Pashley, contrà. First: before stat. 13 & 14 C. 2. Queen's Bench,

c. 12., there was no power of removing a pauper, merely
as such and sect. 1 of that statute gives no authority
to remove except to a place in which a person has
been settled "for the space of forty days at the least.”
[Coleridge J. If you contend that "for the space of
forty days" applies to all the preceding words, try that
by striking out the words after "native." Then what
meaning can you give to the words "native for the
space of forty days?"] The word "settled" is the
word connected with the words "for the space of
forty days." It is argued that general convention
has superseded this enactment; but the passage cited
from 4 Burn's J., 411, shews that this is not undis-
puted: and, even if it were so, this could not repeal
an express enactment; Rex v. Eriswell (a): and the
power of removal is merely the creation of the legisla-
ture; Rex v. Saighton-on-the-Hill (b). Stat. 12 R. 2.
c. 7. was directed against vagrants who, if they could not
work, and the towns where they were found could not
maintain them, were to be removed to their place of
birth. By stat. 11 H. 7. c. 2. it was enacted that every
beggar not able to work should resort to the hundred
where he last dwelled, was best known, or was born.
Stat. 43 Eliz. c. 2. first established a compulsory power
to raise a fund for the relief of the poor generally.
It is clear that these enactments must, so far as regards
the pauper, be construed strictly, as they are penal in
their nature and origin. This was manifestly so under-
stood in 11 James 1.; when Flemming C. J., in a case
of Weston and Cowledge (c), mentioned in Dalton, said
that young children, whose parents were dead, were
(b) 2 B. & Ald. 162. 164.

(a) 3 T. R. 707. 725.
(c) Dali. Just. 168. ed. 1742.

1846.

The QUEEN

V.

The Inhabitants of WATFORD.

not to be removed to their place of birth, unless they
should wander abroad and beg, because, if the parents
were not rogues, the children were not to be made so.
It is added, in Dalton (p. 169), that some had holden
that a justice might remove and settle the poor generally,
subject to appeal to Quarter Sessions; but that Sir
Francis Harvey, A. D. 1629, had laid down that justices,
especially out of sessions, were not to meddle with the
settling or removing of any poor but only of rogues.
And Lambard (Duties of Constables, 51, ed. 1619) states
that by the Resolutions of the Judges only rogues could
be removed. After stat. 43 Eliz. c. 2., in 5 C. 1, the
Judges of assize resolved (a) “that the place of birth,
or the place of their last habitation (if the same may be
known) are in judgment of law said to be the places of
settling." It appears therefore that, before stat. 13 &
14 C. 2. c. 12., permanency of residence was looked to.
[Erle C. J. Then what did the legislature mean by
giving a settlement to a person settled as a native for
forty days? The mere settlement for forty days would
have been enough without the statute.] Till the sta-
tute, there was no settlement in the modern sense of
the word. That is what the statute gave, if it gave
any thing, which is not clear. [Coleridge J. Then
what was the condition of a bastard ?] He could not
be removed from the place where he was born. That
the question now before the Court has not previously
arisen is attributable to the fact that a person ordi-
narily resided forty days in his place of birth.
now that written documents have become necessary for
shewing a settlement, the question must arise, wherever
such residence is not expressly shewn. Even in the

(a)2 Bulst. 352.

But,

1

1846.

The QUEEN

V.

present case, where the question has so arisen, it is Queen's Bench. probable that in fact there was a residence. If there be any ambiguity in the language of the statute, the construction will be adopted which most favours the The Inhabitliberty of the subject, that is, the construction least favourable to the power of removal.

