Upon an appeal against the order of Edward Yardley, Esq., one of the Magistrates of the police courts of the metropolis, sitting at the Thames Police Court, at, &c., within the metropolitan police district, for the removal of Ann Sellers and her lawful child from the parish of St. George in the county of Middlesex to the parish of St. Marylebone in the same county, the Sessions confirmed the order, subject to the opinion of the Court of Queen's Bench on the following

CASE.

In

For three years and upwards previous to the application for the order of removal, the pauper, Ann Sellers, with her husband, William Sellers, resided in the parish of St. George. The pauper's husband, William Sellers, is a seaman, and in the course of his occupation had gone several voyages, at the termination of which he had always returned to and resided with his wife. the month of September 1848, he engaged himself in his ordinary occupation as a sailor, for a voyage to Calcutta and back, in the merchant ship the Queen, and immediately afterwards, in or about the same month of September, proceeded on his voyage. Previous to his so sailing, he made an arrangement with the owners of the said ship the Queen, whereby they were to pay to his wife (with whom the said child of the said Ann Sellers and her said husband remained for maintenance and care) during his voyage, the sum of 17. 5s. per month, being a moiety of his pay, and which sum was duly received by her from time to time. William Sellers is a native of Scotland, and has never done any act whereby to gain or acquire a legal settlement in England. Ann Sellers having become chargeable with her child (which is an idiot) to the parish of St. George, and her husband not having returned to England, an order was applied for and made on the 20th day of April 1849 (whilst her husband was so absent from her as aforesaid) for the removal of herself and child to the parish of St. Marylebone as the place of her maiden settlement, she, the said Ann Sellers, having, previous to her marriage. Iwith the said William Sellers, acquired a maiden settlement there by a hiring and service for a year. After the order was

made, namely, about the 20th of June in 1849, the said ship, the Queen, in which the pauper's husband had sailed, arrived at London, and the pauper's husband having completed his voyage, immediately returned to where his wife and child were living, in the said parish of St. George, and continued to reside there with them for about two months, at the expiration of which time the said ship the Queen again sailed for Calcutta and back, and the pauper's husband sailed on board her as before, having first made similar arrangements for the payment of part of his wages to his wife whilst he was on this voyage, and the sum of 1l. 5s. was duly paid her.

If the Court of Queen's Bench should be of opinion on the above facts that the pauper, Ann Sellers, was, at the date of the said order, removable on her maiden settlement to the parish of St. Marylebone, then the order of Sessions to be affirmed, otherwise the order of Sessions to be quashed.

Pashley, in support of the order of Sessions, was stopped by the Court, who called

on

No

Huddleston, contrà. The order contravenes the spirit of the poor law, the object of which was to prevent the separation of a husband from his family. If the removal be permitted, great hardship may be entailed on the husband, who is abroad in the performance of his ordinary duties, and who on his return may be deprived of the society of his wife, to which he is entitled. authority can be adduced to support the position that a wife may be transferred to the place of her maiden settlement, while actually or constructively residing with and under the controul of her husband. The settlement is suspended during his life, and can only be revived by a desertion on his part. The King v. St. Botolph (1) will probably be relied on by the other side. But that decision was founded on the autho

rity of four cases, all of which are distinguishable from the present. In St. Giles v. Margaret's (2) and The King v. Chiddingstone (3) the husband was dead. Uphottery v. Dunkswell (4) the order was

In

quashed, on the ground that it did not shew that the husband was not alive, and in Dunsfold v. Wilsborough Green (5), there had been an abandonment by the husband. Nor will the quitting of his wife by a husband for a short period be considered as equivalent to a desertion. In The Queen v. All Saints, Derby (6), desertion was defined to be an entire separation, and not a temporary absence. In The Queen v. Stogumber (7), the Court, acting on this principle, refused to sanction the removal of a woman whose husband was undergoing imprisonment for a limited period in a gaol situated in the parish where she was living. Here, the husband had left his wife merely to follow his usual business; he had a clear intention of returning; and his wife was during the time under his controul. But, further, the order, if confirmed, will become conclusive evidence of the settlement of the husband as well as of the wife-The King v. Woodchester (8), The King v. Hincksworth (9).

