The Queen against The Inhabitants of St. Mary, Whitechapel.

QUEENS BENCH

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Original Citation: (1848) 12 QB 120

English Reports Citation: 116 E.R. 811

Wednesday July 12th, 1848.

[120] the queen against the inhabitants of st. mary, whitechapel. [Wednesday July 12th, 1848.] Pauper was residing in parish W. with her husband at the time of his death, which happened before the passing pf stat. 9 & 10 Viet. c. 66. The parish obtained an order for her removal, and served notice of chargeability, &c. Before actual removal, the statute passed, the widpw not having completed a residence of twelve calendar months from the husband's

(a)1 June 19th. Before Lord Denmaii C.J., Coleridge and Erie Js. (af Reported by H. Davison, Esq.

812 THE QUEEN t). ST. MARY, VVHITECHAPEL 12 J. B. 121

death. Held that, by sect. 2 of the statute, she was irremoveable till the com¡pletion of such residence, for that the clause, though prospective as to the removals contemplated, might be construed retrospectively as to the conditions under which removal should or should not be lawful. Held, also, that^ although the order was valid when made, it might be quashed on appeal, upon the widow being actually removed, after the passing of the Act, and within the twelve calendar months.

[S. C. 17 L. J. M, C. 172. Referred to, Salford Overseers v. Manchester Overseers, 1863, 3 B. & S. 603.]

On appeal against an order of justices, for removing Sarah, the widow of William Badraan, and her five children, from the parish of St. Mary Magdalen, Bermondsey, in Surrey, to the parish of St. Mary, Whitechapel, in Middlesex, the sessions con¡firmed the order, subject to the opinion of this Court upon a case, which was stated, in substance, as follows.

William Badman, the husband of the pauper, was residing in St. Mary Magdalen, Bermondsey, at the time of his death, which took place on 6th June 1846. His now widow, the pauper, was residing with him in the said parish at the time of his death. On llth August in the same year an order was made by two justices for the removal of the pauper and her five children from St. Mary Magdalen, Bermondsey, to St. Maty, Whitechapel, as the place of their legal settlement. A copy of the said order, together with a copy of the examinations and a notice of chargeability, was duly served on the churchwardens and overseers of St. Mary, Whitechapel, on the said llth August. On the 26th of the same month the Act 9 & 10 Viet. c. 66, was passed and came into operation.

On the 3d of September in the same year, the pauper and her children were removed by virtue of the said order from St. Mary Magdalen, Bermondsey, to St. Mary, [121] Whitechapel. Oa 1st October in the same year the notice and grounds of appeal against the said order of removal were sent by the churchwardens and overseers of St. Mary, Whitechapel, to the churchwardens and overseers of St. Mary Magdalen, Bermondaey : and the appeal, having been adjourned by consent at the October Sessions, came on for hearing and was heard at the Epiphany Quarter Sessions for Surrey. The pauper had continued to reside from the time of the death of her said husband until the said 3d September 1846, and, at the time of her removal under the said order, was residing in the said parish of St. Mary Magdalen, Bermondsey; and during all that time had continued, and at the time of her removal still was, a widow and unmarried.

At the hearing of the said appeal, no objection was taken to the form of the order of removal, nor to its validity at the time at which it was made; nor was any objec¡tion taken to the form of the notice or grounds of appeal; and the settlement of the pauper in the parish of St. Mary, Whitechapel, was not disputed : but it was contended on behalf of the appellants that, by the operation of stat. 9 & 10 Viet. c. 66, s. 2, the pauper was rendered irremoveable from the respondent parish on the said 3d day of September. On behalf of the respondents it was contended : first: that the provisions of tha said Act with reference to widows are not retrospective, and that, as the pauper had become a widow before the passing of the said Act, she was removeable : and, secondly, that, if the said Act be retrospective, and consequently the pauper was not legally removaable, yet, the order of removal having been good and valid at the time when it was made, such irremove-[122]-ability did not render the said order invalid, aud waa ho ground for quashing the said order on appeal.

The questions for the opinion of this Court were : first, whether the pauper was, under the circumstances stated, irremoveable at the time when the removal took place ; and, secondly, if she were then irremoveable, whether such irremoveability was a ground for quashing the said order on appeal.

If this Court should be of opinion that the pauper was removeable at the time when the removal took place, or that, although she was not then removeable, such irremoveability was no ground for quashing the order, in either or both of these cases the order of sessions was to be confirmed. But, if the Court sbould be of the contrary opinion on both points, then the order of sessions was to be quashed.

The case was argued in Trinity term, 1848 (a).

(a) June 10th. Before Lord Denman C.J., Patteson, Wightman, and Erie Js.

