ed. From the time of the pauper's mother's marriage to the date of the indenture, the pauper lived with and was maintained by her and her husband, and after the binding and during the whole term of his apprenticeship the pauper continued to live with them. Pauper never served Lainton for a single day during the apprenticeship, at the trade of a bricklayer, nor was he ever by any one instructed in, nor did he ever work at such trade, but both before and after the binding was in the habit of working at odd jobbs about Lainton's house whenever he liked.

During the period of apprenticeship, he worked under contracts of hiring, entered into with his master's consent, with various persons in the said parish of Burslem, at the trade of a potter, paying to Thomas Lainton a portion of his wages for maintenance, and disposing of the rest as he thought proper.

The question for the opinion of the Court was, whether the facts disclosed established an inhabitancy in the parish of Burslem, sufficient to confer a settlement in that parish. If the Court should be of opinion that such facts did establish an inhabitancy sufficient to confer a settlement in Burslem, the order of Sessions was to be confirmed. But if the Court should be of a contrary opinion, the order of Sessions was to be quashed.

Whately and Godson, in support of the order of Sessions.-This question arises upon the statute 3 W. & M. c. 11. s. 8, which enacts, "that if any person shall be bound apprentice, by indenture, and inhabit in any parish, such binding and inhabitation shall be adjudged a good settlement." The binding and inhabitancy are the two things made necessary; but, here, the appellants seek to add a third conditionnamely, actual service. But service is not necessary. These questions have most frequently arisen, when the residence of the apprentice has been in a third parish, away from his master, in which cases it has been held requisite, that the residence or "inhabitancy" should be in some way in furtherance of the indenture-The King v. Charles(1), The King v. Linkinhorne (2),

(1) Burr. Sett. Cas. 706.

(2) 3 B. & Ad. 413, s. c. 1 Law J. Rep. (N.S.) M.C. 42.

and The King v. Banbury (3). On the other hand, in The King v. Ilkeston (4), where the residence apart from the master, was a mere act of indulgence on his part, and in no way connected with the indenture, no settlement was gained. Here, the residence was with the master during the whole term of the apprenticeship. It makes no difference that the pauper was an illegitimate son, as he had a legal home, at all events, as soon as he was bound.

V. Lee and Yardley, contrà.-As it is found by the case, "that the pauper never served Lainton for a single day, at the trade of a bricklayer, during the apprenticeship,' it must be contended on the other side, that a mere binding and inhabitancy is a sufficient compliance with the statute. Though the word "service" is not mentioned in the act, yet the objects of the indenture being maintenance and teaching, those objects are not carried out, where, as in this case, all service under the indenture, or in other words, teaching, is expressly negatived-The King v. Sandhurst (5), and The King v. Banbury. Where the acts or services of the apprentice have reference to the indenture, as in The King v. Charles, The King v. Linkinhorne, and The King v. Banbury, its objects are furthered, and a settlement is gained; but it is otherwise where, as in The King v. Ilkeston, the objects are in no way carried out. is expressly shewn to be the case here. If, as is here contended, a residence anywhere under the indenture is sufficient, The King v. Ilkeston was wrongly decided. But that case, and The King v. Barmby in the Marsh (6) shew, that in the present case there has been no sufficient compliance with the statute. The contracts of hiring that the pauper entered into had no reference to the indenture, but were inconsistent with it-The King v. Whitchurch (7), and The King v. Shipton (8), in which case, Lord Tenterden, C.J. says, "In order to gain a settlement by apprenticeship, there must be a continued service under the indenture. If

That

during the term of the apprenticeship, the apprentice hires himself to a stranger to the indenture, the service is not referable to the indenture, but to the contract of hiring; and, consequently, no settlement is gained by apprenticeship."

LORD DENMAN, C.J.-I am unable to distinguish this case from The King v. Linkinhorne. The order of Sessions must be confirmed.

PATTESON, J.-I am of the same opinion. I do not see how any doubt can arise, where there is a binding of the apprentice, and he actually resides with the master. WILLIAMS, J. and COLERIDGE, J. concurred.

1839.

Nov. 13.

}

Order of Sessions confirmed.

THE QUEEN V. THE INHABI-
TANTS OF FORDHAM.

Rate-Form-Appeal-Act to regulate Parochial Assessments, Construction of-Certiorari, Return to.