Next, as to the chargeability. The objection is sufficiently raised by the grounds of appeal. Regina v. Flockton (a) shews how generally objections may be framed. Regina v. Bradford (b) is an authority for requiring a strict statement of the chargeability to the particular parish. [Coleridge J. That case seems to have turned merely on the question how far the officer giving the relief was entitled to place it to the account of a particular parish.] It cannot be inferred, from the fact of relief, that the pauper was resident in the parish at the time. Regina v. Rotherham (c) has been cited; but there the point arose upon certiorari, no case being stated. At any rate, the doctrine that examinations are to be construed by reasonable intendment must now be considered as overruled. Parties whose case depends on a particular combination of facts must shew by evidence how those facts stood, and not require it to be assumed; Castrique v. Bernabo (d).

Next, the husband's settlement should have been ascertained, or the fact that he had no settlement should have been established. In Regina v. Birmingham (e) it does not appear to have been pressed on the Court that the pauper was described as a widow, so that the order would be evidence of the settlement of her husband;

(a) 2 Q. B. 535.

(b) 8 Q. B. 571.; note (h) to Regina v. Hartpury. See Regina v. Little Marlow, 10 Q. B. 223.

ants of WATFORD.

Volume IX. 1846.

The QUEEN

V.
The Inhabit-

ants of WATFORD.

Rex v. Rudgeley (a). That is so here. The examinations, therefore, do not support the removal of the pauper as widow.

Lastly, the order shews no jurisdiction; an objection which need not be specified in the grounds of appeal. The overseers alone appear to make the complaint; not the overseers and churchwardens, nor the majority of the whole body, nor a part authorized by the rest. The objection was held fatal in Rex v. Fairfax (b). That a majority of the whole body must concur, is shewn by Regina v. The Justices of Cambridgeshire (c). In Ex parte The Overseers of Harnley (d) it was held that a guardian of a township must, in signing a document to take effect by virtue of that office (under stat. 22 G. 3. c. 83.), describe himself as guardian, and that it is not enough to describe himself as overseer. [Erle J. referred to Regina v. Bedingham (e).] The objection there overruled was, that a written complaint was signed by one party only, though all concurred: here the objection is, that no concurrence is shewn. [Erle J. The overseers are the churchwardens and other substantial inhabitants, by stat. 43 Eliz. c. 2. s. 1.] That answer, if valid, would have prevailed in Rex v. Fairfax (b).

Lord DENMAN C. J. It appears to me that none of the objections, as taken in the grounds, can prevail. The first is, that it does not appear that the pauper was actually chargeable to the removing parish at the time of the making of the order. I think I can, in common sense, read this only as an objection that the

(a) 8 T. R. 620.
(c) 7 A. & E. 480.
(e) 5 Q. B. 653.

(b) 3 Mod. 269 271.
(d) 1 D. & L. 673.

1846,

The QUEEN

V.

ants of WATFORD.

fact of chargeability does not appear. If the appellants Queen's Bench. had said that the residence of the pauper at the time of the relief ought to have been stated, that would have raised the point now made. The second objection is, The Inhabitthat the examinations are insufficient, as failing to shew that the pauper inhabited in the appellant parish for forty days. That raises the question as to the meaning of the provision in sect. 1 of stat. 13 & 14 C. 2. c. 12., giving power of removal to the place where a pauper was "last legally settled, either as a native, householder, sojourner, apprentice or servant, for the space of forty days at the least." The act seems to me both to recite and infer that there may be a legal settlement by the mere fact of being a native. It is important to keep in view the state of the law, with which we must assume that the legislature was acquainted, when that statute passed. Now birth of itself clearly then conferred a settlement. Every one who has attended quarter sessions must know that birth alone has been always held sufficient to confer a settlement. The traditional view, referred to in 4 Burn's Justice, 411, even if the language of the statute did not go so far, must have existed for a long time. The third objection is, that there is no evidence shewing that James Lewis, whose widow the pauper is, was settled in the appellant parish; and the fourth objection is, that it does not appear that his settlement cannot be ascertained. The validity of these objections depends upon the question whether Regina v. Birmingham (a) was rightly decided. Mr. Pashley does not object to the doctrine that, the settlement of a female in her own right being shewn, it is in general no answer that she had a husband of whose settlement nothing is known: but he raises a very in(a) 8 Q. B. 410.