LORD CAMPBELL, C.J.-I am of opinion that the order of Sessions is perfectly valid, and must be confirmed. What was the state of things on the 20th of April 1849 when it was made? Ann Sellers, a married woman, was residing with her child in the parish of St. George, and had become chargeable thereto. Prima facie, therefore, she was liable to be removed. Her husband had, in the course of the preceding September, sailed for Calcutta without leaving adequate means of support for his family, and was at the time absent on the high seas. Under these circumstances, can it reasonably be contended that she could not be remov

ed? Had her husband possessed a place of settlement she might unquestionably have been sent there: he had none; but she had acquired one previous to her marriage by a hiring and service in Marylebone. It is contended that this maiden settlement remains suspended during the husband's life, or, at all events, until a separation has taken place, and that none has occurred. It does not, however, continue entirely

suspended during his life, since if he deserts her it will revive. Then, does the fact of his going to a distant part of the world and leaving her chargeable amount to a desertion? I think that it does, and that she was, therefore, properly removed to her maiden settlement. Much has been said of the hardship which may result to the husband from the adoption of the course we are pursuing; but I cannot see that there is greater cruelty or hardship in sending the wife to her own settlement than there would have been in sending her to his if he had had one, since he might on his return enjoy her society as well in the one place as the other.

PATTESON, J.-I entirely agree. The only question that we have to decide is, whether the absence of the husband was such as to amount to a desertion, and thus justify the removal of the wife to her maiden settlement. I consider that it was. With respect to the objection, that the confirmation of the order would be hereafter conclusive as to the settlement of the husband, I think that it cannot be sustained, for, as stated by Bayley, J. in The King v. Cottingham (10), during his absence the family will be maintained by the parish which is bound to maintain them, and on his return, it may pass him and his family to Scotland.

COLERIDGE, J. and WIGHTMAN, J. concurred.

1850.

Order of Sessions confirmed.

THE QUEEN v. THE CHAPEL

Nov. 20.S WARDENS OF BILSTON.

borrowed-Enlarging of Chapel-Consent Mandamus to Chapelwardens - Money of Vestry-Repayment out of Rates-Township not a distinct Parish—58 Geo. 3. c. 45.

The township of B. formed part of the parish of W, but it maintained its own poor, and from time immemorial it had chapelwardens and a chapel, in which divine service and the sacraments of the church had been performed. In 1727, for the first time, a separate burial ground for the township was consecrated, in which the rite of burial had since regularly taken place. The repairs of the chapel had always been

(10) 7 B. & C. 615.

defrayed by rates raised within the township; and the vestry books of B. shewed that several payments had been made to the churchwardens of W, but it did not appear that they were contributions towards the repair of the parish church. On the 30th of June 1825, it was resolved, by a majority of the vestry of B, duly convened for that purpose, that an offer of 550l. from the Society for promoting the Enlargement of Churches and Chapels should be accepted, and that the chapel should be enlarged, any deficiency in the expense to be made up by the sale of certain pews, and by rates under the act of parliament. It was also resolved to petition the Commissioners for Building New Churches, to erect a new church in the township, free of expense to the inhabitants. On the 29th of November 1827, the then chapelwardens duly executed a deed charging the chapel rates of the township with 600l. and interest, borrowed for the purpose of enlarging and rebuilding the chapel, a part of which had been paid off.

Held, first, that B. was not in itself a parish, within the meaning of the 58 Geo. 3. c. 45. s. 59. Secondly, that the resolution of the 30th of June did not contain a sufficient consent of the vestry to the borrowing of the 600l., upon the security of the rates, within the same section, and therefore that a mandamus under the 58 Geo. 3. c. 45. to compel the defendants to pay off the arrears of that amount out of the rates, could not be supported.

Mandamus under the 58 Geo. 3. c. 45. commanding the defendants to pay to the prosecutors, out of the funds in their possession and controul applicable to that purpose, the balance of 490l. 10s.; but if they had not such fund, or not sufficient to pay the whole sum, then in either case to raise, by means of rating the township of Bilston, a sufficient sum for that purpose.

The return by the defendant Cross (1) traversed several of the allegations in the writ of mandamus, and upon the trial of the issues joined thereon, before Coleridge, J., at the Stafford Summer Assizes, 1847, the prosecutors had a verdict upon all such issues, subject to the opinion of this Court

on a CASE.

(1) The defendants severed in their returns, and the return by the other defendant was demurred to.