Section 2 of 6 & 7 Will. 4. c. 96. enacts, "That every rate made after the said period shall, in addition to any other particular which the form of making out such rate shall require to be set forth, contain an account of every particular set forth at the head of the respective columns, in the form given in the schedule to this act annexed, so far as the same can be ascertained; and the churchwardens and overseers, or other officers whose duty it may be to make and levy the said rate, or such a number of the said churchwardens and overseers, or other officers, as are competent to the making and levying of the same, shall, before the said rate is allowed by the Justices, sign the declaration given at the foot of the said form; and otherwise the said rate shall be of no force or validity:" -Held, that the words " of no force or validity" do not apply to the whole section, but to the latter part only, namely, an omission by the parish officers to sign the declaration.

A rate was made, containing the declaration, properly signed, and was allowed by the Justices, and published, and partially collected by the overseers; but upon discovering that it did not contain all the particulars

in the form in the schedule, the overseers abandoned it, and made another rate for the same period, which also contained the declaration properly signed, but was informal in other respects. An appeal was made to the Sessions against both these rates; and these defects of form were made grounds of appeal (amongst many others) to the first rate, but not to the second. The Court of Quarter Sessions quashed the first rate for defects of form, and they quashed the second rate as a concurrent rate, and therefore illegal, and also for informality:-Held, by this Court, first, that the Court of Quarter Sessions had no power to quash the rates for these defects of form, under the words of the 2nd section of the above act, nor had they power to quash the first rate under the notice of appeal on those grounds, as no grievance was shewn from the omissions; and that therefore the first rate was good: secondly, that the Sessions were right in quashing the second rate, as made for the same period as the first, and therefore bad.

If, by the return to the certiorari, a record not required by the writ is brought up, it is too late to take advantage of that upon the argument upon the order of Sessions. A substantive motion should be made to quash the return.

This was an appeal against two rates for the relief of the poor of the parish of Fordham, the first made the 3rd of July 1838, and the second upon the 22nd of August in the same year. The Court of Quarter Sessions quashed both the rates, with costs, for informalities (without inquiring into the merits of the cases, pursuant to the grounds pointed out by the notices of appeal), subject to the opinion of the Court of Queen's Bench upon the following

CASE.

On the 3rd of July 1838 the first-mentioned rate was made, and allowed by the Magistrates, duly published, and afterwards partially collected. In this rate, the properties rated were not numbered according to the schedule annexed to the act, 6 & 7 Will. 4. c. 96, but the numbers, for the most part, were wholly omitted, or else attached to the names of the occupiers instead of the properties. The columns intended for the number of votes were left

entirely in blank. The names of many persons were inserted without any sums being carried out against them in the assessment. In many places, the column which should contain the name of the occupier was left entirely in blank, without even the word "ditto" under the name immediately preceding the blank; and the column which should contain the "arrears due or excused" was improperly left in blank. These objections upon the face of the rate of the 3rd of July were made grounds of appeal, in the notice, against that rate, as also the objections-first, that in that rate no mention was made of the " present arrear"; second, that that rate was not in the form prescribed by the 6 & 7 Will. 4. c. 96. The notice of appeal also contained several objections to that rate upon the merits. The appellants, Thomas Peck and Eyre Coote and others, having refused to pay the sums for which they were therein rated, summonses were obtained against them, August 7, 1838. The parties summoned appeared before the Magistrates, August 14, and three warrants of distress were granted, but not acted upon by the respondents, in consequence of their solicitor afterwards considering the rate bad and void. The parish officers of Fordham, considering the rate of July 3 a nullity, on the 21st of August ensuing made another rate. That rate had various defects on the face of it; also, no entry was made under the head of "Amount not recoverable, or legally discharged." These objections on the face of the rate of August 21st, were not stated in the notice of appeal against that rate, but were incidentally noticed by the Court, and no point was made by the respondents that the notice did not raise them.

It appeared likewise, that the rate of August 21st was for the same period as that of July 3rd; the notice on the church door of the August rate stating it to be the first rate.

The notice of appeal against the second rate contained the following objections, amongst many others :-First, that the rate of the 3rd of July was and still is in existence. Second, that this second rate was a concurrent rate with the rate of the 3rd of July. Third, that the two rates ought not to exist together. Fourth, that

this second rate was not a rate made for the necessary relief of the poor, and the said rate was wholly unnecessary to be made.

The Court held, that the rate of the 3rd of July was informal, but that it could not be abandoned and treated as a nullity by the parish officers of Fordham, after the steps they had taken to enforce it, without an application to the Sessions to quash it.

