintiff ought to be nonsuited, on the ground, first, that the notice of action was served by the attorney's clerk, and not by the attorney; and, secondly, that the notice was signed by the plaintiff, and not by the attorney. The learned Judge thought that the conviction could not be supported, and overruled the defendants' objections; and the jury having found a verdict for the plaintiff, his Lordship gave the defendants leave to move to enter a nonsuit.

Evans now moved accordingly. — The notice of action, having been signed by the plaintiff, is bad; it ought to be signed by the attorney. The utmost strictness is to be observed in the construction of the 24 Geo. 2. c. 44. In Taylor v. Fenwick, cited in Lovelace v. Curry (3), Lawrence, J., adverting to the present statute, says, "The statute has prescribed a form which must be implicitly followed; and it admits of no equivalent. The statute was made to introduce a strictness of form in favour of Justices, and it must be observed literally." In Bennett v. Broughton, reported in The Justice of the Peace,' vol. 2, p. 759, which was an action against a Magistrate, it was objected by the defendant, that the notice of action was bad, as it was signed by the plaintiff, and not by his attorney; whereas the statute required that it should not be the notice of the party, but of the attorney or agent; and Lord Abinger, C.B., who tried the case, said, "With regard to the first objection, as I am not quite so clear upon that, I will not give any decided opinion, though I have an inclination in favour of the objection." The opinion there intimated has been recognized in subsequent cases. Secondly, the service of the notice of action is bad, having been made

writing of such intended writ or process shall have been delivered to him, or left at the usual place of his abode, by the attorney or agent for the party who intends to sue or cause the same to be sued out or served, at least one calendar month before the suing out or serving the same, in which notice shall be clearly and explicitly contained the cause of action which such party hath or claimeth to have against such Justice of the Peace."

(3) 7 Term Rep. 635.

not by the attorney himself, but by his clerk. This is contrary to the act of parliament, the intention of which was that the service should be by some party who was authorized to receive amends. Secondly, the Judge misdirected the jury as to the validity of the conviction, for the plaintiff was properly convicted of a breach of duty, either under the 20th or the 73rd section of the act.

LORD ABINGER, C.B.-I think there is no ground for a rule in this case. The act requires the service to be by the attorney, and accordingly it is effected by the attorney's clerk. That is equivalent to a service by the attorney himself. Secondly, the notice is not bad by reason of its being signed by the plaintiff. The attorney has indorsed it, and that is sufficient. Thirdly, there is no ground for a rule in respect of the Judge's direction, for I think the conviction cannot be supported.

PARKE, B.—I am of the same opinion. The signature of the plaintiff did not vitiate the notice; it was an unnecessary act: the statute does not say that the notice shall be signed by anybody. Secondly, it was not necessary that the attorney should serve the notice with his own hand. Thirdly, the conviction is bad. The 73rd section does not make it incumbent on the surveyor to remove nuisances; it empowers him to give notice to the parties placing them there to remove them. Again, the act imposes no obligation on him to fence places that are dangerous.

GURNEY, B.-The act does not make personal service upon the Magistrate necessary in this case. Nor is it requisite for him to tender amends at the time of giving the notice. The statute allows him a month for that purpose.

ROLFE, B. concurred.