The material parts of the CASE were, that the township of Bilston, locally situated within the parish of Wolverhampton, had constables and maintained its own poor, and did not contribute to the repair of the church of the parish of Wolverhampton. From time immemorial, also, Bilston had chapelwardens and a chapel, at which divine service had been performed; and the expense of repairing such chapel had always been defrayed by rates upon the possessors and occupiers of houses, lands, and tenements within the township, and not elsewhere. For very many years before the passing of the 58 Geo. 3. c. 45, being an act for building and promoting the building of additional churches in populous parishes, there had been a burial-ground attached to the chapel, at which the rite of burial had been regularly performed, and the sacraments of the church had been administered in the chapel. It appeared, from entries in the vestry books of Bilston, that from 1689 to 1752 various sums had been from time to time paid by the chapelwardens of Bilston to the churchwardens of Wolverhampton, supposed to be for the church of the latter. (The case set out several of the entries.) Bilston had no other burial-ground than the burial-ground of Wolverhampton up to 1727, the present burial-ground of the township having been consecrated in that year. In the same vestry books there appeared a copy of a memorandum, therein described to be made by the clergy, chapelwardens, and inhabitants of the chapelry of Bilston, whereby the clergy of Bilston promised to receive for the clergy of Wolverhampton Church 7d. for the burial of every corpse in the chapelyard of Bilston, 14d. for the burial of every corpse in the chapel of Bilston, and also a choir fee of 5s. for every corpse buried within the said chapel. Other entries shewed that payments were accordingly made to the clergy of Wolverhampton from 1727 to the 10th of November 1740, but no later; also that a payment of 10d. on the churching of women in the chapel had been made to the clergy of Wolverhampton during the same period and no later. Further, too, that marriages by licence and by banns were solemnized in the chapel from 1695 to 1754, after which time there was no entry of a marriage

pro

having been solemnized until about 1843, when the chapel became licensed for the solemnization of marriages under the act for the registration of births, deaths and marriages. On the 30th of June 1825, a vestry meeting was duly holden in the school-house adjoining the chapel, pursuant to a notice duly given, which stated the purpose of the meeting to be the consideration of letters received from the Society for moting the Enlargement and Building of Churches and Chapels, and to determine upon the acceptance of an offer by the Society for the enlargement of the present chapel, and to resolve whether a sum of money to make up any deficiency in completing the same, be raised upon the rates according to the act of parliament; at which meeting it was, amongst other matters, resolved by a majority of twenty-three to eight, that the sum of 550l. offered by the Society for promoting the Enlargement and Building of Churches and Chapels should be accepted, and that the chapel be enlarged, &c., any deficiency in the expense to be made up by the sale of forty of the private pews, and by rates under the act of parliament. It was also resolved that a petition should be presented to the Commissioners for Building New Churches, praying them to erect a new church within the township, free of expense to the inhabitants. On the 15th of April 1827, J. P. and T. B. were duly appointed chapelwardens of Bilston. On the 29th of November 1827, the said J. P, T. B, and the incumbent of the chapel, and one J. D, a former chapelwarden, executed a deed of charge, by which, after reciting the above vestry meeting, a faculty dated the 12th of January 1826, under the seal of office of the official principal of the peculiar and exempt jurisdiction of the collegiate church of King's Free Royal Chapel of Wolverhampton, within which jurisdiction the said chapel and chapelry were situate, and a faculty dated the 14th of November 1827, under the hand and episcopal seal of the Lord Bishop of Lichfield and Coventry; after reciting also that T. B. had agreed to lend the sum of 600l. to be secured upon the chapel-rates, towards enlarging and rebuildingt he chapel, to be repaid with interest at the rate of 51. per centum per annum, payable half-yearly,

NEW SERIES, XX.-MAG. CAS.

the said principal sum to be repaid, 3007. thereof on the 29th of November 1838, and 3007. on the 29th of November 1839, the said J. P. and T. B. and the said J. D. did, by and with the consent of the said bishop and the said incumbent, and under the authority of the several acts passed for the building and promoting the building of churches in populous parishes, or some or one of them, charge the township of Bilston with the said sum of 600l., and with the repayment thereof according to the terms and conditions above stated, the same to be chargeable upon the chapelrates then or thereafter to be raised in the said township, until fully repaid with interest. The works at the chapel, on account of which the above 600l. had been lent, were done according to a plan approved by the vestry on the 30th of June 1825, and were finished in 1827, when the chapel was re-opened for divine service. T. B. died on the 5th of September 1844, having appointed the prosecutors his executrix and executor. The principal sum of 600l. had been reduced by payments made from time to time by the chapelwardens to 4907. 10s., which remained due, and the defendants who were the chapel wardens of the township, and had been since the 8th of April 1844, had in their hands 7607., arising from rates made for the purpose of paying off the monies legally borrowed on the credit of the rates.