12 Q. B. 123. THE QUEEN V. ST. MARY, WHITECHAPEL 813

Wallinger and Knapp, in support of the order of sessions. First, sect. 2 of stat. 9 & 10 Viet. c. 66, which enacts "that no woman residing in any parish with her husband at the time of his death shall be removed, nor shall any warrant be granted for her removal, from such parish, for twelve calendar months next after his death, if she ao long continue a widow," is not to be construed retrospectively (b)1. The right to remove here was like a vested right of action ; and [123] it is laid down that the Courts will not give a retrospective effect to a statute, so aa to take away such rights; Gidmore v. Executors of Shooter (2 Mod. 310), Couch v. Jeffries (4 Burr. 2460). That doctrine is not disputed in TowUr v. Chntterton (6 Bing. 258); but, there, the words of the statute were conclusive: and in Binns v. Hey (1 Dowl. & L. 661), which may be cited, the language of the statute afforded grounds of decision which are not found here. In Hodgkinson v. Wyatt (4 Q. B. 749), the question whether the statute was retrospective or not became immaterial to the decision. But, secondly, supposing the clause to be retrospective, an appeal against the order did not lie. The order was made, and a copy served, with notice of chargeability, and a copy of the examina¡tions, on August llth : every thing, therefore, that was necessary to make the order perfect was done before August 26th when the Act passed. The removal took place afterwards, and was contrary to the statute ; but an appeal was not the mode of objecting to it. An appeal is against the order, that is, the judgment of the justices, not against the act of removal. This appears from the language of stats. 13 & 14 C. 2, c. 12, s. 2, 9 G. 1, c. 7, s. 8, 35 G. 3, c. 101, s. 2. In Begina v. Brixham (8 A. & E. 375), which may be mentioned on the other side, the order itself was not perfect for want ot notice of chargeability ; and a similar observation applies to Regina v. Mylar (11 Q. B. 55), where that case w;is relied upon. Bex v. Englefield (13 East, 317), cited in Begina v. Brixham (8 A. & E. 375), bears strongly upon the present [124] case. In Begina v. The Justices of Middlesex (a) the sessions had refused to hear an appeal, beeause the order of removal was made before the passing of stat. 9 & 10 Viet, c. 66, and the pauper was not removed till after, by which time she had resided five years; and a mandamus was granted, calling upon them to hear ; but Wightman J., who granted the writ, did not profess to decide the question of law. Although the removal cannot be appealed against, it does not follow that there is no remedy, if the appellants have a right to reject the pauper. They may refuse to receive her ; perhaps an indict¡ment might lie. There was no appeal against a vagrant pass (6)2. The present case is one which could only arise within less than a year after the passing of the Act, and probably was not thought of by the Legislature. " When the words of a law extend not to an inconvenience rarely happening, and do to those which often happen, it is good reason not to strain the words farther than they reach, by saying it is casus omissus, and that the law intended quse frequentiiis accidunt;" 19 Vin. Ab. 528, tit. Statutes (E, 6), pi. 157.

Pashley, contra. First: Gillmore v. Executor of Shooter (2 Mod. 310), was a very strong case of attempted interference with a vested right of action. But it ia not a general rule in the construction of statutes that vested rights can be taken away only by express words. The general right to bring error on a judgment has been [125] held to be annulled by necessary implication ; King v. Simmond/s (7 Q. B. 289), on stat. 1 & 2 W. 4, c. 58, Thorpe v. Plowden (2 Exch. 387), on stat. 6 & 7 W. 4, c. 71, s. 46. As was said in Butler and Baker's case (3 Rep. 25 a. 27 b.), Acts of Parliament, like wills, are to be construed "according to the intent," "and not by any strict or strained construction." The opinion expressed in Hodgkinson v. Wyatt (4 Q. B. 749), as to the retrospective operation of stat, 2 & 3 Viet. c. 37, s. 1, was part of a deliberate judgment. (He likewise noticed, as to the prospective or retrospective effect of statutory words, Doe dem. Evans v. Page (5 Q. B. 767), and the particular grounds of judgment there, Doe dem. Jukes v. Sumner (14 M. & W. 39), Nepean v. Doe dem. Knight

(6)1 This case was argued after Begina v. St. Pancras, p. 129, post, and while judg¡ment in that case was suspended. The Court gave judgment in the present case first, and more in detail than in Begina v. St. Pancras, for which latter reason it ia found necessary to print the cases in the order in which they were decided.

(a) 16 L. J. (N. S.) M. C. 135. S. C. II Jurist, 909. Bail Court, June 12th, 1847. This case had been cited by Pashley in Begina v. St. Pancras; see p. 132, note (c), post.