With respect to the rate of the 21st of August, the Court held, that the rate of July 3rd being in existence and uncollected, that of the 21st of August was a concurrent rate, and illegal; besides which objection, it was bad on the ground of informality.

If the Court of Queen's Bench should be of opinion that the Court of Quarter Sessions were right in quashing both rates, on the facts above stated appearing, then the judgment of the Court of Quarter Sessions to be confirmed.

If the Court of Queen's Bench should be of opinion that the Court of Quarter Sessions were wrong, on the facts above stated, in quashing the rate of the 3rd of July, but were right in quashing the rate of the 21st of August, then the order of the Court of Quarter Sessions, as to the rate of the 3rd of July, to be quashed, and continuances being entered, if the Court should think the rate of the 3rd of July a subsisting rate, the appeal as to that rate to be heard on the merits, and the rate of the 21st of August to be quashed, with

costs.

If the Court of Queen's Bench should be of opinion that the Court of Quarter Sessions were wrong, on the facts above stated, in quashing the rate of the 21st of August, but were right in quashing the rate of the 3rd of July, then the order of the Court of Quarter Sessions, as to the rate of the 21st of August to be quashed, and, continuances being entered, the appeal on that rate to be heard on the merits, and the rate of the 3rd of July to be quashed, with costs.

If the Court of Queen's Bench should be of opinion that the Court of Quarter Sessions were wrong, on the facts above stated, in quashing either rate, then the、 order of the Court of Quarter Sessions, as to both rates, to be quashed, and, con

tinuances being entered, the appeal against both rates to be heard on the merits.

In pursuance of the first section of the 'Act to regulate Parochial Assessments,' (6 & 7 Will. 4. c. 96,) the Poor Law Commissioners issued an order under their seal of office, dated June 22nd, 1837, by which they ordered, "That from and after the 29th day of September in that year, no rate should be allowed by any Justice of the Peace, nor should any rate allowed on or after that day be of any force, which should not be made according to the provisions of the above act to regulate parochial assessments." And they further ordered and declared, "That every rate for the relief of the poor in England and Wales, made after the said 29th day of September, should be made in the form set forth in the schedule thereunder written, and should contain an account of every particular set forth at the head of the respective columns therein, so far as the same could be ascertained, and the declaration given at the foot of the said form being the same as is set forth in the schedule annexed to the said recited act, (the act to regulate parochial assessments,) as is thereby provided.

The schedule annexed to the above orders of the commissioners contained all the columns, and their respective headings, of the form in the schedule to the Act to regulate Parochial Assessments,' and it also contained six additional columns, under the heads-1. "Number of votes," after "Name of occupier." 2. 66 Number of votes," after "Name of owner.' "Total amount to be collected." "Amount actually collected." 5. "Present arrear." 6. " Amount not recoverable, or legally excused."

3.

4.

The schedule

annexed to the order of the commissioners also contained a declaration at its foot in precisely the same words and form as that contained in the schedule to the Act to regulate Parochial Assessments.'

The above orders, and the notice of appeal, and the rates, were referred to, and used in argument by both sides, and were considered as part of the case. The rates contained the declaration at the foot of them, properly signed.

Platt, Gunning, and Byles, in support of the order of Sessions.-This question turns

upon the construction to be put upon the 2nd section of the 6 & 7 Will. 4. c. 96 (1); and depends upon whether, under the words used there, a rate is absolutely void and a nullity, for want of a strict compliance with all the particulars of that section. It will be contended on the other side, that the words, " and otherwise the rate shall be of no force or validity," apply to the whole of the section; but the Court will not give to them that extended meaning, but confine them to the immediate antecedent, namely, the omission to sign the declaration given at the foot of the form. The July rate has that declaration properly signed, and is therefore a good rate. But secondly, even if the words should have the extended meaning contended for, the July rate could not be abandoned by the parish officers as a nullity-The King v. the Justices of Cambridge (2), but only became "of no force or validity" upon appeal to the Sessions. Words of similar import have had a restrictive meaning put upon them; as in Edwards v. Dick (3), upon the construction of the 9 Ann. c. 14. s. 1, and in Winchcombe v. the Bishop of Winchester (4), and the several cases there cited. If the more extended

(1) Section 1. provides, "That from and after such period, not being earlier than the 21st day of March next after the passing of this act (19th Aug. 1836), as the Poor Law Commissioners shall, by any order under their seal of office, direct, no rate for the relief of the poor in England and Wales shall be allowed by any Justices, or be of any force, which shall not be made upon an estimate of the net annual value of the several hereditaments rated thereunto" (and it then provides how that annual . value is to be ascertained).