The defendants' objections, amongst others, were, that the 58 Geo. 3. c. 45. did not apply to the township and chapel of Bilston, being within the parish of Wolverhampton, and not itself a parish. That the above resolution of the vestry was not a sufficient consent of the vestry to the borrowing of the 600l., and that the money in the defendants' hands was not applicable to the payment of the debt in question.

If the Court decided in favour of the defendant upon these points, the verdict was to be entered for him upon certain of the issues particularly specified.

Alexander (Whateley and Gray with him), (Nov. 9), in support of the mandamus.— The first and substantial question is, whether Bilston can be considered as a parish within the meaning of the 58 Geo. 3. c. 45. s. 59, the vestry of which could give a a legal assent to the enlarging of the chapel.

K

The intention of the act, as appears from the preamble, is general, and the section speaks of the enlarging of existing chapels. It gives power to the churchwardens of any parish, with the consent of the vestry or select vestry, or persons possessing the power of the vestry, and of the bishop and incumbent, to borrow upon the credit of the rates of any such parish, such sum of money as shall be necessary for defraying the expense of enlarging or otherwise extending the accommodation of the existing churches or chapels of such parish, and to make rates for the payment of interest and repayment of the principal sum. This is a chapel possessing the parochial rights of sepulture, baptism and other rights, and clearly within the intention and meaning of that section. In Coke's 2nd Inst. 363, it is said," When the question was whether it were ecclesia aut capella pertinens ad matricem ecclesiam, the issue was whether it had baptisterium et sepulturam, for if it had the administration of sacraments and sepulture, it was in law judged a church." And in Degge's Parson's Counsellor, 7th ed. 227, it is stated that chapels with parochial rights "differ in nothing from churches but in the want of rectories and endowments, the mother being to be served before the daughter." The same principle, too, is adopted in The Attorney General v. Brereton (2). Upon authority, therefore, this is a parish within the 59th section, and therefore not to be excluded from so beneficial an act. Then, as to the second objection, that the resolution of the vestry was not a sufficient consent to borrow the money. If the terms of the resolution are not in strict compliance with the 59th section of the act, in that respect, the notice, in pursuance of which the resolution was passed, may be referred to, and there it would be found that the borrowing of the money is expressly mentioned as the purpose of the meeting-Blunt v. Harwood (3). The rates can only be applied to the payment of money, which the section authorizes the vestry to borrow. The act contemplates expenses being incurred, and the borrowing of money to pay them off, and

(2) 2 Ves. sen. 427.

(3) 8 Ad. & E. 611; s. c. 7 Law J. Rep. (N.s.)

M.C. 107.

the resolution should be presumed to be according to the act.

[COLERIDGE, J. referred to the 59 Geo. 3. c. 134.]

Here, the statute especially referred to is the 58 Geo. 3. c. 45, and under that it was that the vestry proceeded, and rightly.

Keating (Kettle with him), contrà.Bilston is merely a township, and not a parish, and the 5th section of the 59 Geo. 3. c. 134. shews that the legislature did not intend the act in question to include a township. The sacrament and burial test given by Lord Coke, must refer to an immemorial existence of those rites, and cannot be taken as an authority for considering Bilston as a parish since 1728, up to which time it is expressly found that it contributed to the church rates of the mother parish of Wolverhampton; secondly, to bring the case within the 58 Geo. 3. c. 45, a consent by the vestry must be shewn. The resolution is, merely to raise rates for any amount which might be deficient, and is not, as it ought to be, a distinct consent to borrow a sum of money on the credit of the rates;-in other words, going to the full extent of the charge sought to be enforced. The vestry seems really to have acted under the 59 Geo. 3. c. 134, the 25th section of which requires just the majority stated here, whilst under the 58 Geo. 3. c. 45. a bare majority only is required. Their whole proceeding shews that they so acted. It is necessary that the money should appear to have been legally borrowed, and upon the face of the resolution that does not appear.

Alexander, in reply. - The right of sepulture is only one of the indicia of a parish. parish. This township, it is found, has supported its own church from time immemorial.

Before

[LORD CAMPBELL, C.J.-It is shewn that once it was part of a parish, and that throws upon you the burthen of shewing that it has ceased to be so. 1727 it had no cemetery, and merely obtaining a cemetery would not make it afterwards a parish.]

The act in question ought not to be construed too strictly, and may fairly be taken to apply to a district having certain essentials of a parish, and called by the name of a parish, and there need not be a