(fi)a 2 Nol. P. L. 238, 9, 4th ed.

814 THE QUEEN V. ST. MARY, WHITECHAPEL UQ. B. 126.

(2 M. & W. 894), and Hume v. Haig(i)). The word "residing," in sect. 2, though connected with the words "shall be removed," is not meant to confine the enactment to future residence ; it is a descriptive word, having the effect of an adjective, and referable to any time. So, in the first proviso of sect. 1, the words "shall be" are not meant to give the enactments a prospective operation, their intent being only to shew how the time mentioned in the first clause is to be calculated. It may be argued that the provision of stat. 10 & 11 Viet. c. 110, s. 1, with reference to that clause, does not favour the retrospective construction : but, as was said in Russell v. Ledsam (14 M. & W. 574, 589), "The province of the Legislature is not to construe, but to enact; and their opinion, not expressed in the form of law as a declaratory provision would be, is not binding [126] on Courts, whose duty is to expound the statutes they have enacted." A strong instance of this is found in the case of Dore v. Gray"(a). [Patte-son J. What has the construction of sect. 1 to do with this case on sect. 2 ?] The one cannot be wholly retrospective and the other wholly prospective. Secondly : it must be admitted that Regina v. The Justices of Middlesex (16 L. J. (N. S.) M. C. 135. 11 Jurist, 909), cannot be cited as a decision. But the appeal is regular. An appeal is always against the order, although that be not, strictly, the matter complained of. [Pattason J. Suppose the pauper is removed within twenty-one days after notice of chargeability.] In practice, the appeal is against the order: the grievance accrues under that. Before stat. 4 & 5 W. 4, e. 76, the only grievance which could so accrue was the removal: but that statute gives parties an interval for consideration between the making of an order and the actual removal, by directing the parish which has obtained an order to send a copy, with notice of chargeability: the parish may pause before doing so; but the sending these documents is an essential and not merely ministerial act; and, if it is omitted, or if, before it is done, some statutory impedi¡ment has arisen, the order itself becomes voidable, and must be avoided by appeal when the attempt is made to enforce it by serving notice or by removing; Regina v. Brizham (8 A. & E. 375), Regina, v. Westbury (5 Q. B. 500), Rex v. Penkridge (3 B. & Ad. 538), Regina v. The Recorder of Leeds (8 Q. B. 623).

Cur. adv. vult.

[127] Lord Denman C.J. now delivered the judgment of the Court.

In this case a valid order of removal was made before the passing of the statute; and the removal took place after that time. The pauper had become a widow on the 6th June 1846, before the passing of the Act, and was removed on the 3d of September, 1846. The sessions confirmed the order of removal, subject to two questions, of which we take the effect, and not the precise terms.

First: was the pauper irremoveable by stat. 9 & 10 Viet. c. 66, 8. 2, which enacted that no woman residing in any parish with her husband at the time of his death shall be removed, nor shall any warrant bo granted for her removal, from such parish for twelve months next after his death if she so long continue a widow ? It was said that the operation of the statute was confined to persons who had become widows after the Act passed, and that the presumption against a retrospective statute being intended supported this construction : but we have before shewn that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly f called a retrospective statute because a part of the requisites for its action is drawn I from tjme antecedent to its passing. The clause is general, to prevent all removaFs of the widows described therein after the passing of the Act; the description of the widow does not at all refer to the time when she became widow : and we are therefore of opinion that the pauper was irremoveable at the time she was removed.

The second question is : whether the removal of a person so rendered irremoveable is a good ground of [128] appeal against an order of removal valid at the time tt was mad el The circumstances raising this question are so peculiar that former authorities afford small assistance for deciding it. On the one hand the appeal is to be against the judgment of the justices: and, as that was valid, an appeal against it Ought not to be Sustained ; see Regina v. Glossop (ante, p. 117). On the other band, if the pauper was irremoveable, there is a grievance arising from the order, which cannot be redressed so conveniently in any other way as by appeal. On the whole, it appears to us that justice would be best effected by adjudging that the appeal should be

(i) 8 Bro. P. C. 196. See also Moen v. Durden, 2 Exch. 22. (a) 2 T. B. 358. See Regina v. St. Ebbes, post, p. 137, 140,

12Q.B.M9. THE QUEEN V. ST. PANCEAS 815

allowed, on the ground that the removal after the statute was illegal, although the order of removal, being before the statute, was valid.

As the judgment of the sessions was in favour of the respondents, and the judg¡ment that appears to ua right would be in favour of the appellants, we decide that the judgment of the Court of Sessions should be reversed in the manner above stated.

Judgment accordingly (6).