Section 2. "And be it further enacted, that every such rate made after the said period shall, in addition to any other particular which the form of making out such rate shall require to be set forth, contain an account of every particular set forth at the head of the respective columns, in the form given in the schedule to this act annexed, so far as the same can be ascertained; and the churchwardens and overseers, or other officers whose duty it may be to make and levy the said rate, or such a number of the said churchwardens and overseers, or other officers, as are competent to the making and levying of the same, shall, before the rate is allowed by the Justices, sign the declaration given at the foot of the said form; and otherwise the said rate shall be of no force or validity."

(2) 2 Ad. & El. 370; s. c. 4 Law J. Rep. (N.S.) M.C. 8.

(3) 4 B. & Ald, 212. (4) Hobart, 165.

meaning is given to these words, and an informal rate is to be an absolute nullity, without appeal, when will the parties who made or collected it be safe from actions, if it should be discovered at some subsequent time that it was not made on the net annual value, or that some trifling particular was omitted? Then, the first rate was only voidable upon appeal; till then, it existed; and as these defects of form were made grounds of appeal, the Sessions have done right in quashing that rate. Then, as to the August rate, the overseers had no power to make it, whilst the July rate was a good and existing rate. In the notice of appeal, this rate is objected to, as concurrent and unnecessary. The Justices have so found, and were right in quashing it. The statute of Elizabeth does not enable the parish officers to make rates ad libitum, but only "weekly or otherwise," for the necessary relief of the poor. Thirdly, the return to this certiorari is bad. Upon this point, Mr. Byles contended, that the record returned by the Justices was not that required by the writ of certiorari, and that therefore the return was bad. He referred to Nolan, vol. 2, p. 591, and the cases cited there: sed,

Per Curiam-We consider that we cannot enter into this objection, now that the case is in the course of argument; it is too late to make such an objection. If there is any variance, such as is suggested, it might have been a proper ground for a substantive motion to quash the return, before the case came on for argument.

Biggs Andrews and Tomlinson, contrà. -As to the July rate, do the informalities pointed out in the case make that rate absolutely void, or only voidable by appeal? It is absolutely void under the second section of the act, as those are defects apparent on the face of the rate, requiring no extrinsic evidence upon appeal to make them so, and all done under it is voidThe King v. the Inhabitants of Stoke Damarel (5). It is a good test, to consider whether any decision of the Sessions, confirming that rate, could have made it valid. It could not, as they had no power under any statute, to amend those defects. Whe

(5) 7 B. & C. 563; s. c. 6 Law J. Rep. M.C. 28.

ther a rate is made upon the net annual value, is matter of substance, and may require evidence at the Sessions. The words of the second section require that all particulars shall be complied with, "and otherwise," unless all are observed, the rate shall be "of no force or validity." In The King v. Newcomb (6), a rate was held invalid, even after confirmation, upon appeal. The second rate then was a valid rate, and the Justices had no power to quash it, as the objections, as the case states, 66 were not stated in the notice of appeal against that rate, but were incidentally noticed by the Court." By the 41 Geo. 3. c. 23, the Justices can only adjudicate upon such matters in a rate as are made grounds of appeal, by a notice in writing-The King v. Bromyard (7), or such notice may be waived under certain circumstances. Here was no notice in writing of these defects or waiver. Nor was that rate "of no force or validity," on account of informality. The case speaks of "various defects," (which is not sufficiently explicit to enable this Court to consider them,) but only points out one, namely, that it contained no column under the head of " Amount not recoverable, or legally excused." The schedule in the act of parliament contains no such column, but it was added by the commissioners, which they had no power to do. The form given in the schedule contains a column for "Arrears due, or if excused," which shews impliedly, that a new rate may be made before the old one has been wholly collected, and that thus two may be in existence at the same time. The case has only found that the second was for the same period of time; and not that it was unnecessary.

LORD DENMAN, C. J.-This discussion upon the words used in the 1st and 2nd sections of this act of parliament, and the difficulties that have occurred upon similar phrases in other acts, may be the means of inducing the legislature to say, in what respects, and to what extent, a rate or instrument shall be void, when the directions respecting it have not been complied with. It is here contended, that under the words (6) 4 Term Rep. 368.

(7) 8 B. & C. 240; s. c. 6 Law J. Rep. M.C. 100.